101(a) of the National Emergencies Act, P.L. 94-412, Sept. 14, 1976, 90 Stat. 1255, 50 U.S.C. 1601(a) at the end of the two-year period beginning on the date of enactment of of the National Emergencies Act, i.e., on Sept. 14, 1978. (Sec. 5(b) of the Trading with the Enemy Act (12 U.S.C. 95a; 50 U.S.C. App. 5(b)) had been exempt from the applicability of the National Emergencies Act by sec. 502(a)(1) of the latter, 50 U.S.C. 1651(a)(1). In regard to the National Emergencies Act, see, further, this Chapter, post, pp. 794-795.)

Sec. 101(b) of P.L. 95-223 also authorized the President to extend the exercise of such authorities for one-year periods upon determining for each such extension that the exercise of such authorities with respect to such country for another year is in the United States national interest. (Under sec. 101(c) of P.L. 95-223, the termination and extension provisions of sec. 101(b) supersede the provisions of par. (a) of sec. 101 (Termination of existing declared emergencies), of the National Emergencies Act (see, post, p. 794) and of its Title II (Declarations of Future National Emergencies), 50 U.S.C. 1621 et seq., to the extent that the provisions of sec. 101(b) are inconsistent with those provisions.)

Successive annual Presidential determinations extended the exercise of certain authorities under the Trading with the Enemy Act, which would have otherwise terminated on Sept. 14, 1978 as a result of the repeal by sec. (101)(b) of P.L. 95-223, ante, of the (temporary) exemption for sec. (5)(b) of the Trading with the Enemy Act from the provisions of the National Emergencies Act (see its sec. 502, 90 Stat. 1258, 50 U.S.C. 1651). See, the 1978 Digest, pp. 1358-1360, and the 1979 Digest, pp. 1458-1460. See, further, Fed. Reg., Vol. 46, No. 176, Sept. 11, 1981, p. 45321; ibid., Vol. 47, No. 176, Sept. 10, 1982, p. 39797; ibid., Vol. 48, No. 176, Sept. 9, 1983, p. 40695; ibid., Vol. 49, No. 179, Sept. 13, 1984, p. 35927; ibid., Vol. 50, No. 174, Sept. 9, 1985, p. 36563; ibid., Vol. 51, No. 164, Aug. 25, 1986, p. 30201.

(Title II of P.L. 95-223, approved Dec. 28, 1977, 91 Stat. 1626-1629, 50 U.S.C. 1701-1706, constituted the International Emergency Economic Powers Act, in regard to which see this Chapter, post, pp. 794-795.)

Assets of the Shah of Iran

Following the receipt of information through the Government of the Federal Republic of Germany on September 9, 1980, that the Iranian Government wished to open discussions to settle the hostage crisis, and the announcement of the Iranian conditions for releasing the hostages ("the return of the deposed Shah's wealth and the cancellation of all the United States claims against Iran, a guarantee of no United States military and political interventions in Iran and the freeing of all our investments"-see this Digest, Ch. 13, §1, post), Attorney General Benjamin R. Civiletti requested the views of the Office of Legal Counsel of the Department of Justice concerning the President's power to settle the current crisis with Iran without the enactment of additional legislation.

In a memorandum dated September 16, 1980, Assistant Attorney General John M. Harmon concluded that the President had the power under the Constitution and under existing statutes to enter into an agreement with Iran settling the principal outstanding issues and to implement the agreement in an effective fashion.

The fourth and final point which Mr. Harmon examined in his memorandum concerned possible United States Government actions

to assist or to effect the "return" to Iran of the Shah's assets in the United States, to which the Government of Iran had laid claim as converted assets. Mr. Harmon concluded that vesting the Shah's assets "would require legislation and even then would give rise to a takings claim for just compensation." Presidential authority under the International Emergency Economic Powers Act (IEEPA) to block the Shah's assets was not, however, open to serious question, he continued, and such blocking would presumably be preparatory to participation by the United States Government in Iran's suit against the Shah by filing a Suggestion of Interest: (1) either presenting the Government's position that the doctrines of sovereign immunity and act of state should not bar the court's determination of the merits; or (2) urging the court to treat the merits as foreclosed in Iran's favor since under the act of state doctrine United States courts must respect Iranian Government determinations that the Shah had converted Iranian Government assets.

In the absence of a Suggestion of Interest by the United States, "that alters the court's approach to sovereign immunity and act of state doctrine", Mr. Harmon pointed out that a court might fail to reach the merits of the Iranian Government's complaint. Since the acts complained of had allegedly taken place in Iran during the period that the Shah was the ruling monarch, they would ordinarily constitute acts of state. It was also arguable, he continued, that because the Foreign Sovereign Immunities Act did not expressly address the privileges and immunities of heads of state, a former head of state enjoyed the immunities of a "foreign state" as codified in the Act. Alternatively, he added, if the Act were construed not to apply to heads of state, the Shah might be entitled to immunity under generally recognized doctrines of customary international law.

The Department of Justice, Mr. Harmon noted, had found no authority on point in regard to whether the current Iranian Government could waive the application of the doctrines of sovereign immunity or act of state to the acts of its predecessor. Since both doctrines existed for the benefit of the state in question and not for its leaders, however, it seemed "incongruous to apply . . . [them] to defeat a claim by a state for its own assets converted by a former monarch."

Ops. Off. Legal Counsel, Vol. 4A (1985), pp. 248, 260-264.

Mr. Harmon concluded this portion of his memorandum opinion with a discussion of the possible effect of an Iranian decree nationalizing the Shah's assets and either a United States Suggestion of Interest to the court, urging that it be honored, or a "full-scale assignment of the Iranian claims to the United States pursuant to an executive agreement."

See, further, his memorandum opinion for the Legal Adviser, Dept. of State, “Effect Within the United States of Iranian Decrees Confiscating the Shah's Assets", Nov. 17, 1980, ibid., pp. 292-294.

In the (basic) Declaration of the Government of the Democratic and Popular Republic of Algeria, dated January 19, 1981, by which the United States reached agreement with Iran on the terms and conditions for Iranian release of the American hostages (see this Digest, Ch. 9, §3, ante), Paragraphs 12 through 16, under Point IV: Return of the Assets of the Family of the Former Shah, set out United States obligations in this regard.

By Executive Order 12284, dated January 19, 1981, President Carter ordered that for the purpose of protecting the rights of litigants in courts of the United States, all property and assets located in the United States within the control of the estate of Mohammad Reza Pahlavi, the former Shah of Iran, or any close relative of the former Shah served as a defendant in litigation in such courts brought by Iran, that sought the return of property allegedly belonging to Iran, was blocked as to each such estate or person until all such litigation against such estate or person was finally terminated. The Order required reports from private citizens and Federal agencies concerning such property to be made to the Secretary of the Treasury, who was to make all identifying information derived therefrom available to the Government of Iran or its agents to the fullest extent permitted by law.

The Executive Order also provided, in paragraph 1-104:

1-104. The Attorney General of the United States having advised the President of his opinion that no claim on behalf of the Government of Iran for recovery of property of the kind described [ante] should be considered legally barred either by sovereign immunity principles or by the act of state doctrine, the Attorney General is authorized and directed to prepare, and upon the request of counsel representing the Government of Iran to present to the appropriate court or courts within the United States, suggestions of interest reflecting that such is the position of the United States, and that it is also the position of the United States that Iranian decrees and judgments relating to the assets of the former Shah and the persons described in Section 1-101 should be enforced by such courts in accordance with United States law.

3 CFR, 1981 Comp. (Jan. 1, 1982), p. 115; American Foreign Policy: Current Documents, 1981 (1984), p. 754; Dept. of State Bulletin, Vol. 81, No. 2047, Feb. 1981, p. 12.

Cuba

During the Mariel "freedom flotilla" in the spring of 1980 numerous persons subject to United States jurisdiction facilitated the migration to the United States of Cuban nationals who had neither immigrant nor nonimmigrant visas and who were not returning United States residents. See this Digest, Ch. 3, §§3 and 4, ante.

On May 15, 1980, the Department of the Treasury issued an amendment to the Cuban Assets Control Regulations (31 CFR Part 515) to make clear that the general prohibition against transactions

involving Cuban nationals, set out in 31 CFR 515.201, applied to transactions connected with the transport to the United States of Cuban nationals who did not have unexpired immigrant or nonimmigrant visas, and who were not returning residents of the United States. In explaining the new, explicit prohibition, 31 CFR 515.415(a), the Department pointed out that all interested members of the public were placed on notice that such transactions were forbidden in the absence of a specific license issued by the Office of Foreign Assets Control.

Fed. Reg., Vol. 45, No. 98, May 19, 1980, p. 32671, codified to 31 CFR 515.415 (July 1, 1981).

31 CFR 515.415(b) provided that transactions incident to the travel to the United States of such Cuban nationals were not authorized under the (general) provisions of 31 CFR 515.564 ("Certain transactions incident to travel to, from, and within the United States by certain Cuban nationals"). 31 CFR 515.415(c) provided that the transactions prohibited by 31 CFR 515.415(a) were not "transactions ordinarily incident to travel to and from Cuba" (i.e., tourist or family travel) within the general license of 31 CFR 515.560 ("Certain transactions incident to travel to and within Cuba").

Blocking Iranian Government Property

Continuation of National Emergency

—J.E.D.

On November 12, 1980, President Carter signed a notice of continuance of the national emergency that he had declared on November 14, 1979 (by Executive Order 12170) to deal with the threat to the national security, foreign policy, and economy of the United States constituted by the situation in Iran. The President's notice, transmitted to the Congress and published in the Federal Register, was issued pursuant to section 202(d) of the National Emergencies Act, Public Law 94-412, September 14, 1976, 90 Stat. 1255, 50 U.S.C. 1622(d). Fed. Reg., Vol. 45, No. 222, Nov. 14, 1980, p. 75159.

Title I of the National Emergencies Act terminated all then existing powers and authorities based on any general declaration of national emergency in effect on the date of its enactment, subject to certain savings provisions, and subject, also, to certain exclusions from the Act's applicability, specified in sec. 502(a) thereof, 50 U.S.C. 1651(a).

Title II of the National Emergencies Act, covering declarations of future national emergencies, provided in section 201(b), 90 Stat. 1255, 50 U.S.C. 1621(b), that “[a]ny provisions of law conferring powers and authorities to be exercised during a national emergency shall be effective and remain in effect (1) only when the President . . . specifically declares a national emergency, and (2) only in accordance with . . . [the Act]. . . .

The International Emergency Economic Powers Act, Title II of P.L. 95-223, approved Dec. 28, 1977, 91 Stat. 1626-1629, 50 U.S.C. 1701-1706, established new Presidential authority for controls over international economic transactions during national emergencies short of war. Sec. 202(b), 50 U.S.C. 1701(b), provided that the

Presidential authorities granted in sec. 203, 50 U.S.C. 1702, might only be exercised to deal with an unusual and extraordinary threat with respect to which a national emergency had been declared for purposes of the International Emergency Economic Powers Act and might not be exercised for any other purpose. (Sec. 202(b) also provided that any exercise of such authorities to deal with any new threat must be based on a new declaration of national emergency which "must be with respect to that threat.")

In regard to the National Emergencies Act (1976), see, also, the 1976 Digest, pp. 743-745. In regard to the International Emergency Economic Powers Act (1977), see, also, the 1977 Digest, pp. 781-783. In regard to amendments to the Trading With the Enemy Act effected by Title I of P.L. 95-223, see, ibid., pp. 780-781, and 980-981. And see, in regard to the 1980 extension of "grandfathered" authorities under the Trading With the Enemy Act, this Chapter, ante, pp. 790-791.

On May 8, 1980, the Subcommittees on Europe and the Middle East and on International Economic Policy and Trade of the House Committee on Foreign Affairs had held a hearing to review the national emergency declared by President Carter with respect to Iran on Nov. 14, 1979 and certain economic measures ordered by the President in connection therewith. Richard J. Davis, Asst. Secretary of the Treasury for Enforcement and Operations, noting that the actions regarding Iran represented the first use of the International Emergency Economic Powers Act since its enactment in 1977, summarized the measures that had been taken since the President had initially blocked transfers of property or interests in property of the Government of Iran, its instrumentalities and controlled entities and of the Central Bank of Iran, on Nov. 14, 1979 (by Exec. Order 12170).

Iranian Asset Controls: Hearing before the Subcomms. on Europe and the Middle East and on International Economic Policy and Trade of the House Comm. on For. Aff., 96th Cong., 2d sess. (1980), pp. 5-12.

See, further, the 1979 Digest, pp. 1471-1492. And, see, this Chapter, $12. post. President Reagan subsequently continued the national emergency with respect to Iran. The President transmitted notices of his continuations to the Congress and to the Federal Register on Nov. 12, 1981 (Fed. Reg., Vol. 46, p. 55915), Nov. 8, 1982 (ibid., Vol. 47, p. 50841), Nov. 4, 1983 (ibid., Vol. 48, p. 51277), Nov. 7, 1984 (ibid., Vol. 49, p. 44741), Nov. 1, 1985 (ibid., Vol. 50, p. 45901), and Nov. 10, 1986 (ibid., Vol. 51, p. 41067). The notices may be found, also, in the respective annual compilations of title 3, Code of Federal Regulations, under “Other Presidential Documents".

Unblocking Iranian Government Property

The United States Government received information on September 9, 1980 (through the Government of the Federal Republic of Germany) that Iran wished to open discussions to settle the hostage crisis. The Iranian terms for release of the hostages were: "the return of the deposed Shah's wealth and the cancellation of all the United States claims against Iran, a guarantee of no United States military and political interventions in Iran, and the freeing of all our investments." (See, this Digest, Ch. 13, §1, post.)

In response to a request from Attorney General Benjamin R. Civiletti for advice on the President's power to settle the current crisis with Iran without the enactment of additional legislation, Assistant Attorney General John M. Harmon concluded, in a memorandum dated September 16, 1980, that the President had the power under