prevailing customary international law principles, and seeking to promote a new rule of international custom or practice (although a state remains liable under international law for breaches until a new rule develops). In the absence of authority under the Constitution to take actions departing from customary international law, the United States would be absolutely bound under its own fundamental law to international customs and practices, and largely powerless to play a role in shaping and changing those customs and practices itself. Under our constitutional system, where the President is primarily responsible for the conduct of our foreign affairs, it therefore makes sense that the President has the discretion to depart from customary international law norms in the exercise of his constitutional authority. As my colleague Judge Sofaer will also discuss, there are instances where extraterritorial arrests without the host sovereign's consent may be justified under international law. For example, in response to an actual or threatened terrorist attack, we would have good grounds under general principles of international law to justify extraterritorial law enforcement actions over a foreign sovereign's objections. Moreover, in appropriate circumstances we may have a sound basis under international law to take action against large-scale drug traffickers being given safe haven by a government acting in complicity with their criminal enterprise. Thus, it may well be that the President will choose to direct extraterritorial arrests only when he believes that he is justified in doing so as a matter of self-defense under international law. However, it is ultimately the President's judgment as to the need for a particular operation that is controlling for purposes of domestic law. There may also be occasions when we are permitted to perform an extraterritorial law enforcement operation with the informal cooperation of representatives or departments of a foreign government while the government publicly withholds its formal consent. We believe that in these circumstances too we should retain the option of bringing international terrorists and drug traffickers to justice. The In closing, I want to emphasize that, as Oliver Revell will indicate, the United States strongly believes in working cooperatively with other nations and fostering respect for international rules of law, and we continue to work together with foreign governments to stem the threats that international terrorism and drug trafficking pose to the world community. 1989 Opinion does not change that policy. Furthermore, in light of the serious international consequences that could follow from deploying the FBI to conduct an extraterritorial apprehension in contravention of customary international law, I can assure you that the Administration would take such action only in the most compelling circumstances after appropriate deliberation among the Departments of State and Justice and appropriate Executive Branch officials. The Administration is well aware that adherence to a system of just international norms contributes to world peace and stability. That concludes my testimony. any questions that you might have. I would be happy to address Mr. EDWARDS. We will now hear from Judge Abraham D. Sofaer, Legal Adviser, U.S. Department of State. STATEMENT OF ABRAHAM D. SOFAER, THE LEGAL ADVISER, U.S. DEPARTMENT OF STATE Mr. SOFAER. Mr. Chairman, I apologize for the delay in submission of my statement. I can only say that coordinating the statements of three individuals just added somewhat to the normal processes. But I do ask your indulgence in allowing me to summarize my statement so we don't have to spend the entire time listening to that. Mr. EDWARDS. Yes. Mr. SOFAER. Thank you, sir. It is a privilege to testify before this committee on behalf of the State Department on the important questions of international law and policy that nonconsensual arrests in a foreign country would raise. The Office of Legal Counsel, as the Office within the Department of Justice responsible for articulating the executive branch view of domestic law, recently issued an opinion concerning the FBI's domestic legal authority to conduct arrests abroad without host country consent. Mr. Barr has summarized its conclusions for you. As Mr. Barr has indicated, that opinion addressed a narrow question-the domestic legal authority to make such arrests. The opinion did not change administration or Department of Justice policy concerning such arrests. As the White House recently made clear, an interagency process exists to ensure that the President takes into account the full range of foreign policy and international law considerations before making any such decision. My role today is to address issues not discussed in the OLC opinion-the international law and foreign policy implications of a nonconsensual arrest in a foreign country. The Federal courts have treated international law, Mr. Chairman, as part of U.S. law since our early days as a Nation. The Paquete Habana is probably best known, and most frequently cited, for language in Justice Gray's opinion concerning the authority of the executive branch to violate international law by controlling act. In fact, however, the decision in that case found no controlling executive act, affirmed the relevance of international law to the conduct of executive branch officials, and disallowed an action by a lower official because it violated international law. In reaching this conclusion, Justice Gray stated, "International law is part of our law, and must be ascertained and administered by the courts of justice of appropriate jurisdiction, as often as questions of right depending upon it are duly presented for their determination." Numerous subsequent cases have adopted this conclusion. Presidents, and other executive officials, have also recognized the importance and authority of international law. Our first Attorney General, Edmund Randolph, declared in 1792: "The law of nations, although not specially adopted by the Constitution or any municipal act, is essentially a part of the law of the land." And most recently, President Bush, in his statement to the United Nations General Assembly, emphasized the organization's role in promoting the notion that law, not force, should govern relations among States. Congress, similarly, has demonstrated substantial respect for international law. While the principle that Congress can override international law for purposes of our domestic law is well established, actual examples of such actions are few, and the record is overwhelmingly to the contrary. Even when dealing with issues of national urgency, the Congress has acted with respect for our international obligations. Recent examples that I've cited in my testimony are in the Omnibus Diplomatic Security and Antiterrorism Act of 1986 where Congress declined to include a provision authorizing self-help measures. And in the Anti-Drug Abuse Act of 1986, where Congress explicitly found that the Coast Guard required foreign flag consent to board a foreign flag vessel on the high seas. Given this tradition of respect for international law, it is not surprising that our courts assume in all cases of doubt that our political branches have acted consistently with international law. While Congress and the President have the power to depart from international law, the courts have in effect insisted that they do so unambiguously and deliberately. This doctrine reflects how our Nation's respect for international law is built into our domestic legal system, and the high value accorded that law in theory and practice. Our tradition of support for international law is not simply naive American idealism. International law rules reflect the practices of nations and are based on human experience. They are, therefore, predictions of the type of conduct to which nations will be driven by the practical necessities of international relations. I have a quotation from former Secretary Kissinger to this effect. Now, territorial integrity is a cornerstone of international law; control over territory is one of the most fundamental attributes of sovereignty. This control includes a prohibition on the sending of agents for the purpose of apprehending within a foreign territory persons accused of having committed a crime. The United States has repeatedly associated itself with the view that unconsented arrests violate the principle of territorial integrity. I have cited examples, Mr. Chairman, in which other nations have seized Americans and have apologized and returned those Americans because we objected to those seizures as well as examples of situations in which U.S. persons seized foreigners in other countries in which we have apologized for those actions and returned those abducted persons. States have sought to overcome the limitations on international law enforcement activities arising from the principle of territorial integrity by cooperating in dealing with extraterritorial crime and in apprehending fugitives. An array of international agreements, institutions, and practices have developed to help nations deal with the difficulties in pursuing criminals caused by our respect for each other's borders. This has been going on for thousands of years, Mr. Chairman, and most recently, and most heroically, Colombia has extradited individuals under its extradition treaty with the United States despite enormous pressure felt by them from narcotics dealers and criminals within their jurisdiction. We also have multilateral conventions which impose an obligation on parties to prosecute or extradite for hijacking, hostagetaking, aircraft sabotage, and other forms of terrorist behavior. Other agreements deal with international drug dealers, and create an obligation on parties to prosecute or extradite those criminals as well. Despite the importance of the principle of territorial integrity there are situations in which that principle is not entitled, under international law, to absolute deference. Every state retains the right of self-defense, recognized in article 51 of the U.N. Charter. Thus, a state may take appropriate action in order to protect itself and its citizens against terrorist attacks. This includes the right to rescue American citizens and to take action in a foreign state where that state is providing direct assistance to terrorists, or is unwilling or unable to prevent terrorists from continuing attacks on U.S. citizens. Any use of force in self-defense must meet the standards of necessity and proportionality to be lawful. But if these conditions are met, the fact that the use of force breaches the territorial integrity of a state does not render it unlawful. During the Reagan administration and in other prior administrations, the United States has defended the use of force by Israel and other states, and by the United States, in defending themselves from attack and defending their citizens from attack, and in rescuing their citizens abroad. This brings me to the increasingly serious threat to the domestic security of the United States and other nations by narcotics traffickers. In recent months, Mr. Chairman, evidence has accumulated that some of these traffickers have been trained in terrorist tactics. They have enormous resources and small armies at their command. Their modus operandi is to try to intimidate or disrupt the legal process in states. They have threatened violence against U.S. citizens, officials, and property, both here and abroad. They have been provided safe haven, or given approval to transit, by governments in complicity with them. We are reaching the point, Mr. Chairman, at which the activities and threats of some drug traffickers may be so serious and so damaging as to give rise to the right to resort to self-defense. The evidence of imminent harm from traffickers' threats would have to be strong to sustain a self-defense argument. Arrests in foreign states without their consent have no legal justification under international law aside from self-defense. But where a criminal organization grows to a point where it can and does perpetrate violent attacks against the United States, it can become a proper object of measures in self-defense. These actions, actions in self-defense, Mr. Chairman, must be considered carefully by the Secretary of State, who is statutorily responsible for the management of foreign affairs and for the security of U.S. officials overseas, and by the Ambassador to the country in question, who has statutory responsibility for the direction |