that people in government, in all three branches, be able to seek legal advice. Mr. EDWARDS. I understand that, Mr. Barr, but this is public business, the subject of much discussion in the United States and you're going to have to tell the public and the Congress sometime why you changed the rules on this arresting of fugitives overseas. Mr. BARR. That's what I'm here doing. We have no objection to explaining our conclusions and our reasoning to the committee. Before turning to the legal issues, I think it is important that the committee understand exactly what the 1989 opinion did and what it did not do. Although the 1989 opinion has been characterized by the press as a document that changed Department of Justice policy, the 1989 opinion did no such thing. It is strictly a legal analysis of the FBI's authority, as a matter of domestic law, to conduct extraterritorial arrests of individuals for violations of U.S. law. The 1989 opinion expressly takes no position supporting or opposing, as a matter of policy, the use of the FBI or any other executive branch officials to make apprehensions in contravention of customary international law It explicitly cautions that apart from the question of legality under domestic law such operations raise serious policy considerations that obviously must be carefully weighed. Moreover, the 1989 opinion does not address the legal implications of deploying the FBI in violation of provisions of self-executing treaties or treaties that have been implemented by legislation. Now let me turn to the reasons we think the 1980 opinion was flawed. The 1980 opinion expressed the view that the United States, as a sovereign, has no authority under its own laws to conduct law enforcement operations in another country without that country's consent. It based this view on the conclusion that the de jure authority of the United States is necessarily limited by the sovereignty of the nations. We do not agree with this proposition, and believe that the 1980 opinion's reliance on the Schooner Exchange v. M'Faddon was misplaced. Under our constitutional system, the executive and legislative branches, acting within the scope of their respective authority, may take or direct actions which depart from customary international law. At least as respects our domestic law, such action constitute "controlling executive or legislative acts" that supplant legal norms otherwise furnished by customary international law. In the early 19th century, the Supreme Court, speaking through Chief Justice Marshall, recognized that while customary international law may provide rules of decision in the absence of a controlling executive or legislative act to the contrary, it does not absolutely restrict the Nation's sovereign capacity to act in the international arena. In Schooner Exchange, Chief Justice Marshall opined that under principles of customary international law a French warship was impliedly immune from judicial process within the territory of the United States, but expressly acknowledged that "the sovereign, the United States, is capable of destroying this implication, either by employing force, or by subjecting such vessels to the jurisdiction of its ordinary tribunals." In the Brown case, Marshall observed that the rule of customary international law: "is a guide which the sovereign follows or abandons at his will. The rule, like other precepts of morality, of humanity, and even of wisdom, is addressed to the judgment of the sovereign; and although it cannot be disregarded by him without obloquy, yet it may be disregarded." In acknowledging the United States' sovereign authority in this area, Chief Justice Marshall did not attempt to draw any distinction between actions that infringe on the territorial sovereignty of foreign nations and other types of departures from customary international law. Since that time, the courts have repeatedly recognized that the executive and legislative branches may, in exercising their respective authority, depart from customary international law norms. In particular, it has been stated that in the exercise of his constitutional authority, the President may depart from customary international law by a "controlling executive act." The 1980 opinion utterly failed to consider the Supreme Court's recognition of the President's authority in this area. The 1980 opinion also concluded, as its second ground, that the FBI could not make apprehensions in contravention of customary international law under one of its general enabling statutes, reasoning that general enabling statutes must be construed restrictively to prohibit absolutely any departure from the standards of customary international law. Again, we reject this analysis. The FBI's general enabling statutes, 28 U.S.C. 533(1) and 18 U.S.C., section 3052, give the FBI authority to "detect and prosecute crimes" and "make arrests" without any express geographical limitation. The Office of Legal Counsel has previously opined that there does not appear to be any room for serious dispute, that these statutes confer extraterritorial law enforcement authority on the FBI. For example, when a foreign sovereign has consented to the FBI's conduct of an arrest within its territory, we see no basis to conclude that the FBI is powerless to make the arrest. Thus, the narrow question presented is whether the FBI's enabling statutes absolutely bar the FBI from undertaking extraterritorial apprehensions whenever such actions depart from customary international law. The gravamen of the 1980 opinion is that customary international law imposes absolute restrictions on the authority of the United States to take extraterritorial action, and that these restrictions, when read into the FBI's general enabling statutes, absolutely bar the FBI from conducting extraterritorial arrests that depart from customary international law norms. We think that that position is untenable. Both of the enabling statutes are statutes that carry into execution the President's core executive law enforcement power which, where extraterritorial action is concerned, intersects with this constitutional responsibilities in the field of foreign relations. In our view, because the President has recognized authority to override customary international law, restrictions imposed by customary international law should not be read into such general ena 4 bling statutes in a manner that precludes the exercise of his authority. As Justice Jackson said in his famous concurring opinion in the steel seizure case, "I should indulge the widest latitude of interpretation to sustain the President's exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. To the extent that principles of customary international law are read into these broad enabling statutes, we reject the notion that the statute must be read as transforming customary international law principles into absolute restrictions on executive action. Accordingly, the FBI's general enabling statutes should be construed as permitting the agency to take extraterritorial action either when such actions are consistent with customary international law-as with the consent of a foreign sovereign-or when the agency has been directed to do so by a "controlling executive act" that supplants customary international law. Quite apart from the question whether the FBI has statutory authority to override customary international law in accordance with an appropriate directive from the executive or legislative branches, the 1980 opinion failed to consider the President's inherent constitutional power to authorize law enforcement activities. Even in the absence of 28 U.S.C., section 533(1) and 18 U.S.C., section 3052, the President, in accordance with his general executive authority under article II and his constitutional responsibility to "take care that the laws be faithfully executed," nevertheless has the power to authorize agents of the executive branch to conduct extraterritorial arrests. The Supreme Court's decision in the In re Neagle case in 1890 supports this conclusion. A recitation of that case is set forth in the testimony and I'd like to skip that, if I may, and continue. Mr. EDWARDS. Without objection, so ordered. Mr. BARR. Our conclusion also finds support in the recent decision of the U.S. Court of Appeals for the Eleventh Circuit in Garcia-Mir v. Meese, a 1986 case, and again, the facts of that case and the court's decision is set forth in the testimony. Moreover, the conclusion that the President has the authority to depart from customary international law is consistent with the very nature of customary international law. Customary international law is not a rigid canon of rules, but an evolving set of principles founded on a common practice and understanding of many nations. It is understood internationally that this evolution can occur by a state departing from 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 laws to international customs and practices, and largely powerless to play a role in shaping and changing those customs and practices. 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 selfdefense 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. In closing, I want to emphasize that 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. The 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. I would be happy to address any questions that you might have. Mr. EDWARDS. Thank you, Mr. Barr. [The prepared statement of Mr. Barr follows:] PREPARED STATEMENT OF WILLIAM P. Barr, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE Mr. Chairman and Members of the Subcommittee: I am pleased to be with you today to discuss the extent to which the United States has authority under its own domestic laws to carry out extraterritorial arrests which may depart from principles embodied in international law. The United States is facing increasingly serious threats to its domestic security from both international terrorist groups and narcotics traffickers. Many of these criminal organizations target the United States and United States citizens while operating from foreign sanctuaries. While many nations have cooperated in our efforts to combat terrorism and narcotics trafficking by entering into extradition agreements and providing us with other forms of assistance, some foreign governments have unfortunately failed to take steps to protect the United States from these predations, and others actually act in complicity with these groups. Congress has enacted laws to criminalize certain terrorist conduct wherever it occurs, such as 18 U.S.C. § 1203 (implementing International Convention Against the Taking of Hostages) and 18 U.S.C. § 2331 (terrorist acts abroad against United States nationals). Viewed against this backdrop, the extraterritorial enforcement of United States laws is of growing importance to our ability to protect vital national interests. particularly in the face of the It was in this context - growing menace of anti-U.S. terrorism 81 that the Office of Legal |