Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities

• Decision Date: 21 June 1989
• Docket Number: 89-20
• Citation: 13 Op. O.L.C. 163
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities

13 Op. O.L.C. 163

Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities

No. 89-20

United States Department of Justice

June 21, 1989

WILLIAM P. BARR Assistant Attorney General Office of Legal Counsel

Authority of the Federal Bureau of Investigation To Override International Law In Extraterritorial Law Enforcement Activities At the direction of the President or the Attorney General, the FBI may use its statutory authority to investigate and arrest individuals for violating United States law, even if the FBI's actions contravene customary international law.

The President, acting through the Attorney General, has the inherent constitutional authority to deploy the FBI to investigate and arrest individuals for violating United States law, even if those actions contravene customary international law.

Extraterritorial law enforcement activities that are authorized by domestic law are not barred even if they contravene unexecuted treaties or treaty provisions, such as Article 2(4) of the United Nations Charter.

An arrest that is inconsistent with international or foreign law does not violate the Fourth Amendment.

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

This memorandum responds to the request of the Federal Bureau of Investigation ("FBI") that we reconsider our 1980 opinion that the FBI has no authority under 28 U.S.C. § 533(1) to apprehend and abduct a fugitive residing in a foreign state when those actions would be contrary to customary international law. Extraterritorial Apprehension by the Federal Bureau of Investigation, 4B Op. O.L.C. 543 (1980) (the "1980 Opinion" or "Opinion"). After undertaking a comprehensive review of the applicable law, we conclude that the 1980 Opinion erred in ruling that the FBI does not have legal authority to carry out extraterritorial law enforcement activities that contravene customary international law.

First we conclude that, with appropriate direction, the FBI may use its broad statutory authority under 28 U.S.C. § 533(1) and 18 U.S.C. § 3052 to investigate and arrest individuals for violations of United States law even if those investigations and arrests are not consistent with international law. Second, we conclude that the President, acting through the Attorney General, has inherent constitutional authority to order the FBI to investigate and arrest individuals in a manner that departs from international law. The international law that may be abridged in this manner includes [ 164] not only customary international law but also Article 2(4) of the U.N. Charter and other unexecuted treaties or treaty provisions that have not become part of the domestic law of the United States. Finally, we reaffirm the conclusion of the 1980 Opinion that an arrest departing from international law does not violate the Fourth Amendment, and we further conclude that an arrest in violation of foreign law does not abridge the Fourth Amendment.^[1]

We caution that this memorandum addresses only whether the FBI has the legal authority to carry out law enforcement operations that contravene international law. It does not address the serious policy considerations that may weigh against carrying out such operations.

I. The 1980 Opinion

The 1980 Opinion addressed the legal implications of a proposed operation in which FBI agents would forcibly apprehend a fugitive in a foreign country that would not consent to the apprehension. That Opinion acknowledges that 28 U.S.C. § 533(1), the statute authorizing FBI investigations, contains no explicit geographical restrictions. It also refers to a previous opinion issued by this Office that concluded that the statute's general authorization to detect and prosecute crimes against the United States appears broad enough to include such law enforcement activity no matter where it is undertaken.^[2] 4B Op. O.L.C. at 551. The 1980 Opinion asserts, however, that customary and other international law limits the reach of section 533(1). Under customary international law, as viewed by the 1980 Opinion, it is considered an invasion of sovereignty for one country to carry out law enforcement activities within another country without that country's consent. Thus, the Opinion concludes that section 533(1) authorizes extraterritorial apprehension of a fugitive only where the apprehension is approved by the asylum state. Id. [ 165]

The Opinion supports this conclusion with "two distinct but related lines of analysis." Id. at 552. First, citing The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812) (Marshall, C.J.), the Opinion concludes that the authority of the United States outside its territory is limited by the sovereignty of other nations. The Opinion does not explain the juridical source of this limitation on the authority of the United States. In The Schooner Exchange, however, Chief Justice Marshall relies on customary international law for many of his conclusions, and this part of the 1980 Opinion appears to suggest that customary international law imposes absolute jurisdictional limitations on the United States' lawmaking authority.

Second, the Opinion implicitly relies on the principle of statutory construction that statutes should be construed, when possible, so as to avoid conflict with international law. The Opinion notes that a statute imposing a duty ordinarily is construed to authorize all reasonable and necessary means of executing that duty. The Opinion concludes that although the law enforcement methods at issue may be necessary to carry out the FBI agents' duties under section 533(1), those methods are "unreasonable" and hence, unauthorized, if executed in violation of international law. Thus, the Opinion concludes that without asylum state consent, "the FBI is acting outside the bounds of its statutory authority when it makes an apprehension of the type proposed here — either because § 533 could not contemplate a violation of international law or because the powers of the FBI are delimited by those of the enabling sovereign." Id. at 553.

The 1980 Opinion's impact on the ability of the United States to execute necessary law enforcement operations may be significant. The reasoning of the 1980 Opinion would seem to apply to a broad range of law enforcement activities other than forcible apprehension. United States law enforcement agents frequently are required to travel to foreign countries to conduct investigative activities or to meet foreign informants. Formal consent cannot always be obtained from the foreign government, and indeed, in many cases to seek such consent would endanger both the agents and their investigation. Although such activities are less intrusive than forcible apprehension and removal of the fugitive, under the 1980 Opinion they nonetheless may be viewed as encroachments on the asylum state's sovereignty and hence, violations of international law, if not authorized by that state. See Ian Brownlie, Principles of Public International Law 307 (3d ed. 1979) ("Brownlie") ("Police or tax investigations may not be mounted ... on the territory of another state, except under the terms of a treaty or other consent given."); 6 Marjorie M. Whiteman, Digest of International Law 179-83 (1968) (describing incidents in which American authorities sought and received permission from host country to interview persons held in foreign custody and to examine records). Thus, the 1980 Opinion has the potential to preclude the United States not only from apprehending fugitives in foreign countries, [ 166] but also from engaging in a variety of more routine law enforcement activities.

The United States is facing increasingly serious threats to its domestic security from both international terrorist groups and narcotics traffickers. While targeting the United States and United States citizens, these criminal organizations frequently operate from foreign sanctuaries. Unfortunately, some foreign governments have failed to take effective steps to protect the United States from these predations, and some foreign governments actually act in complicity with these groups. Accordingly, the extraterritorial enforcement of United States laws is becoming increasingly important to the nation's ability to protect its own vital national interests.

II. Analysis

A. The Scope of the FBI's Statutory Authority

The general investigative authority of the FBI derives from 28 U.S.C. § 533(1), which provides that "[t]he Attorney General may appoint officials to detect and prosecute crimes against the United States." This provision was first enacted in 1921 as part of the Department of Justice Appropriations Act, ch. 161, 41 Stat. 1367, 1411 (1921). As originally enacted, it also provided that the officials appointed by the Attorney General "shall be vested with the authority necessary for the execution of [their] duties." Id. This provision was carried forward in successive appropriations acts and received permanent codification in 1966. Pub. L. No. 89-554, § 4(c), 80 Stat. 378, 616 (1966). At that time, the reference to "necessary" authority was dropped as surplusage because "the appointment of the officials for the purposes indicated carries with it the authority necessary to perform their duties." H.R. Rep. No. 901, 89th Cong., 1st Sess. 190 (1965).

The FBI's arrest authority derives from 18 U.S.C. § 3052, ^[3] which provides:

The Director, Associate Director, Assistant to the Director, Assistant Directors, inspectors, and agents of the Federal Bureau of Investigation of the Department of Justice may carry firearms, serve warrants and subpoenas issued under the authority of the United States and make arrests without warrant for any offense against the United States committed in their

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