THE USE OF CLASSICAL ESPIONAGE, ELECTRONIC SURVEILLANCE AND COVERT ACTION UNDER INTERNATIONAL LAW AND PURSUANT TO THE COMMANDER-IN-CHIEF AND FOREIGN POWERS OF THE PRESIDENT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP80M01133A000900140015-9
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 25
• Document Creation Date: December 16, 2016
• Document Release Date: September 30, 2004
• Sequence Number: 15
• Publication Date: January 1, 1975
• Content Type: REPORT

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The Use of Classical Espionage, Electronic Surveillance
and Covert Action Under International Law and Pursuant
to the Commander-in-Chief and Foreign Affairs Powers
of the President
Office of General Counsel
Central Intelligence Agency
February 1975
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The Use of Classical Espionage, Electronic Surveillance and
Covert Action Under International Law and Pursuant to the
Commander-in-Chief and Foreign Affairs Powers of the
President
Page
The Rationale of Self-Preservation
Under International Law
Classical Espionage, Electronic
Surveillance and Covert Action as
Included in the Right of Self-Preservation 9
Do Classical Espionage, Electronic
Surveillance and Covert Action Constitute
"Illegal Intervention" in the Internal
Affairs of Other States?
The 1961 Vienna Conventions on Diplomatic
and Consular Relations vis-a-vis the
Commander-in-Chief and Foreign Affairs
Powers of the President and the International
Legal Right of Self-Preservation
Separate Issues Concerning the Interpretation
of the Provisions of the 1961 Vienna Conventions:
Do They Really Prohibit Classical Espionage,
Electronic Surveillance and Covert Action?
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The Use of Classical Espionage, Electronic
Surveillance and Covert Action Under
International Law and Pursuant to the
Commander-in-Chief and Foreign Affairs
Powers of the President and International Law
1. This paper addresses itself to the issue of the justification of
classical espionage, electronic surveillance and covert activity under
international law. It specifically addresses itself to the question of
whether general principles of international law exist which justify certain
activities of the United States and the Central Intelligence Agency in the
light of provisions of treaties to which the United States is a party and
which at first glance would seem to prohibit such activities. The paper
does not purport to deal in detail with the justification of these activities
in light of the Constitution (aside from those provisions related to the con-
duct of foreign affairs) and statutes of the United States as opposed to
treaties. (This latter issue of statutory and constitutional authority for
Agency activities has been previously dealt with in detail by memorandum
STATINTL of dated 9 September 1974, Office of General Counsel,
to the Director of Central Intelligence, subject: "Department of Justice
Memo to Attorney General Regarding Authorization for Trespassory
Electronic Surveillance. ") The paper also does not purport to deal in detail
with the general area of "paramilitary" activities.
The Rationale of Self-Preservation Under International Law
2. The right of self-preservation of the state is one of the mopt
absolute in international law. in a world consisting of nation-states pur-
suing various methods and degrees of competition with one another, the
exercise of that right can itself be equated with the reason of existence
of the state. All other rules of international law, all other rules con-
tained in treaties to which the United States is a party, inherently are
subordinate to that right; those rules must be read and interpreted, from
the outset, as inherently modified by the right of self-preservation.
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3. The argument made in the preceding paragraph is well-supported
by eminent jurists of international law. As early as 1831, the French edition
of Kluber discussed the right of self-preservation as one of the "Droits
absolus des Etats. " Wheaton, Elements of International Law (1866), part ii,
ch. i. , para. 61 (pubs. as no. 19 of The Classics of International Law, 1936)
discusses the right at some length and equates its exercise with raison d'etat.
On this issue, see also Phillimore, Commentaries, i (3d ed. 1879), 312-21;
Heffter, Le Droit international de l'Europe (4th Fr. ed. by Geffcken, 1883),
para. 30; Rivier, Principes du droit des Bens (1896), i, para. 20; and Woolsey,
Introduction to International Law (5th ed.), p. 184. Brownlie, International
Law and the Use of Force States (1963) p. 42 says:
The right of self-preservation is ... a doctrine
of necessity. There would seem analytically to be no
distinction between the two and the discussions in works
of international law certainly treat them as identical ...
When 'necessity' is defined it appears to be applicable
when action is necessary for the security or safety of
the state. Rivier, loc. cit.; G.F. de Martens, Precis
du droit des gens (1864), i. paras. 74, 78. See also
Weiden, 24 Grot. Soc. (1938), p. 105, and Rodick, The
Doctrine of Necessity in International Law ... [T]he
state taking such action/is] regarded as the judge of
the situation.
Fenwick, International Law (4th ed. 1965), p. 271 points out:
The primary right of a state is clearly the integrity
of its personality as a state, since the existence of the state
is the necessary condition of any other rights that it may
claim. At times fthis right of national existence] is described
as 'national security,' or as 'the right of self-preservation,'
or the 'right of self-defense,' 'the fundamental law,' 'the `-
first law of nature' to which all other laws are subordinate.
In a letter of Secretary Seward to Mr. Adams in 1861, it is
said: 'They /The positions assumed by the United States]
are simply the suggestions of the instinct of self-defense,
the primary law of human actions, not more the law of
individual than of national life.' Series B. , Sec. I, Tome I,
p. 317. /mphasis added.]
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To preserve its independence, and give security
against foreign aggression, and encroachment, is the
highest duty of every nation, and to attain these ends
nearly all other considerations are to be subordinate.
Chinese Exclusion Case, 130 U.S. 581, 606, 9 S. Ct.
623, 630 (1889). /Emphasis added.
4. The doctrine of self-preservation has been used consistently through
the ages, up to and including the 1970's, to justify some rather broad activities.
The doctrine includes such customary examples as political or military acts in
order to maintain a particular international or regional balance of power among
States (e.g., the rearrangement of the map of Europe in 1815 by the Congress of
Vienna; British and French participation in the Crimean War; the deliberate
maintenance of governments by the 1878 Congress of Berlin; provisions
relating to the reorganization of the defeated States by the Allies after World
War II and Allied military and political activities in South Vietnam in 1965-73
in response to North Vietnamese attempts at extension of their dominion there!/);
political or military acts in order to respond to any act "dangerous to ...
/the/ peace and safety" of the acting state (e.g. , actions pursuant to the
Monroe Doctrine against France in Mexico in 1863, against Spain in Santo
Domingo in 1861 and in Peru in 1864, against Great Britain in Venezuela in
1895, against Great Britain, Germany and Italy in Venezuela in 1902, against
Mexico's offer of a lease of Magdalena Bay to Japan in 1912; the employment
of classical espionage, overflights and a resulting blockade against Cuba in
1962 in order to secure the removal of Soviet offensive missiles (on the latter
action see, e.g., Address by President Kennedy, October 22, 1962 and U. S.
Proclamation, October 23, 1962) ); actions in order to protect spheres of
influence (e.g. , Miller, The Peace Pact of Paris, p. 198, relates that the
1/ A corollary to the right of self-preservation is the right to` prevent
unlawful intervention by another state against a third state, even if the defense
(as opposed to self-preservation) of the preventing state is not endangered.
See Hyde, International Law (2d Ed. 1951) p. 248; Secy. of State Seward to the
French Minister, Dec. 6, 1865, H. Ex. Doc. 73, 39 Cong. , 1 Sess. , II, 347,
Moore, Dig., VI, 501; Oppenheim, Lauterpacht's 5 ed.., I, Sec. 135 (4), p. 252.
The successful effort of the U. S. to check the French intervention in Mexico,
1862-67, was an application of this principle. Likewise, U.S. efforts in Laos
and South Vietnam in the 1960's can also be interpreted as acts taken pursuant
to this principle.
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British Foreign Office, by note in 1920, considered any interference with
the right of free passage from Britain to India via the Suez Canal to be
the equivalent of an attack on Great Britain itself); actions to remove
an international nuisance (e.g., the United States' declaration of
war on Spain in 1898 pursuant to President McKinley's Address to
Congress of April 11, 1898, delineating the "chronic rebellion, military
repression and lack of sanitary measures" in Cuba and actions to protect the
lives and property of nationals (e.g., American actions in the Boxer Rebellion
in China in 1900; U.S. military action in Nicaragua in 1926 and 1927; American
clashes with Chinese troops in China, 1926-27; British naval action in China,
1926-27; the Franco-British military action in Egypt, 1956; Belgian military
operations in the Congo, 1960 and U.S. and O .A . S . police action in the
Dominican Republic in 1965).
5. The doctrine of self-preservation includes the right of anticipatory
self-defense, i . e . , it permits the state concerned to reasonably anti cip ate a
danger and act accordingly. Bowett, Self-Defense in International Law,
pp. 31, 58, 256, 269; Waldock, 81 Hague Recueil (1952, II), p. 463; Jessup,
A Modern Law of Nations (1956), p. 166; Stone, Legal Controls of International
Conflict, p. 244; Green, 6 Archiv (1957), p. 433; Redslob, Traite, pp. 243,
244; de Brouckere, 50 Hague Recueil (1934, IV), p. 33. There can be little
doubt that the right of self-preservation and the doctrine of necessity com-
prehend anticipatory action. Brownlie, op. cit., p. 257. Westlake, in
International Law (1904), i. 299, summed up the aspect of anticipatory self-
defense as a corollary to the right of self-preservation when he stated:
A State may defend itself, by preventive means
if in its conscientious judgment necessary, against attack
by another State, threat of attack, or preparations or
other conduct from which an intention to attack may
reasonably be apprehended. LEmphasis added.]
In support of Westlake's proposition, see also Stowell, Intervention, pp. 355
et. seq.; Baty, The Canons of International Law (1930), p. 96; Lawrence,
Principles of International Law (1930), p. 125; Fiore, Nouveau droit
international public, i (Paris, 1885), paras. 454 et. seq.; Weiden, 24 Grot.
Soc. (1930), pp. 122-5.
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6. To believe that there has been universal acceptance by eminent
international jurists of the doctrine of self-preservation as an absolute would
be fallacious. Indeed, as Secretary of State Kissinger has pointed out, the
arguments both for and against this doctrine present the framework for a
great philosophical debate. Basically, however, the arguments against the
doctrine are based on two major lines of reasoning. The thrust of the first
line of reasoning is that the world is no longer a place of truly sovereign
and independent nation-states but rather a place in which some greater supra-
national order, as exemplified by international organizations and agreements,
overrides, modifies and restricts the pre-existing parameters of national
sovereignty, including the "absoluteness" of the right of self-preservation.
According to this line of reasoning, the right of self-preservation would be
subordinate to the language of international agreements expansively inter-
preted rather than vice-versa; likewise that right would be subordinate to
expressions of world "public opinion" as expressed by organs such as the
General Assembly of the United Nations. This line of reasoning is most amply
described, perhaps, by one of its proponents, Professor Friedmann, in The
Changing Structure of International Law (1964), p. 38:
There are ... beginnings of a 'supranational' society,
i . e . , a society in which the activities and functions of states
or groups are emerged in permanent international institutions.
They derive their status from international treaties, and they
are carried by the agreement and contributions of the Member
States. But these institutions express purposes and functions
of their own, and as they become more firmly established,
they become increasingly emancipated from the states or
groups establishing them. They develop a moral as well as
a legal personality of their own. [Emphasis added.]
It is submitted, quite simply, that this line of reasoning simplistically
ignores the reality of modern international relations. Even considering
the reality of Communist-Western State detente, it is apparent that-most, and
probably all, states are motivated primarily by their own national interests
in what they do, and act accordingly, rather than act primarily because of
commitment to some supranational order which seeks to restrict and limit
those interests. It is true that many of the less powerful actors on the inter-
national scene, acting out of their own national interest of self-preservation,
have combined in blocs, e.g., in the General Assembly, and have expressed
their opinions in votes the purport of which has been to limit an absolute
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right of self-preservation of the great powers. Such actions, because of their
underlying motivation of self-preservation, merely prove the rule of self-
preservation rather than deny that right to the great powers because of the
substance of the opinions expressed. International Law has never been
established by majority vote of the General Assembly. Statute of the Inter-
national Court of Justice (1945) Art. 38; Bishop, International Law (3d Ed.)
pp. 25-61. The second line of reasoning seeks to define most acts of self-
preservation carried on outside the boundaries of the acting state as illegal
intervention in the internal affairs of another state. Whether classical
espionage, electronic surveillance and covert action can or should be so
defined is discussed in detail below; here, however, certain remarks about
the general area of the legality of "intervention" in international law should
be made.
7. Most commentators who argue against acts taken pursuant to the
right of self-preservation as illegal "interventions" take as a starting point
Article 51 of the Charter of the United Nations, which provides:
Nothing in the present Charter shall impair the
inherent right of individual or collective self-defence [sic]
if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken measures
necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right
of self- defence['sic,J shall be immediately reported to the
Security Council under the present Charter to take at
any time such action as it deems necessary in order to
maintain or restore international peace and security.
Certain commentators urge that Article 51 be read restrictively, i.e. , it
authorizes self-defense only when (1) an armed attack occurs against a
Member and (2) the intervening State reports the intervention to- the Security
Council and only until the Security Council takes actions it considefrs appro-
priate relating to the entire issue. Brownlie, International Law and the Use
of Force b States (1963). However, there is substantial support for the
proposition that Article 51 is not exclusive and that all States still retain
the rather broad rights of self-preservation or -defense as delineated in
customary precedent. Bowett, Self-Defense in International Law, pp. 184-5,
says:
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It is ... fallacious to assume that members have
only those rights which general international law accords
them except and insofar as they have surrendered them
under the Charter.
For support of the same proposition, see also Goodhart, 79 Hague Recueil
(1951, II) , P. 192; Schwarzenberger, 87 Hague Recueil (1955, 1), pp. 327
seq. and McDougal and Feliciano, Law and Minimum World Public Order,
pp. 232-41. Second, commentators who argue against all forms of interven-
tion as illegal often put forward, as, e . g . , do the materials of Quincy Wright
introduced into the Congressional Record of 20 October 1974 by Senator
Hatfield, Article 2, paragraph 4 of the U.N. Charter; General Assembly
Resolution 2131 (XX) (adopted December 21, 1965 by a vote of 109 to 0 with
the U.K. abstaining); the 1970 General Assembly Declaration on Principles
of International Law concerning Friendly Relations and Cooperation among
States and Articles 18 and 19 of the OAS Charter. Article 2 of the U.N.
Charter provides:
`That all U.N. members will] refrain in their
international relations from the threat or use of force
against the territorial integrity or political independence
of any state, or in any other manner inconsistent with
the purposes of the United Nations.
General Assembly Resolution 2131 provides:
No State has the right to intervene, directly or
indirectly, for any reason whatever, in the internal or
external affairs of any other State ... [Afrmed interven.-
tion and all other forms of interference or attempted
threats against the personality of the State or against
its political, economic and cultural elements are condemned.
The 1970 General Assembly Declaration on Principles of International Law
provides that all forms of intervention described in Resolution 2131 "are in
violation of international law." Articles 18 and 19 of the OAS Charter provide:
No State or group of States has the right to
intervene, directly or indirectly, for any reason what-
ever, in the internal or external affairs of any other _
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State. The foregoing principle prohibits not only armed
force but also any other form of interference or attempted
threat against the personality of the State or against its
political, economic, and cultural elements.
No State may use or encourage the use of
coercive measures of an economic or political character
in order to force the sovereign will of another State
and obtain from it advantages of any kind.
8. The cited materials in paragraph 7 do not negate the absoluteness
of the right of self-preservation, according to the sources cited in paragraphs
3 and 5. For example, Dr. Bowett holds the view that Article 2 of the U. N.
Charter left the right of self-defense unimpaired and that the right implicitly
excepted was not confined to reaction to "armed attack" within Article 51 of
the Charter but permitted the protection of certain substantive rights:
Action undertaken for the purpose of, and limited
to, the defence [sicJ of a State's political independence,
territorial integrity, the lives and property of its nationals
(and even to protect its economic independence) cannot by
definition involve a threat or use of force 'against the
territorial integrity or political independence' of any
other state. Op. cit. , pp. 185-6.
Bowett also espouses the view that self-defense, including the use of force,
is justified in the case of threats to the political independence of a state
constituted by subversion or economic measures. Op. cit., pp. 54, 113.
Moreover, even if Bowett's view on self-defense not being intervention by
definition is incorrect, the materials cited as opposed to intervention are
themselves negated by the contrary custom since 1945 cited in paragraph 4.
Interventions continue to go on in many different forms, and one of'the first
rules of international law is that when isolated examples become custom, that
custom becomes part of the law. See Statute of the International Court of
Justice (1945) Art. 38. Interventions have been customary since before the
time of Christ. The Articles, Resolution and Declaration cited above must
be read as modified by this on-going custom, as well as modified by the
overriding right of self-preservation, and not vice-versa. Finally, the over-
whelming motivation for proscriptions against intervention in the law has
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been that interventions breed international political chaos and an unstable
world order. This fear is a logical one in the abstract. When applied to
particular interventions of the United States Government, and certain other
great powers as well, the fear seems to be somewhat unjustified since many
of these interventions have been designed in order to translate a somewhat
unstable condition into a more stable one, rather than having the opposite effect.
Classical Espionage, Electronic Surveillance and Covert Action
as Included in the Right of Self-Preservation
9. Classical espionage and electronic surveillance are inherent parts
of the right of self-preservation because of the "necessity" theory pointed
out by Brownlie in paragraph ,3 above. Within the context of the rather
sophisticated and subtle threats directed at U.S. national security in the
1970's, executed in turn by the extremely sophisticated technical means
possessed by some of the U.S. potential adversaries, it is necessary that
the U.S. be able to penetrate the state secrets of other powers in order to
ascertain the existence and. scope of any threat to the national interest. The
right of self-preservation is a worthless one if the defending state is not
entitled to know, in advance what it might have to react against, and what
means might therefore be appropriate to meet a given threat. This tacitly
understood point has been most recently recognized in the opinion of the
Third Circuit Court in U.S. v. Butenko, 494 F. 2d 593 (3d Cir. 1974), where
it was pointed out:
To fulfill [his Commander-in-Chief and foreign affairs]
responsibilities, the President must exercise an informed
judgment. Decisions affecting the United States' rela-
tionship with other sovereign states are more likely to
advance our national interests if the President is apprised
of the intentions, capabilities and possible responses of
other countries . Certainly one means of acquiring informa-
tion of this sort is through electronic surveillance. And
electronic surveillance may well be a competent tool for
impeding the flow of sensitive information from the United
States to other nations.
Thus, it is fair to conclude that classical espionage activities and electronic
surveillance authorized by the President in the foreign intelligence field, in
cases where one is dealing with the unknown, are ipso facto "reasonable"
within the context of the Fourth Amendment. No one argues, of course, that
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the President is authorized to direct classical espionage or warrantless and
trespassory electronic surveillance at any and every American citizen,
because, in the absence of any information one way or the other, that
citizen just might, e.g., be involved in an imminent and significant coup
attempt directed against the United States Government on behalf of a foreign
power. If, however, there is some reasonable connection between an
American or foreign national and a foreign state, and there is some interest
of the U.S. to be protected from that state, then the issue is moved into the
"foreign intelligence" area, and even in the absence of further information
about a possible threat to the national interest, the President's "foreign
affairs" powers come into play. See below, paras. 16-18. In order to
determine the mere existence of a danger, as well as its scope if it does exist,
he must be able to move immediately and in the utmost secrecy, using, of
course, his good faith and judgment, to determine the existence and scope of
any potential danger. Constitutionally, under U.S. v. Curtiss-Wright, 299
U.S. 304 (1936) (see below) and Butenko, his discretionand judgment, if
in good faith, must be honored by the courts in the realm of foreign intelli-
gence, since his paramount criterion and standard for action is the near-
absolute rule of self-preservation under international law.
10. Covert action is an inherent means of self-preservation because of
what has been called the "proportionality" rule of self-defense. Director
of Central Intelligence William Colby, in opining several times in public
that it would be a mistake to deprive our nation of the possibility of some
moderate covert action response to a foreign problem and leave us with
nothing between a diplomatic protest and sending the Marines, was actually
making a point long held to be part of international law by reason of the
proportionality rule. That rule can be stated thus: acts employed in self-
preservation must be proportionate to the threat. Brownlie, op . cit., p. 261.
The formula used by Secretary of State Webster in relation to the Carolina
incident of 1841 has attracted international legal jurists by virtue of his
insistence that self-preservation must involve "nothing unreasonable or
excessive; since the act, justified by the necessity of self-defense, must be
limited by that necessity, and kept clearly within it." In Reports rid
Resolutions on the subject of Article 16 of the Covenant, L. of N. Doc. A.
14.1927. V.V. Legal 1927.V.14, pp. 60, 69, de Brouckere points out:
Legitimate defence [sic] implies the adoption of
measures justified by the seriousness of the danger.
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The proportionality rule is not a glib euphemism for "two wrongs make a
right." On the contrary it is a well-respected and recognized rule of inter-
national law which permits a state to respond to the activities of a state
directed at the national interests of the first state in an appropriate and
reasonable manner adapted to the efforts of the state whose actions first
initiated the problem. Thus, as Director Colby has pointed out several
times, the United States Government in the 1950's and 1960's responded to the
Communist-subsidized effort to develop a panoply of international front
organizations by assisting American sponsored private groups to articulate
the views of American students abroad and in 1962 responded to the presence
of 5, 000 North Vietnamese troops in Laos in violation of the Geneva Accords
with covert support to indigenous groups wishing to maintain the integrity
of the personality of the State of Laos.
Do Classical Espionage, Electronic Surveillance and Covert Action
Constitute "Illegal Intervention" in the Internal Affairs of Other
States?
11. Certain commentators have submitted that classical espionage,
electronic surveillance and covert action are violations of international law
because they involve illegal intervention in the internal affairs of other states.
Two issues are raised by this argument. First, are acts based upon self-
preservation an illegal intervention in the internal affairs of another state?
This legal issue has already been dealt with in paragraphs 6-8 above. Even
assuming, however, that acts based upon self-preservation may be illegal
interventions, a second issue must still be resolved before one decides
that in the absence of war spies operate only in violation of international law;
that second issue is whether classical espionage, electronic surveillance and
covert activities are properly classifiable, aside from any issues of self-
preservation, as that kind of "intervention" declared unjustifiable in certain
sources of international law. This second issue is more an issue of classifi-
cation, rather than legality versus illegality. A statement arguing that these
activities are so classifiable, however, is Quincy Wright's assertion, made
in 1963, and introduced into the Congressional Record of 2 October, 1974 by
Senator Hatfield, that:
?'See footnote 1, page 3.
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... /i/n time of peace ... espionage and, in fact,
any penetration of the territory of a state by agents of
another state in violation of the local law, is also a viola-
tion of the rule of international law imposing a duty upon
states to respect the territorial integrity and political
independence of other states ....
12. A number of remarks and objections can immediately be raised to
Professor Wright's statement. First, as the materials introduced by Senator
Hatfield point out in very brief outline (Goodrich, Hambro and Simons,
Charter of the United Nations, Commentary and Documents (3d Ed. 1969))
classical espionage, electronic surveillance and covert actions do not fall
neatly into areas normally and easily recognized as "interventions" under
international law. Most of these areas deal with the use, or threat of use,
of force. See, e.g., Article 2 of the U.N. Charter and Fenwick, International
Law (4th Ed.) p. 291. (One should recall that even when force, or the threat
of force, is used, as e.g., in some covert action, that that action can often
be justified under the rules and custom relating to self-preservation, above
paras. 2-5. ) Second, interventions declared to be illegal by the commentators
usually include, as a necessary part of such an intervention, action directed
against the "personality of the State. " The personality of a State can, of
course, never be equated with a particular government under international
law. See, e.g. , Hackworth, 1 International Law 127 (1940). A government may
act in either a lawful or unlawful manner with regard to the laws and con-
stitution of its own state; likewise, it may be representative or unrepresentative
of its state. The objectives of classical espionage and electronic surveillance
deal merely with the gaining of information, not with the subversion of the
personality of a State. Whether particular covert activities interfere with
the personality of particular states can only be analyzed on a case by case
basis; suffice it to say that many activities carried out in the past by the
United States Government as, e.g. , political action in Laos in the 1960's, were
designed to strengthen and support the personalities of particular estates
against foreign or foreign-oriented protagonists seeking to alter the consti-
tutional order within those states .
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The 1961 Vienna Conventions on Diplomatic and Consular Relations
vis-a-vis the Commander-in-Chief and Foreign Affairs Powers of
the President and the International Legal Right of Self-Preservation
13. The 1961 Vienna Convention on Diplomatic Relations and the 1961
Vienna Convention on Consular Relations (TIAS 7502) have been acceded to
by approximately 108 states since becoming available for ratification in 1964.
A list of the states which have so acceded is attached hereto as Exhibit A.
14. Of interest for the subject of this paper are Articles 22, 30 and 41
of the Convention on Diplomatic Relations. Parallel provisions appear in the
Vienna Convention on Consular Relations. Article 22 provides:
1. The premises of the mission shall be inviolable.
The agents of the receiving State may not enter them, except
with the consent of the head of the mission.
2. The receiving State is under a special duty to take
all appropriate steps to protect the premises of the mission
against any intrusion or damage and to prevent any disturbance
of the peace of the mission or impairment of its dignity.
3. The premises of the mission, their furnishings
and other property thereon and the means of transport of the
mission shall be immune from search, requisition, attach-
ment or execution.
Article 30 provides:
1. The private residence of a diplomatic agent shall
enjoy the same inviolability and protection as the premises
of the mission.
f
2, His papers, correspondence and, except as provided
in paragraph 3 of Article 31, his property, shall likewise enjoy
inviolability.
And Article 41 provides:
1, Without prejudice to their privileges and immunities,
it is the duty of all persons enjoying such privileges and
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immunities to respect the laws and regulations of the
receiving State. They also have a duty not to interfere in
the internal affairs of that State,
2. All official business with the receiving State
entrusted to the mission by the sending State shall be
conducted with or through the Ministry for Foreign
Affairs of the receiving State or such other ministry as
may be agreed,
3. The premises of the mission must not be used
in any manner incompatible with the functions of the
mission as laid down in the present Convention or by
other rules of general international law or by any special
agreements in force between the sending and the receiving
State,
15. Section 2 of Article II of the Constitution deals with both the
foreign affairs and Commander-in-Chief powers of the President. However,
with regard to foreign affairs, the President is not limited to the powers
specifically enumerated in that document; moreover, the source of his
foreign affairs powers is not solely the Constitution but also the fact that he
is the representative of the sovereignty of the Union in international relations.
As Justice Sutherland says in U.S. v. Curtiss-Wright Export Corp., 299 U.S.
304 (1936):
The ... statement that the Federal government can exercise
no powers except those specifically enumerated in the
Constitution and such implied powers as are necessary
and proper to carry into effect the enumerated powers, is l
categorically true only in respect of our internal affairs ...
When ... the external sovereignty of Great Britain in
respect of the colonies ceased, it immediately passed to
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the Union . , , . The Union existed before the Constitution
.... Prior to that event, it is clear that the Union, ..was
the sole possessor of external sovereignty, and in the
Union it remained without change save insofar as the
Consititution in express terms qualified its exercise....
It results that the investment of the Federal sovernment
with the powers of external sovereignty did not depend
upon the affirmative grants of the Constitution. The
powers to declare and wage war, to conclude peace, to
make treaties, to maintain diplomatic relations with
other sovereignties, if they had never been mentioned
in the Constitution, would have vested in the Federal
government as necessary concomitants of nationality....
In this vast external realm, . the President alone has the
power to speak or listen as a representative of the nation
. , .. The President is the sole or an of the nation in
its external relations, and its sole representative with
foreign nations, .. , He manages our concerns with
foreign nations and must necessarily be most competent
to determine when, how, and upon what subjects negotiation
may be waged with the greatest prospect of success.
Emphasis added ;,%
16. The Court was saying a number of things in Curtiss -1%'riZht. Of
most importance, perhaps, were two: first, that the President has assumed
the sole burden of effectively managing the nation's foreign relations in
accordance with all the powers normally due a soveKei_gn within the inter-
national legal order (and limited solely by explicit and unquestioned
proscriptions within the Constitution itself) and second, that the exercise
of these powers involved both complexities of analysis and inherent danger
to the national interest if effective and necessary action was not taken within
the required time, The second point has become known as part of/the
"political question" doctrine and has led American courts to defer`'to the
action of the Executive in matters involving such issues of the governance
of American international relations. Mitchell v. Laird, 476 F . 2d 533
(D.C. Cir. 1973); Holtzman v. Schlesinger, 484 F, 2d 1307 (2d Cir. , 1973).
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17. Assuming that the first point is part of the constitutional
interpretation of Presidential powers, then the President may exercise
those near absolute rights of self-preservation and anticipatory self-
preservation recognized in internal law, and enumerated in paragraphs
2-5. Thus, if the President reasonably determines that the self-preservation
of the United States so requires, he may legally, within the realm of foreign
relations, direct a policy to be implemented which at first glance might seem
not to be in accord with a given treaty provision. The rights of self-preservation
and anticipatory self-defense must and do dominate over any treaty provision
in terms of deciding what rule of international law is controlling. Normally
this action of the President would be within the scope of his le al rerogative
and not subject to judicial review pursuant to the cases cited in paragraph 17.
Indeed, because of the Commander-in-Chief and foreign affairs powers,
even Congress may not constitutionally have the right to interfere by
statute (with the exception, of course, of the appropriation, ambassadorial
approval, and advise and consent functions constitutionally accorded it)
with those powers. In discussing whether Congress might have limited
the President's foreign affairs intelligence powers in drafting Sec. 605 of
the Communications Act of 1934, the court in U.S. v. Butenko, 494F. 2d.
593 (3d Cir. 1974), cert. denied, 43 U.S.L.W. 3213 (U,S. Oct. 15, 1974),
which cites U.S. v. Curtiss-Wright, supra, said:
Indeed, had Congress explored the question, it
no doubt would have recognized, as (the District
Court's) discussion may well indicate, that any
action by it that arguably would hamper , .. the
President's effective performance of his duties in
the foreign affairs field would have raised con-
stitutional questions. ,(emphasis added .-7
18. It may appear that the particular issue raised in this section is
not particularly apropos to a paper dealing primarily with the leg'timacy
of certain actions under international law or that this section confuses
legitimacy of action under domestic law with legitimacy of action under
international law. Unfortunately there is, and probably must be, an overlap
or an inherent friction with regard to the latter two fields. This is primarily
because constitutionally-authorized Presidential action in the area of foreign
affairs inherently is noteworthy in terms of the question "What is the customary
international practice?" International custom has a qualitative as well as a
quantitative aspect to it. For example, if the United States or the U.S.S.R.,
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as the world's two superpowers, abstained from a practice sustained by the
developing states, i . e . , a majority of the U, N. members, it is dubious that.
.one could correctly call that practice customary international law. Obversely,
if the U. S. and U.S.S.R. engaged in an international practice abstained
from by the rest of the world, the qualitative impact of that practice alone,
as Professor Roger Fisher of the Harvard Law School has pointed out, would
create a strong case for arguing that the practice constituted a customary
rule of international law, at least within the area of U . S . -U . S . S . R , inter-
national interaction, or alternatively, within the functional area of the
practice. In other words, constitutional Presidential action in foreign affairs,
especially but not only when initiating a new practice, has an important
informative role to play with regard to international law. International
law, on the other hand, may have a formative role in terms of Presidential
decision-making. There is an interaction here to be sure, but for purposes
of U. S. law, the emphasis must be placed on the formative effect of Presi-
dential action on international law rather than the other way around, This
point is made clear by the old, but nevertheless standing, case of The
Paqueto Habana, 175 U.S. 677 (1900), where Justice Gray declared:
L'I'heJ rule of international law is one which ...
courts administering the law of nations are bound to
take ... notice of, and to give effect to, in the absence
of any ... public act of their own government in relation
to the matter, ,[emphasis added J
In Paqueto Habana the Court decided that peaceful fishing vessels were not
subject to capture in time of war, but an important part of the Court's
thought process, as reflected in Justice Gray's opinion, was that President
McKinley had declared that the Spanish-American War would be conducted
by the U. S. in accordance with theretofore recognized international custom
relating to the laws of war. The Court, in Paqueto Habana, was saying that
President McKinley's decision was formative in terms of the rules of inter-
national practice governing U. S. conduct of the war; the Court iv s not
saying that the prior international practice would have made a contrary
decision by the President wrongful or illegal under international law,
Likewise, Judge Thomas in The Over the Top, 5 F.2d 838 (D. Conn, 1925),
declares: "International practice is law only in so far as Che U. S..7
adopts it.... " Judge Thomas' statement may be a bit strong; nevertheless,
it accurately makes the point that constitutional Presidential action in the
area of foreign affairs must be weighed by U. S. courts as of paramount
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importance in deciding what the applicable rule of international law is.
In sum, U.S. unilateral action plays an extremely important role in forming,
as well as confirming, international rules; and if any U. S. action, especially
action based on the rule of self-preservation, is contrary to the practice of
certain other states, for purposes of U. S, interpretation of international law,
one has an extremely difficult burden if he wishes to contend that the U. S.
action is violative of international law.
Separate Issues Concerning the Interpretation of the
Provisions of the 1961 Vienna Conventions: Do They
Really Prohibit Classical Espionage Electronic Surveillance
and Covert Action?
19. The first point to be made about the interpretation of the provisions
of the Vienna Conventions is that American sources have never considered
them to be absolute. For example, 2 Foreign Affairs Manual (FAM),
Department of State, 231.3 (4-30-68) states that the inviolability of foreign
diplomatic premises has an exception "in cases of public emergency. "
Fires or similar disasters have been traditionally referred to as examples
of such emergencies.
20. The second, and perhaps the most important point concerning
the interpretation of the cited Articles, is that their provisions must be
interpreted in light of on-going custom (i.e. , custom related to a treaty
provision which led to a rule of international law before the treaty, and
which custom continued during the period of treaty ratification, and still
continues today . Pollock, "The Sources of International Law, " in 2 Col. L.
Rev. (1902) 511-512.
21. Espionage and covert action have been part of the customary
practice of States in their international relations since before the time
of Christ. They continued to be part of the international practice of
most States during the period of ratification of the Vienna Conventions.
They continue to be practiced today. The last two sentences can also be
applied to the practice of electronic surveillance. President Ford made
this point perfectly clear in referring to the customariness of espionage
activities in world affairs at his press conference of 16 September 19,74.
At that conference, the President stated: %
... Our government, like other governments, does
take certain actions in the intelligence field to help
implement foreign policy and to protect national
security, I am informed reliably that Communist
nations spend vastly more money than we do for
the same kind of purposes.... (H)istorically, as
well as presently, such actions are taken in the
best interests of the countries involved. Washington
Post, September 17, 1974.
18
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The fact that embassy facilities of many states in many different host
countries have consistently been used by intelligence officers in order to
carry out classical espionage, electronic surveillance, and covert activities
is so well documented, that there can be little doubt that these activities
constitute customary international practice. With regard to diplomats of
the Eastern European states and the U.S.S.R., attention should be drawn to
the Washington Post of 17 October 1974, which reports:
FBI Director Clarence M. Kelley yesterday warned
that the FBI doesn't have enough agents to keep track of the
growing number of foreign spies in the United States ....
Kelley told reporters there is a growing gap in the
ratio of FBI agents to Communist diplomats ... all of whom
he called 'potential agents gathering information.'
No concerned party has suggested that any of the cited articles modify its
ongoing practice or the practice of other States related to espionage or
surveillance activities. Nor has any member of the U. S. Senate, in giving
his advice and consent regarding the Conventions, or at any later time, so
suggested. As Robert C, Dixon, Jr. , Assistant Attorney General, Office
of Legal Counsel, Department of Justice, in a letter of 4 May 1973 to the
Acting Legal Adviser of the Department of State regarding the Convention
on Diplomatic Relations, points out:
.. , LfiJhe history of the ratification of the Convention shows
that neither the Executive nor the Senate intended, by ratifi-
cation, to supercede existing legislation and that separate action OGC
would be needed if existing law were to be repealed. Rovine,
Digest of United States Practice in International Law 1973, p. 145.
FOIA
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OGC
FOIAB5
The CIA and its supporters can ... claim -- fairly,
we believe -- that ... the agency has a congressional
mandate ... for covert operations.
23. No State has argued that the Conventions cited, or any other rule
of international law, prohibit these tacitly agreed-upon activities of the secret
services. Understandably, this has not been a subject of great debate in the
past. These areas are of course sensitive ones. But there is nothing in the
Conventions on Diplomatic and Consular Relations which should lead one to
believe that these Conventions were meant to deal with the subject of classical
espionage activities, or to outlaw those activities. Customary international
practice, in fact, makes it fairly clear that the Conventions were intended
merely to deal with the traditional diplomatic jurisdictional immunities and
privileges accorded members of the diplomatic community by national courts
and national judicial processes. The history of the ratification of the Con-
ventions by the U. S. Senate, the expressed opinion of the U. S. Congress
concerning Agency activities found in debates on the Agency's charter,
appropriations and policy votes furthermore confirm that the views expressed
in this paragraph are most definitely the agreed-upon interpretation of the
Conventions as far as the Executive and Legislature of the United States are
concerned.
24. The sovereign right of self-preservation, which includes the
right of anticipatory self-defense, is one of the most absolute in inter-
national law. It inherently dominates any interpretation of any other rule
of law, including treaty provisions.
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25. Classical espionage, electronic surveillance in intelligence
matters, and covert action are traditional parts of the right of self-
preservation.
26. It follows that the President may constitutionally authorize
actions for the self-preservation of the United States, unless explicitly
prohibited by the Constitution itself, Such actions would be greater
evidence of a rule of international law than a provision of a prior treaty to
which the U. S, was a party.
27. The Vienna Conventions on Diplomatic and Consular Relations
address themselves to the protection of traditional diplomatic privileges
and immunities and were not intended to outlaw espionage acitivite. This
point is made perfectly clear by the ongoing customariness of these activities
by the States-Party.
28, The Executive and Congress of the United States have clearly
intended, in expressions of their opinions up to and including October 1974,
that the Agency continue its traditional tasks in the realms of classical
espionage, surveillance, and covert activities. No obligation of the United
States undertaken pursuant to international law was intended by the United
States Government to modify the scope of these tasks.
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CIVIL LITIGATION IN IOI STING VICTOR L. MARCHETTI
1. The Court of Appeals for the Fourth Circuit:in Richmond,
Niirginia, on February 7, 1975, decided the appeal in the case in-
volving the CIA deletions from the Marchetti book The CIA and the.
Cult of Intelligence. The court ruled in favor. of the Agency and
decided that the Agency's determination that information was
classified in accordance with the Executive.order-was a proper
2. The District Court.judge had questi.oned-'the classification..
of 142 deletions from the book. The Court of Appeals stated that
the District Court should have accepted the testimony-of the four
Deputy Directors of the Agency that information contained.in the
book within their responsibility was classified. The court has
now set a standard whereby the Agency knows what it has to prove
to demonstrate classification. This is a major.: accomplishment
and assists the Director in exercising his responsibility.to
Urotect intelligence sources and methods information from un-
authorized disclosure. That standard is:-
In short, the government was required
item disclosed information which was
required to be classified inany degree
and which was contained in a. document
bearing a classification stamp.
3. The court opinion recognized the necessity to protect the--
sensitive classified information which the Agency deleted from the.-
The national interest.requires that.the
government withhold or. delete.unrelated:
items of sensitive information, as it
.did, in the absence.-of compelling.
necessity. .
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4W_. If.
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CIVIL LITIGATION INVOL iNG VICTOR L. n''ARCHETTI
decided that the Agency's determination that-information was
classified in accordance with the Executive order-was a proper
1. The Court of Appeals for the Fourth Circuit in Richmond,
Virginia, on February 7, 1975, decided the appeal in the case in-
volving the CIA deletions from the Marchetti book The CIA and the
Cult of Intelligence. The court ruled in favor of the Agency and.
to demonstrate classification. This is a major,. accomplishment
and assists the Director in exercising his responsibility.to
crotect intelligence sources and methods information from un-
boos within their responsibility was classified. The court has
now set a standard whereby the Agency.knows what it has to prove
2. The District Court judge had questioned-the classification
of 142 deletions from the book. The Court of Appeals stated that
the District Court should have accepted the testimony of the four
Deputy Directors of the Agency that i.nformation'contained in the
3. The court opinion recognized the necessity to protect the
sensitive classified information which.the Agency deleted from the.
and which was contained in a. document
bearing a classification stamp.
required to be classified in any degree
item disclosed information which was
to show no more than that each deletion
in short, the government was required
authorized disclosure. That standard is:.-'
book and said:
The national interest.requires that the
government withhold or:delete.unrelated.-
items of sensitive information, as it.
did, in the absence--of compelling
necessity.
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