Revisiting the Office of Legal Counsel’s Override Opinion

In light of Attorney General William Barr’s reported role in the use of force against protestors by federal law enforcement, it is worth revisiting another element of Barr’s use of force legacy from his prior tenure at the Department of Justice.

As head of the Office of Legal Counsel (OLC), Barr signed a foundational 1989 opinion on the president’s authority to direct the use of force – against other states. In Authority of the Federal Bureau of Investigation to Override International Law in Extraterritorial Law Enforcement Activities (hereinafter the Override Opinion), OLC determined that “as a matter of domestic law, the Executive has the power to authorize actions inconsistent with Article 2(4) of the U.N. Charter.”

The conclusion that the president has inherent constitutional authority to “override” Article 2(4) of the Charter of the United Nations has weighty implications for the scope of the president’s war powers. (Readers may recall that Article 2(4) requires that states “shall 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.”) Thus, if the president has the authority to “override” Article 2(4), he would be able to brush aside one of the principal legal limits to unilaterally ordering a military strike against another state.

Ryan Goodman has already examined Barr’s representations to Congress regarding the opinion. Given that the memo appears to be the controlling executive branch legal opinion on the interplay between the president’s executive powers and Article 2(4) of the UN Charter, the substance of the Override Opinion also merits greater attention. Drawing on a forthcoming article in the Cornell Law Review, I’ll briefly sketch out the opinion’s analysis on this issue and its flaws. (Marty Lederman previously touched on some of these matters in his discussion of so-called “non-self-executing treaties” in the middle of this Just Security article.)

Main Conclusions of the Override Opinion

The Override Opinion examines a number of issues related to the legal authority, constraints, and implications of extraterritorial FBI investigations and arrests. After concluding (contrary to an earlier 1980 OLC opinion) that the FBI had statutory authority to conduct such activities even if they violated customary international law, the opinion turned to the interplay between the president’s constitutional authority to direct such activities and international law.

First, OLC opined that even in the absence of statutory authority, the president had constitutional authority to direct law enforcement activities overseas pursuant to the Take Care Clause. In reaching this conclusion, the opinion relied on the Supreme Court decision in In re Neagle. In that case, the Supreme Court included broad dicta supporting the view that the president’s duty to “take care that the Laws be faithfully executed” extends to enforcing “acts of Congress,” “treaties of the United States according to their express terms” as well as the “rights, duties, and obligations growing out of the Constitution itself, our international relations, and all the protection implied by the nature of the government under the Constitution.” In view of In re Neagle, OLC concluded that the president possessed constitutional authority to direct law enforcement activities.

Second, the opinion concluded that the president could direct such activities even if they violated customary international law. On this issue, the opinion cited the Supreme Court’s opinions in The Schooner Exchange v. McFaddon, Brown v. United States, and The Paquette Habana, in support of the proposition that “both Congress and the President, acting within their respective spheres, retain the authority to override any such limitations imposed by customary international law.” (I will bracket for the purposes of this article whether this claim is correct.)

Third, and most significantly, in four terse paragraphs, the Override Opinion addressed the issue of whether “Article 2(4) of the UN Charter would prohibit the Executive as a matter of domestic law from authorizing forcible abductions absent acquiescence by the foreign government.” The analysis begins with a black-letter recitation of the distinction between self-executing and non-self-executing treaties. Following this recitation of the relevance of the non-self-execution doctrine in terms of providing rules of decision for courts, the opinion makes a logical leap in the following sentence to claim that treaties deemed “non-self-executing” are not binding on the political branches. “Accordingly, the decision whether to act consistently with an unexecuted treaty is a political issue rather than a legal one, and unexecuted treaties, like customary international law, are not legally binding on the political branches.” This assertion is unaccompanied by citation to any authority. The opinion then claims that it follows that the “President acting within the scope of his constitutional or statutory authority, thus retains full authority to determine whether to pursue action abridging the provisions of an unexecuted treaty.”

After stating that Article 2(4) if non-self-executing, the Override Opinion asserts that Article 2(4) “relates to one of the most fundamental political questions that faces a nation – when to use force in international relations.” The opinion concludes that it is on this basis that the “Executive has power to authorize actions inconsistent with Article 2(4) of the UN Charter.”

Errors in the Override Opinion’s Analysis of Article 2(4)

The Override Opinion’s treatment of Article 2(4) is striking in a number of respects. In light of the significance of its conclusion, the analysis is remarkably brief and bereft of citation to supporting authority. The opinion does not acknowledge, much less address, potential counterarguments.

The shortcomings of the Override Opinion are particularly stark because the opinion itself accepts the proper framing of the issue in its discussion of the president’s constitutional authority to direct law enforcement activities. Whether or not Article 2(4) of the UN Charter binds the president does not turn on whether this provision is self-executing. Instead, the critical question is whether the UN Charter is a “Law” that the President is obligated to “faithfully execute” under the Take Care Clause.

As reflected in the Override Opinion’s quotation of In re Neagle, the “Laws” include treaties. This conclusion is consonant with the weight of authority (reviewed here), which supports the proposition that treaties generally and the UN Charter in particular are “Laws” within the meaning of the Take Care Clause. This authority includes the “historical gloss” (as a form of constitutional interpretation) placed on the meaning of “Laws” by two centuries of practice. Of particular relevance, as I explain in my law review article, there was a shared understanding between the Roosevelt and Truman administrations on the one hand and the Senate on the other that once ratified, the UN Charter would be a “Law” for the purposes of the Take Care Clause.

The understanding that the UN Charter is “Law” was also an important element of the Truman administration’s argument for the use of force on the Korea Peninsula in the absence of prior congressional authorization. In a 1951 legal memorandum, entitled Authority of the President to Repel the Attack in Korea, the Truman administration explained, “the President has the authority and the duty to carry out treaties of the United States. Treaties, duly approved, are the laws of the land and it becomes the President’s duty ‘to take care that they be faithfully executed’ as laws.” Consequently, the administration concluded that the President is “under a duty to see that the great objectives of the Charter are carried on so far as it lies within his power to do so.”

Although the Override Opinion seems to accept that treaties generally are “Laws,” it nonetheless argues that the president could unilaterally order violations of Article 2(4) on the basis that this treaty provision is non-self-executing. Yet, the Override Opinion’s treatment of the doctrine of non-self-executing treaties erroneously conflates two entirely separate matters: when the judiciary should enforce a law with whether the law binds the president.

The doctrine of non-self-executing treaties originates in Foster v. Neilson, where Chief Justice Marshall explained that:

A treaty is in its nature a contract between two nations, not a legislative act. If does not generally effect of itself the object to be accomplished, especially so far as its operation is infra-territorial, but is carried into execution by the sovereign power of the respective parties to the instrument.

In the United States a different principle is established. Our constitution declares a treaty to be the law of the land. It is consequently to be regarded in courts of justice as equivalent to an act of the legislature, whenever it operates of itself without the aid of any legislative provision. But when the terms of the stipulation import a contract, when either of the parties engage to perform a particular act, the treaty addresses itself to the political, not the judicial department; and the legislature must execute the contract before it can become a rule for the Court.

Courts and scholars use the label “non-self-executing” inconsistently and often imprecisely. (As Carlos Vazquez has explained.) Courts (including the Supreme Court in Medellin) sometimes use broad dicta suggesting that non-self-executing treaties are not “domestic law.” Yet, in the judicial context, such language is best understood as meaning that such treaties are not “domestic law” for the purposes of the court.

Whether Article 2(4) is non-self-executing for the purposes of judicial enforcement is not dispositive as to whether such a treaty provision constitutes a “Law” for the purposes of the Take Care Clause. In line with the understanding that the Charter is a “Law,” in the centuries following the emergence of the non-self-execution doctrine, the executive branch generally has not distinguished between self-executing and non-self-executing treaties when discussing the scope of the “Laws.” This executive branch understanding is also evident in the Truman administration’s legal justification for the use of military force in Korea. In another 1951 memorandum, Powers of the President to Send the Armed Forces Outside the United States, the Truman administration cites former President Taft’s study of executive power for the proposition that the president “does not depend on implementing legislation when the purpose of the treaty can be served by something he has the power to do.” No additional legislation is necessary for the president to refrain from taking certain actions that are constitutionally committed to him as Commander in Chief, namely abstaining from directing the US military to use force. Even if one would dispute the extent to which a treaty might empower the president, it doesn’t follow that the president may disregard a prohibitory treaty provisions such as Article 2(4).

The Senate Foreign Relations Committee continues to endorse the view that even non-self-executing treaties are “Laws,” as a corrective to erroneous dicta in Medellin. “In accordance with the Constitution, all treaties–whether self-executing or not–are the supreme law of the land, and the President shall take care that they be faithfully executed,” a 2010 report stated.

Although initially secret and still relatively obscure, the Override Opinion is extremely consequential as it provides the president a practical license to violate one of the foundational rules of modern international law, a rule intended to “save succeeding generations from the scourge of war,” and a rule that the United State played a pivotal role in creating. What’s more, due to the reasoning of the opinion, its significance may extend far beyond the president’s powers in war and foreign affairs.

The conclusion that the president has the authority to override Article 2(4) of the UN Charter appears to rest on the absence of judicial enforcement. Under this view, the only law binding upon the president is that which is judicially enforceable. In other words, if the president can get away with it, then it must be legal.

 The author is an attorney-adviser in the Office of the Legal Adviser at the Department of State. This piece was written in the author’s personal capacity and the views expressed are his own and not necessarily those of the U.S. Government.

 

Photo: A RIM-7 NATO Sea Sparrow Missile (NSSM) is fired from the forward launcher aboard Wasp-class amphibious assault ship USS Essex (LHD 2) during a live-fire exercise, March 9, 2015 (U.S. Navy photo by Mass Communication Specialist 2nd Class Christopher B. Janik/Released)

 

About the Author(s)

Brian Finucane

The author is an attorney-adviser in the Office of the Legal Adviser at the Department of State. This piece was written in the author’s personal capacity and the views presented here do not necessarily represent those of the Department of State or the United States government.