64. Office of the Legal Adviser memorandum concerning the Liberia Proliferation Security Initiative Agreement
October 29, 2004
Bringing PSI Shipboarding Agreements into force
without Congressional Authorization:
Article-by-article Analysis of Liberia Agreement of February 11, 2004
Article 1. Definitions
• Definitions 1-5 are based on the Proliferation Security Initiative (PSI) Statement of Principles1
• Definitions 6-7 and 10 are based on Titles 10 U.S.C. 101and 374, and 14 U.S.C. 1, 2 and 89.
• Definition 9 is based on the international law of the sea accepted by the United States.
Article 2, Object and Purpose of Agreement
• Paragraph I defines the object and purpose of the agreement to be “to promote cooperation between the Parties to enable them to prevent the transportation by sea of items of proliferation concern.” This is consistent with 18 U.S.C. 2339B and Note in the context of international terrorism.
• Paragraph 2 is based upon UN Charter Articles 1(1), 2(1) and 2(4).
• Paragraph 3 on cooperation is limited to availability of resources and compliance with domestic law. 14 U.S.C. 142.
Article 3, Cases of Suspect Vessels, limits the factual scope of operations (targets) under the agreement.
Article 4, Operations in International Waters
• Paragraphs 1-3 provide the administrative and operational procedures for obtaining authority to board suspect vessels, but does not compel any particular response. USCG authority to board US- vessels or any vessel subject to the jurisdiction, or to the operation of any law, of the United States, is contained in 14 U.S.C. 89.
Congress may by law impose penalties relating to the provision of material support to foreign organizations engaged in terrorist activity;
(3) the power of the United States over immigration and naturalization permits the exclusion from the United States of persons belonging to international terrorist organizations
(4) international terrorism affects the interstate and foreign commerce of the United States by harming international trade and market stability, and limiting international travel by United States citizens as well as foreign visitors to the United States;
(5) international cooperation is required for an effective response to terrorism, as demonstrated by the numerous multilateral conventions in force providing universal prosecutive jurisdiction over persons involved in a variety of terrorist acts, including hostage taking, murder of an internationally protected person, and aircraft piracy and sabotage;
(6) some foreign terrorist organizations, acting through affiliated groups or individuals. raise significant thnds within the United States, or use the United States as a conduit for the receipt of funds raised in other nations; and
(7) foreign organizations that engage in terrorist activity are so tainted by their criminal conduct that any contribution to such an organization facilitates that conduct.
(b) Purpose--The purpose of this subtitle [Subtitle A of Title Ill of Pub.L. 104-132, enacting this section and section 1189 of Title 8, Aliens and Nationality~ is to provide the Federal Government the fullest possible basis, consistent with the Constitution, to prevent persons within the United States, or subject to the jurisdiction of the United States, from providing material support or resources to foreign organizations that engage in terrorist activities.
• Paragraph 6 preserves other bases in existing international law for boarding of foreign flag ships in international waters.
Article 5, Exercise of Jurisdiction over Detained Vessels, as well as Items and Persons on Board
• Paragraph 1 comports with the right of the flag State to exercise enforcement jurisdiction over its vessels (consistent with article 6 of the High Seas Convention and Articles 92 and 94 of the Law of the Sea Convention), but permits the flag State to waive this right in favor of the boarding State, consistent with the flag State’s domestic laws and Constitution (consistent with article 22.1 of the High Seas Convention and article 110 of the Law of the Sea Convention).
• Paragraph 2 provides rules for allocating enforcement jurisdiction over foreign flag vessels in the boarding State’s contiguous zone, where both States have a concurrent right to exercise jurisdiction consistent with LOS Convention article 33 and Presidential Proclamation 7219, September 2, 1999. It allocates jurisdiction to the boarding state except in cases of hot pursuit, where pursuant to article 111 of LOS and article 23 of the High Seas Convention the coastal State has exercised that right before the boarding takes place.
• Paragraph 3 requires decisions on disposition to be taken without delay or expeditiously, but does not mandate any particular disposition or manner of disposition.
• Paragraph 4 provides guidance as to the form of waiver of enforcement jurisdiction, which must in all cases be consistent with the Constitution and laws of the waiving State. Under U.S. law, most waivers to the U.S. occur with regard to persons in international waters. Waiver by the U.S. over persons on board U.S. flag vessels are generally within the discretion of the Executive Branch.
Extradition would be required only in the case of Germany and the Netherlands with whom our extradition treaties expressly apply at sea.
The ability of the United States to exercise enforcement jurisdiction over a particular defendant turns on whether the facts constitute a substantive offense under the domestic law of the United States and whether that offense applies extraterritorially.
Article 6, Exchange of Information and Notification of Results of Actions of the Security Force provide administrative procedures.
• Paragraph 1 requires the Parties to endeavor to exchange operational information on the
detection and location of suspect vessels, but does not require them to do so. Paragraph I also requires the Parties to maintain communications with each other as necessary to carry out the purpose of the Agreement
• Paragraph 2 requires the Party conducting the boarding to inform the flag State of the results of the boarding through the Competent Authorities. 14 U.S.C. 141 and 142 authorize USCG to do so with concurrence of the Secretary of State.
• Paragraph 3 requires a Party to inform the other Party of the status of cases waived by it as permitted by the laws of the Party exercising jurisdiction. This refers for the most part to those laws pertaining to the release of information on pending criminal cases. (Rule 6(e)(2) of Federal Rules of Criminal Procedure proscribes the release of grand jury proceedings pending the unsealing of an indictment; 14 USC 141 and 142.)
Article 7, Conduct of Security Force Officials
• Paragraph 1 requires compliance with domestic law and policy, which in the case of the U.S. Coast Guard is found in the Maritime Law Enforcement Manual, a written instruction issued by the Commandant (COMDTINST 16247.1 (series)). In the case of the U.S. Navy, such direction is contained in the applicable operations and other orders promulgated by the Secretary of Defense, Combatant Commanders, and subordinated commanders, and U.S. Navy directives.
• Subparagraphs 2(a) and (b) address the class of persons permitted to conduct the boardings and the vessels from which they may operate.
• Subparagraph 2(c) permits the boarding teams to carry arms.
These provisions are consistent with existing USCG and USN policies.
Article 8, Safeguards, provides operational requirements for the conduct of boardings.
These safeguards are consistent with existing USCG and USN policies noted above and
procedures (provided for the USCG in Chapters 2, 3, and 10 of the Maritime Law
Enforcement Manual), and are consistent with existing international law accepted by the
Article 9, Use of Force provides limitations on the use of force that are consistent with
USCG and DoD use of force policies (provided for in Chapter 4 of the Maritime Law
Enforcement Manual, Navy directives, and the CJCS Standing Rules of Engagement) and
are consistent with existing international law accepted by the United States.
Article 10, Exchange and Knowledge of Laws and Policies of Other Party, and Article II, Points of Contact. These provisions are within the existing administrative authority and policies of the USCG and USN.
Article 12, Disposition of Seized Property, reflects existing U.S. law on asset forfeiture, 18 U.S.C. 981(a)(1)(G) and 981(i).
Article 13, Claims, only requires processing of claims pursuant to domestic law, which for the United States includes the Public Vessels Act (46 U.S.C. App. 781-790), Suits in Admiralty Act (46 U.S.C. App. 741-752), Military Claims Act (10 U.S.C. 2733) and the Foreign
Claims Act (10 U.S.C. 2734), all of which are applicable both to the U.S. Navy and the U.S. Coast Guard.
Article 14, Disputes and Consultations, does not include compulsory dispute resolution as to claims or other matters.
Article 15 provides that nothing in the agreement affects existing rights, privileges and legal positions regarding international law.
Article 16, Cooperation and Assistance, permits but does not require the United States to provide technical assistance or permit entry into its territorial sea.
Article 17, Entry into Force and Duration. The agreement does not enter into force on signature, but rather after the necessary domestic requirements are completed. Pending entry into force the agreement is being provisionally applied, pursuant to the Vienna Convention on the Law of Treaties (VCLT) Article 25. The agreement may be terminated on one year’s written notice, but termination does not affect pending administrative or judicial proceedings.
Article 18, Rights for Third States, permits Liberia, but not the United States, to extend the provisions of the agreement to third States that also have the capability to conducting boardings at sea of suspect vessels, such as Canada, Australia and the UK, and who wish to take advantage of this Agreement. This provision is based on VCLT Articles 34-37.
 18 U.S.C. § 2339B (2003) provides that “[t]he Attorney General shall conduct any investigation of a possible violation of this section, or of any license, order, or regulation issued pursuant to this section,” (emphasis added), which provides: “Whoever, within the United States or subject to the jurisdiction of the United States, knowingly provides material support or resources to a foreign terrorist organization, or attempts or conspires to do so, shall be fined under this title or imprisoned not more than IS years, or both, and, if the death of any person results, shall be imprisoned for any term of years or for life.” Presuming that the Attorney General may, through the Department of State, seek the assistance of foreign States in carrying out the congressional mandate to investigate such offenses, section 2339B would, on appropriate facts, provide adequate authority for the Executive to authorize the boarding by foreign law enforcement officials of a U.S. flag vessel for the purpose of investigating any “possible violation” of the section. See Youngstown Sheet & Tube v. Sawyer, 343 U.S. 579, 635-37 (1952) (Jackson, J., concurring) (articulating the extent to which the President may set policy without violating the separation of powers); Untied States v. Curtiss- Wright Exp. Corp., 299 U.S. 304. 318-22 (1936) (explaining that the President has broad powers to set foreign policy). We note that the term ‘possible violation” is not a particularly high threshold.
Article 2 is consistent with section 301 of Pub. L. 104-132 (IS U.S.C. § 2339B note), which provided:
(a) Findings--The Congress finds that-
(1) international terrorism is a serious and deadly problem that threatens the vital interests of the United States;
(2) the Constitution confers upon Congress the power to punish crimes against the law of nations and to carry out the treaty obligations of the United States, and therefore
 Convention on the High Seas, done at Geneva April 29, 1958, TJ,A.S. 5200, 13 U.S.T. 2312,450 U.N.T.S. 82.
 United Nations Convention on the Law of the Sea, done at Montego Bay December10, 1982; 1833 U.N.T.S. 397, Sen. Treaty Doc. 103-39, Sen. Exec. Rpt. 108-10.
 See 4B U.S. Op. Off. Legal Counsel 406, 1980 WL 20935 (O.L.C.), Office of Legal Counsel, U.S. Department of Justice, Seizure of Foreign Ships on the High Seas Pursuant to Special Arrangements, February 19, 1980, citing Williams v. Rogers, 449 F.2d 513, 521, 522-23 (8th Cir. 1971). cert. denied, 405 U.S. 926(1972)).
 In this regard it should be noted that there is no U.S. statute akin to the Maritime Drug Law Enforcement Act, 46 USC App. 1901 et seq., that addresses such questions as proof in a U.S. Court of verification of nationality and waiver of enforcement jurisdiction by a foreign State.
 Potential offenses include 18 U.S.C. § 2332 (Terrorist Acts Abroad Against United States Nationals, which makes it a Federal crime for a terrorist overseas to kill a United States national, attempt to murder a United States national, conspire to murder a United States national, onto engage in physical violence with the intent to cause serious bodily injury to a United States national on with the result that serious bodily injury is caused to a United States national); 18 U.S.C. § 2332b (Terrorism Transcending National Boundaries, which is intended to reach violent international terrorist activity that takes place within the United States where at least a part of that activity also occurs outside the United States); 18 U.S.C. § 2339A (Providing Material Support to Terrorists, which reaches those persons who provide material support to terrorists knowing that such support will be used to commit one of the offenses specified in the statute, and requires only that the supplier of the material support have knowledge of its intended use, rather than whatever specific intent the perpetrator of the actual terrorist act must have to commit one of the specified offenses); 18 U.S.C. § 2339B (Providing Material Support to Designated Terrorist Organizations, which makes it unlawful, within the United States, or for any person who is subject to the jurisdiction of the United States anywhere, to knowingly provide material support to a foreign terrorist organization that has been designated by the Secretary of State); 18 U.S.C. §§ 175, 831, 2332c, 2332a (Use of Biological, Nuclear, Chemical or Other Weapons of Mass Destruction, which provide criminal jurisdiction over the use of biological (§ 175), chemical (§ 2332c), nuclear (§ 831), and other weapons of mass destruction (§ 2332a), including the use and threatened use of WMD committed within the United States, and, extraterritorially, whenever the perpetrator of the offense is a national of the United States, or a United states national, including property of the United States Government in most instances, is a victim of the offense). U.S. criminal law may also provide actionable offenses under the Arms Export Control Act, 22 U.S.C. § 2778, and the rules and regulations promulgated thereunder, 22 C.F.R. § 121-130, which prohibit the importation and exportation of aims, ammunition and implements of war without a license from the Department of Slate, Likewise, pursuant to the Trading with the Enemy Act, 50 U.S.C. App. 5(b), the Secretary of the Treasury has promulgated regulations prohibiting unlicensed transactions between U.S. nationals and certain designated foreign countries and their nationals. See 31 C.F.R. § 500.101.