The question whether the United States Government should pay ex gratia compensation to the survivors of those killed in the accidental destruction of Iranian Airlines Flight No. 655 raises some important issues of law and policy. In the following comments, I have attempted to provide a brief overview of the issues involved. …

This issue of our Journal highlights “new thinking” by two leading Soviet legal scholars. That, however, is only part of a larger transformation of the climate in which international law and institutions operate. Nowhere has this transformation been more remarkable than at the United Nations.

In the wake of Vietnam and Watergate, Congress set out to attack the imperial Presidency and to recapture its “historic constitutional role” in foreign policy. The tools of congressional activism included the National Commitments Resolution, the War Powers Resolution, the Case Act, the legislative veto over arms sales and nuclear exports, trade restrictions aimed at the Soviet Union and regulation of intelligence activities. In response, Presidents Carter and Reagan charged that Congress was invading presidential prerogatives. Joined by former executive branch officials and academic commentators, they saw an imperial Congress and believed the solution was a strengthened Presidency.

Plaintiffs, Sperry Corp. and Sperry World Trade Inc. (Sperry), received an award from the Iran-United States Claims Tribunal (Tribunal). Upon payment of the award, the United States deducted 2 percent of the total amount pursuant to a directive license issued by the Secretary of the Treasury regarding recovered claims by U.S. nationals against Iran. When plaintiffs challenged the authority of the Treasury to make the deduction and the United States Claims Court announced a preliminary ruling that concurred with plaintiffs’ position, the Executive persuaded Congress to approve legislation authorizing specified percentages to be deducted by the United States from Tribunal awards to U.S. citizens. Responding to the plaintiffs’ challenge to the constitutionality of the newly enacted statute, the United States Claims Court dismissed the suit and, on appeal, the United States Court of Appeals for the Federal Circuit (per Meyer, J.) reversed and held: that the deduction constitutes a taking without compensation in violation of the Fifth Amendment to the United States Constitution. In September 1988, the United States filed notice of appeal with the Supreme Court.

Of all the revelations emanating from the Iran-contra hearings, the most startling constitutional claim was the assertion that Congress cannot control foreign affairs by withholding appropriations. According to the argument advanced by some administration officials, if Congress prohibits the use of appropriations for foreign policy objectives—as it did with the Boland amendment—the President can nevertheless continue his goals by soliciting funds from the private sector and from foreign countries. If one well dries up, tap another. This theory has profound implications for executive-legislative relations and constitutional government.

On March 24, 1989—Good Friday—President Bush and congressional leaders signed a landmark agreement committing them to support nonlethal aid for the Nicaraguan contras, together with Central American peace efforts. Under this “gentleman’s agreement,” aid would continue through February 1990. But in November 1989, the President must get letters from each of four congressional committees approving the continuation of aid after that month. If a majority of the membership of any one of those committees declines to authorize the letter, the President agreed, he will terminate the aid.

The flight crew of flight IR655 was properly certificated and qualified for the scheduled international passenger flight in accordance with existing regulations. There was no indication that the flight crew may not have been physically or psychologically fit.

The first thing to learn about any incident or accident involving airplanes is “wait.” The initial reports never have it quite right. This was true about KAL Flight 007, about Pan Am Flight 103, about the bombing of Tripoli and Bengazi, and about Iran Air Flight 655.

In matters of foreign relations and national security, Presidents believe they know best, because they, alone, possess the information, advice and range of means to meet an imminent threat. It follows that when the judiciary or the Congress seeks to second-guess the exercise of what Chief Executives now are pleased to call the “foreign relations and national security power,” they are regarded as gratuitous intermeddlers. This is nowhere more tenaciously asserted by Presidents than in matters pertaining to the deployment of U.S. armed forces for combat abroad.

In 1985 two intelligence agencies of the South Korean Government announced that they had successfully disrupted a North Korean spy ring operating in the United States. Their press release, which was widely publicized in the Korean press, named Chang-Sin Lee as a North Korean agent associated with a spy ring at Western Illinois University, where Lee had been a student. The story was picked up and reported in the United States by six Korean-American newspapers and a public television station. When Lee sued for libel, the defendants relied upon the official report privilege, which gives absolute protection to the accurate republication of official government reports. The district court, holding that the privilege applied and that Lee had not overcome it by showing malice, dismissed the case. Plaintiff appealed to the U.S. Court of Appeals for the Second Circuit, which in a two to one decision reversed (per Ervin, J.) and held: that the official report privilege does not apply to the republication of official reports of foreign governments. Judge Kaufman, sitting by designation, dissented from the majority’s reversal of the district court’s grant of summary judgment.

In his concurring opinion in the recent tax treaty case United States v. Stuart, Justice Scalia reports that “I have been unable to discover a single case in which this Court has consulted the Senate debate, committee hearings or committee reports” to interpret a treaty. Even more sweepingly, he says that two 1988 opinions in a district court are the “first (and, as far as I am aware, the only) federal decisions relying upon pre-ratification Senate materials for the interpretation of a treaty.” He moves from there to conclude that the “Restatement (Third) of the Foreign Relations Law of the United States §314, Comment d (1986); id., §325, Reporter’s [sic] Note 5 … must be regarded as a proposal for change rather than a restatement of existing doctrine.” Those are the paragraphs in which the Restatement approves the use of such materials.

Defendant Fawaz Yunis, a Lebanese resident and citizen, was charged for his alleged involvement in the 1985 hijacking of a Jordanian civil aircraft in the Middle East. Defendant moved to dismiss the indictment on the ground that, under general principles of international law, the court lacked subject matter and personal jurisdiction over a crime committed by a nonresident alien on foreign soil and that federal law provided no independent basis for such jurisdiction. The United States District Court for the District of Columbia (per Parker, J.) denied the motion to dismiss in part and granted it in part, and held: (1) that those counts of the indictment charging the defendant with violation of section 32(a) of the Destruction of Aircraft Act (18 U.S.C. §32(a) (1986)) (Aircraft Piracy Act) should be dismissed on the ground that this section provided no jurisdiction over aircraft piracy offenses having no connection to U.S. territory; (2) that traditional principles of international law provided sufficient grounds for asserting both subject matter and personal jurisdiction over the other crimes charged; and (3) that the Act for the Prevention and Punishment of the Crime of Hostage Taking (18 U.S.C. §1203 (1986)) (Hostage Taking Act) and section 32(b) of the Aircraft Piracy Act imposed liability for the offenses allegedly committed by the defendant.

Wholly apart from the questions of whether and under what circumstances major coercion is permissible under international law and whether minor coercion, including threats, is lawful, there is a broad and deep national consensus that the United States should continuously develop a military capacity sufficient for a range of contingencies and maintain it in a state of readiness. The consensus has been far less certain with regard to who will decide, and how, to initiate and use this capacity, at varying intensities. The original terms of the Constitution have been invoked by partisans of opposing views, but debate in those terms has proved inconclusive. Behind the legal bickering, a complex, but unstated, operational code has developed, allocating competence to initiate, direct and terminate different types of coercion among the branches. Parts of the operational code are clear and relatively stable over time. Other parts are less certain and can be projected only with qualifications, reservations or contingencies.

As the Constitution enters its third century, its framework for the exercise of war powers is under siege. Presidential exercises of war powers to repel attacks, rescue lives, protect property, retaliate and threaten have posed the most persistent and visible challenge to that framework. But an equal theoretical challenge is posed by a power that the President has used only twice, the nuclear war power. Part I of this essay describes that challenge. Part II evaluates the constitutionality of the existing distribution of nuclear war powers. Part III identifies—but does not explore—alternatives.

Defendants, citizens of the United Kingdom, Bermuda, the Federal Republic of Germany and the United States, were operators of a sailing vessel on the high seas that was registered in the United Kingdom and flying the UK flag. Defendants were indicted for possession of several tons of marijuana, with intent to distribute, following a search and seizure of their vessel by the United States Coast Guard. Initially, the court granted defendants’ request for an evidentiary hearing. However, upon further consideration, the U.S. District Court for the Northern District of California (per Legge, J.) held: that the court had proper jurisdiction, and that defendants’ motions to suppress evidence obtained from the boarding, search and seizure of the vessel and to conduct an evidentiary hearing should be denied.