formation with respect to registration directly or indirectly regarding State's interpretation or application of the Foreign Agents Registration Act?

The Department occasionally receives inquiries from the public concerning both the Foreign Agents Registration Act and 18 USC 951. Such inquiries are ordinarily referred to the Office of the Legal Adviser where they are answered. If the request asks for the Department's interpretation on application of the Foreign Agents Registration Act or 18 USC 951, that information is provided unless it would not be appropriate to do so—such as in a criminal proceeding.

10. Has the Department of State ever been requested to submit an affidavit or to testify in any grand jury, civil action, criminal or other proceeding on behalf of the government or any defendant regarding the Department of State's responsibilities under section 951? Identify each proceeding and witness, give a general statement as to the position taken by the State Department witness, and the results in each case including the outcome of the litigation.

The most recent case was U.S. v. Bryne, et al. (Eastern District of Pennsylvania, No. 75-773).

In that case the defendants were charged with conspiracy to violate, and violations of, 18 USC 951 and the Munitions Control Act. The specific charges were that they had exported more than 400 rifles to the Irish Republican Army and had acted as agents of the IRA without having notified the Secretary of State as required by 18 USC 951. The Department provided affidavits that the named defendants had not registered under section 951 which were used to obtain the indictment.

At the trial conducted in June of this year, a Foreign Service Officer, Mr. Lars Hydle, testified with respect to the nature of the Irish Republican Army so that the prosecution could establish that the IRA was a "body of insurgents" and thus within the definition of "foreign government" contained in 18 USC 11 which is the applicable definition for 18 USC 951. In addition, the Department provided detailed affidavits from numerous officers stating that files within their custody did not contain any records of registration by the defendants. The defense engaged in extensive discovery and acquired nearly everything in the Department's recent files dealing with 18 USC 951.

The Court dismissed the charges under 18 USC 951 after the government had presented its case. The chief reason for the dismissal was the lack of a State Department regulation prescribing standards and prescribing that all registrations must be forwarded to a single office. In the absence of such regulations, the court was persuaded that the government could not establish, with sufficient certainty, that the defendants had, in fact, not registered.

The defendants were convicted on the other counts, however, and were sentenced to one year.

We know of no instances in which the Department has been engaged in civil litigation concerning 18 USC 951.

There have been other successful prosecutions under 18 USC 951, most notably U.S. v. Butenko-(384 F.2d 554, vacated in 394 U.S. 165; on remand 318 F. Supp. 66). We do not have a complete list of prosecutions under 18 USC 951. Only the Department of Justice would be able to provide that to you.

Id. 162–163. For answers to other portions of this questionnaire, see ante, Ch. 4, § 1, pp. 247-254.

In section 509 of the Foreign Relations Authorization Act, Fiscal Year 1978 (Public Law 95-105), approved by President Carter on August 17, 1977, Congress established the conditions which must be satisfied by retired members of the uniform services, members of a Reserve component of the Armed Services, or any member of the

commissioned Reserve Corps of the Public Health Service to receive the consent required by section 9 of article I of the Constitution to accept civil employment from a foreign government. Portions of section 509 read as follows:

SEC. 509. (a) Subject to the condition described in subsection (b), the consent of Congress is granted to

(1) any retired member of the uniformed services,

(2) any member of a Reserve component of the Armed Forces, and

(3) any member of the commissioned Reserve Corps of the Public Health Service,

to accept any civil employment (and compensation therefor) with respect to which the consent of Congress is required by the last paragraph of section 9 of article I of the Constitution of the United States, relating to acceptance of emoluments, offices, or titles from a foreign government.

(b) No individual described in subsection (a) may accept any employment or compensation described in such subsection unless the Secretary concerned and the Secretary of State approve such employment.

(c) For purposes of this section, the term

(1) "uniformed services" means the Armed Forces, the commissioned Regular and Reserve Corps of the Public Health Service, and the commissioned corps of the National Oceanic and Atmospheric Administration;

(2) "Armed Forces" means the Army, Navy, Air Force, Marine Corps, and Coast Guard; and

(3) "Secretary concerned" means

(A) the Secretary of the Army, with respect to retired members of the Army and members of the Army Reserve;

(B) the Secretary of the Navy, with respect to retired members of the Navy and the Marine Corps, members of the Navy and Marine Corps Reserves, and retired members of the Coast Guard and members of the Coast Guard Reserve when the Coast Guard is operating as a service in the Navy;

(C) the Secretary of the Air Force, with respect to retired members of the Air Force and members of the Air Force Reserve;

(D) the Secretary of Transportation, with respect to retired members of the Coast Guard and members of the Coast Guard Reserve when the Coast Guard is not operating as a service in the Navy; (E) the Secretary of Commerce, with respect to retired members of the commissioned corps of the National Oceanic and Atmospheric Administration; and

(F) the Secretary of Health, Education, and Welfare, with respect to retired members of the commissioned Regular Corps of the Public Health Service and members of the commissioned Reserve Corps of the Public Health Service.

91 Stat. 859-860.

The last paragraph of section 9 of article I of the Constitution reads as follows:

8. No title of nobility shall be granted by the United States: and no person holding any office of profit or trust under them, shall, without the consent of the Congress, accept of any present, emolument, office, or title, of any kind whatever, from any King, Prince, or foreign State.

On April 18, 1977, Secretary of State Vance sent a memorandum to the Secretaries of Departments and Heads of Agencies in the U.S. Government entitled "Policies Governing United States Delegations to International Conferences and Meetings." Secretary Vance indicated that the United States would participate in about 1,000 international conferences in 1977 and that "we must make an effort to restrict the size of our delegations." Attached to the April 18 memorandum was a Statement of Policy and Operating Practices prepared by the Office of International Conferences (OIC) in the Bureau of • International Organization Affairs, containing the following definition of international conferences which qualify for International Conferences and Contingencies (ICC) Appropriations:

. . An international conference is a scheduled meeting of representatives of at least three governments who are officially accredited as governmental representatives either to the sponsoring international organization or subsidiary thereof; or to a sponsoring national government; or to an international conference secretariat authorized, inter alia, to organize that particular conference, set its rules of procedure, and accept accreditation of official representatives. If the subject meeting falls within this definition, it is eligible for OIC funding. The name of the meeting, the level of participation, its locale, the type of subject matter are secondary to meeting the requirements of the definition. If the requirements are not met and the United States must send a delegation, that delegation must be supported by an appropriation other than the ICC.

Also attached to the April 18 memorandum was a Statement of Policies Governing United States Delegations to Multilateral International Conferences and Meetings, containing the following guidance concerning official attendance at multilateral international conferences, invitations to organizations to attend such conferences in the United States, and the authority of the Department of State to accredit delegations to international conferences:

No official of this Government should attend a multilateral international conference at which accreditation is required without the prior knowledge and approval of the Office of International Conferences of the Department of State. Any question whether a particular meeting requires accreditation can be answered by that office.

No organization should be invited to meet in the United States without prior aproval of the Office of International Conferences. The authority of the Department of State for accrediting delegations to international conferences and meetings derives from statute and delegation by the President.

Dept. of State File No. P77 0068-79.

Lawmaking Conferences

On September 8, 1977, George H. Aldrich, Deputy Legal Adviser, Department of State, and Chairman of the U.S. Delegation to the Fourth Session of the Geneva Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, submitted to the Secretary of State the report of the U.S. Delegation in which he described how the adoption. of a quasi-consensus procedure requiring a decisive majority of the votes had helped contribute to a successful conference. Portions of the conclusions of the Delegation report follow:

The Conference succeeded beyond our expectations in codifying and developing the law applicable in armed conflict.

(a) Procedure

We agreed in Istanbul in 1969 to the ICRC [International Committee of the Red Cross] effort that laid the foundation for this Conference, but we did so with considerable misgivings. As a country that relies for its military effectiveness more on technology, modern equipment, and firepower than on massed manpower, the United States had to approach this Conference with caution and concern. Moreover, we had seen in other contexts the risk that conferences of one hundred or more countries would be dominated by a majority of developing countries, a majority which all too often seems to be led by radical states bearing grudges against the wealthy countries in general and against the United States in particular. . . .

Consistent with these concerns, we approached the Conference as more of a hazard than an opportunity. Thus, we were able to make clear from the outset that we were not prepared to pay a high price in terms of military effectiveness or political barnacles in order to obtain treaty provisions that we desired. Although there were, indeed, provisions we desired, such as a better protecting power system, specific requirements to account for missing in action and the dead, and a clear statement that prisoners could not be denied pro

tection through allegations that they were fighting an aggressive war, we were never prepared to pay an unreasonable price for such provisions. We made this unwillingness clear from the outset, and we worked assiduously with allied delegations and with the Soviet Union to ensure that the other major military powers had similar approaches. Thus, it became clear that if it were to develop Protocols acceptable to the major powers, the Conference would have to work by a modified form of consensus.

The developing countries, although they had, as always, a deci sive majority of the votes, accepted the quasi-consensus procedure. Perhaps this reflected in part the fact that the Conference did not deal with economic issues on which "North-South" differences are sharpest, but it seemed also to reflect general acceptance of the fact that an agreement unacceptable to the major powers was not worth having. The United States Delegation concludes from this experience that it is most important for us in any broad multilateral conferences of the future to be in such a posture that we can get along without an agreement, to make this relative independence clear and credible, and to work closely with the other developed countries to ensure a coherent approach.

It should also be noted that a complementary, and perhaps vital, element of our success was our constant concern to identify and meet, insofar as possible, the real needs of the other Conference participants. Given sufficient time and effort, it was usually possible to arrive at a solution to any particular problem that met at least the minimum requirements of virtually all delegations. Our efforts to find these solutions and make the necessary accommodations may have contributed significantly to the necessary attitude of compromise which was indispensable to success. This attitude certainly was not present during the first session of the Conference and developed only slowly during the second, after the contentious political issues had been dealt with. Ultimately it reached the point where the Africans, for example, were looking to us to draft an acceptable text on mercenaries, and the Vietnamese and the PLO delegates were working helpfully with the American rapporteur of Committee III to produce a text on the protection of guerrillas, because they knew that we would do our best to find an acceptable compromise that reconciled to the extent possible the divergent interests. It is questionable whether the Conference could have succeeded if these attitudes had not developed.

Report of the U.S. Delegation to the Conference, Sept. 8, 1977, pp. 28-30.

For further information concerning the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, see the 1974 Digest, Ch. 4, § 5, pp. 188-189, and Ch. 14, § 2, pp. 701-702; the 1976 Digest, Ch. 4, § 3, p. 235, and Ch. 14, § 2 pp. 687-700. Also see post, Ch. 14, § 2, pp. 917-920.