The Attorney General (Clark) to the Secretary of State

My Dear Mr. Secretary: This is in response to Mr. Grew’s letter of July 2, 1945, concerning the proposed draft of a bill entitled “To extend certain privileges, exemptions, and immunities to international organizations and to the officers and employees thereof, and for other purposes.”

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[Here follows statement of substance of the bill.]

On December 12, 1944, Attorney General Biddle wrote to the Director of the Bureau of the Budget with reference to a somewhat similar proposal to extend certain privileges to the United Nations Relief and Rehabilitation Administration and its staff. In his letter Mr. Biddle said in part:

“The Federal Bureau of Investigation has evidence indicating that in the past the diplomatic representatives of some foreign governments have abused the privilege of diplomatic immunity. In some instances the abuses have been harmless. In other instances, however, diplomatic representatives have distributed propaganda against the established governments of friendly nations to which they were accredited, and in a few cases they have even engaged in espionage activities. This Department, therefore, views with misgiving any extension of the privilege of diplomatic immunity to persons not in the diplomatic or consular service of friendly governments. Nevertheless, I recognize that the question whether diplomatic immunity should be given to officials and employees of the United Nations Relief and Rehabilitation Administration is primarily a question of policy for the State department. On the assumption that the proposed legislation is sponsored by the State Department, I interpose no objection.”

The proposed legislation under consideration would, of course, have a much broader scope than the bill to which Mr. Biddle referred. It would apply to a large number of international organizations having functions in many instances of a nature substantially different from those of the United Nations Relief and Rehabilitation Administration. It seems to me, therefore, that the difficulties discussed in Mr. Biddle’s letter would be applicable to the proposed bill to an even greater extent. If the practices referred to are possible under the strict application of formal diplomatic protocol it is reasonable to be apprehensive of what might occur if diplomatic immunities were extended to persons who would not ordinarily have the professional training found in the diplomatic corps. Accordingly, I am reluctant to recommend the enactment of the bill. However, if the State Department offers the proposed bill to the Congress and recommends it as an useful aid to the foreign policy of the United States, I assure you that the Department of Justice will not oppose the legislation.

If the bill is to be favorably considered, I should like to make the following suggestions:

Section 7 of the bill includes not merely the representatives of the foreign governments in or to international organizations but also “officers and employees of such organizations, and members of the immediate families of such representatives, officers, and employees residing with them.” It is conceivable that an international organization might bring into the United States a very large number of employees from abroad together with the members of their families. [Page 1564] This provision of the bill is broader than the provisions of existing law respecting foreign government officials (Section 3, Immigration Act of 1924, as amended, 53 Stat. 711, 8 U.S.C. 203; Section 3, Act of February 5, 1917, as amended, 39 Stat. 875, 878, 8 U.S.C. 136). The effect of this section would be to exempt all of the persons covered by it from the requirements of the immigration laws, including medical examination. In my view, it would be adequate for the purposes of the proposed legislation to word the provision of Section 7 in keeping with the language of the references cited above. You may also wish to consider whether subordinate employees should be included in the exemptions at all.

Section 8(b) provides that if the Secretary of State determines the continued residence in the United States of any person admitted under the benefits of the Act to be undesirable, then after appropriate notice to the interested government and opportunity for the individual to depart, such person shall cease to be entitled to the benefits of the Act. This section does not make clear how the departure of such an individual may be enforced if the determination of the Secretary of State is not voluntarily met. In this connection I invite your attention to existing law with reference to representatives of foreign governments and related persons (8 U.S.C. 203, 214, 215). Such persons who fail to maintain their status in the United States must depart. If they do not depart, they become subject to deportation, except that a foreign official or member of his family shall not be required to depart without the approval of the Secretary of State. It may be well to make equally definite the authority and procedure in the proposed legislation for enforcing the departure of those who would be permitted to enter the country under the bill.

Section 9 provides that the privileges, exemptions and immunities provided for in the bill “shall be granted notwithstanding the fact that the similar privileges, exemptions, and immunities granted to a foreign government, its officers, or employees may be conditioned upon the existence of reciprocity by that foreign government.” In this connection, the British statute on the subject seems worthy of note. That statute provides:

“Nothing in the foregoing provisions of this Act shall be construed as precluding His Majesty from declining to accord immunities or privileges to, or from withdrawing immunities or privileges from, nationals or representatives of any Power on the ground that that Power is failing to accord corresponding immunities or privileges to British nationals or representatives.”19

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I suggest that consideration be given to a similar provision in this bill.

The problem of the selection of the organizations to be covered by the bill appears to me to be closely related to the matter of sanctions to be applied in enforcing its provisions. It would appear to be desirable to have the penalties run against the organization itself as well as against individual staff members. I suggest therefore that the bill be amended so as to provide that the President would have power to specify the organizations to which the Act shall apply through the issuance of appropriate executive orders. The President should also be empowered to remove organizations from the approved list in the same manner. This would insure that all interested government agencies would receive advance notice and that the public generally would obtain official notice through publication in the Federal Register. Such a plan would tend to make the international organizations maintain close control over their members so as to avoid removal from the list. The organizations themselves would thus share in the task of bringing about full compliance with the statute.

Sincerely yours,

Tom C. Clark
  1. Public General Acts. 7 & 8 George VI, ch. 44, pp. 405–406.