compel" the movement of property owned by persons subject to United States jurisdiction in which there is a foreign interest. See page 3 above.

In conclusion, then, I am confident that establishment of the Foreign Direct Investment Program is a valid exercise of the authority conferred on the President by section 5(b).

Sincerely,

RAMSEY CLARK.

EXEMPTION OF RESIDENT ALIENS FROM MILITARY SERVICE PURSUANT TO TREATIES-BAR TO ELIGIBILITY FOR CITIZENSHIP

The United States must honor certain treaties which include provisions creating an obligation of the United States to exempt foreign nationals residing here from military service.

Certain language written into the selective service law in 1951

(June 19, 1951, c. 144, 65 Stat. 75, 83), does not prohibit the exemption under such treaties of aliens admitted for permanent residence.

An alien who applies for and is granted such exemption will be subject to the bar against eligibility for citizenship imposed by section 315 of the Immigration and Nationality Act (June 27, 1952, c. 477, 66 Stat. 163, 242; 8 U.S.C. 1426).

THE SECRETARY OF STATE.

APRIL 1, 1968.

MY DEAR MR. SECRETARY: This is in response to Acting Secretary Nicholas deB. Katzenbach's letter of December 14, 1967, requesting my opinion as to whether the United States is in a position to honor certain treaties which include provisions creating an obligation of the United States to exempt foreign nationals residing here from military service. The question is whether language written into the selective service law in 1951 (June 19, 1951, c. 144, 65 Stat. 75) prohibits exemption under the treaties of aliens admitted for permanent residence. For the reasons stated below, I am of the opinion that the treaties must be honored.

It is my understanding that the United States is a party to sixteen such treaties. These are principally Treaties of Friendship, Commerce and Navigation, which contain important guarantees relating to commercial activity. Some of the treaties make provision for the reciprocal exemption of

resident aliens from military service directly;1 others provide for the wartime conscription of nationals of one country who reside in the other country and who have declared their intention to become its nationals. According to the Acting Secretary's letter, the latter group of treaties has been construed as granting reciprocal exemption from military service except after a declaration of war.

Five of these treaties were concluded during the nineteenth century. Of the remainder, all except those with China, Ireland and Italy came into force prior to the Second World War. No treaty granting such exemption from military service has been concluded since 1950. It is indicated that the Department of State does not intend to include such provisions in future treaties.

In considering the question presented, I have examined a memorandum of your Legal Adviser which supports the position that the treaties are still effective and a memorandum of the Director of Selective Service which expresses a contrary view. At the outset, it will be useful to review the recent development of the law as it applies to resident aliens claiming exemption under the treaties.

I

The Selective Service Act of 1948, section 4(a) (June 24, 1948, c. 625, 62 Stat. 604, 605-606), rendered liable for service resident aliens who were not otherwise exempt. Any such alien could obtain exemption from service upon application,

1 E.g., Convention of Friendship, Reciprocal Establishments, Commerce, etc. with Swiss Confederation, November 25, 1850, effective November 9, 1855, 11 Stat. 587, 589, art II:

"The citizens of one of the two countries, residing or established in the other, shall be free from personal military service; but they shall be liable to the pecuniary or material contributions which may be required, by way of compensation, from citizens of the country where they reside, who are exempt from the said service."

Similar provisions are found in treaties with Argentina, China, Costa Rica, Ireland, Italy, Paraguay, Spain, Thailand and Yugoslavia.

2 E.g., Treaty of Friendship, Commerce and Consular Rights with Austria, June 19, 1928, effective May 28, 1931, 47 Stat. 1876, 1880, art. VI:

"In the event of war between either High Contracting Party and a third State, such Party may draft for compulsory military service nationals of the other having a permanent residence within its territories and who have formally, according to its laws, declared an intention to adopt its nationality by naturalization, unless such individuals depart from the territories of said belligerent Party within sixty days after a declaration of war."

Similar provisions are found in treaties with Estonia, Honduras, Latvia, Liberia and Norway.

but applying for exemption barred the alien from eligibility for United States citizenship.

Treaty aliens received somewhat different treatment. A resident treaty alien who had not made a declaration of intention to become an American citizen could be exempted from service without personally filing an application for relief, and could thus receive an exemption without being barred from citizenship under section 4(a). It appears to have been assumed at that time that the source of this treatment was section 6(a) of the act, which authorized the President to exempt from registration and military service, or from service alone, categories specified by him of resident aliens who had not declared their intention to become citizens of the United States.

In 1951 Congress amended the Selective Service Act so that section 4(a) no longer provided a procedure for the exemption of resident aliens. Section 6(a) continued to provide that the President could specify categories of noncitizens to be relieved from registration and service, but an amendment added the qualification "that aliens admitted for permanent residence in the United States shall not be so exempted." (65 Stat. 75, 83)

The legislative history of the amendments shows that at no point did Congress discuss the effect of the amendments on the treaties; in fact, it did not mention the treaties at all.*

In this procedure the treaty country submitted the request for exemption to the Department of State for approval. E.O. 9992, August 28, 1948, sec. 622.18(b), 13 F.R. 5033, 5035; 1 Gordon & Rosenfield, Immigration Law and Procedure, sec. 2.49a (1967 ed.).

A summary in the House Committee Report of the pre-1951 law as it applied to aliens omits mention of the treaties. H. Rept. 271, 82d Cong., 1st sess., 17 (1951). The Conference Report states a general intent to treat resident aliens in the same way as citizens, but makes no reference to the treaties. H. Rept. 535, 82d Cong., 1st sess., 19 (1951).

It has been suggested that the amendment to section 6 (a) was designed to eliminate the exemption for treaty aliens since they were the only category that had been specified by the President which included resident aliens. However, other categories which included resident aliens had been exempted under section 6(a) in the 1948 regulations. Thus, the exemptions for certain employees of foreign governments and of international organizations, and for members of their families, were available to resident aliens who had not declared an intention to become citizens. Following the 1951 amendment of the act, the regulations were amended to limit these exemptions to aliens who had not been admitted to the United States for permanent residence. Compare E.O. 9992, sec. 611.11(a), 13 F.R. 5033 (1948), with E.O. 10292, sec. 1611.2(b), 16 F.R. 9843, 9846.

Contemporaneous consideration of the effect of these amendments was given by the Executive promptly thereafter, in the form of an Executive order amending the Selective Service Regulations, which provided for the exemption of all treaty aliens. E.O. 10292, September 25, 1951, sec. 1622.42 (c), 16 F.R. 9843, 9852. Exemption was still permitted under the treaties without the filing by the alien of the application required of other classes of aliens under section 4(a), so that treaty aliens could avoid debarment from eligibility for citizenship. In re Naturalization of Healy, 183 F. Supp. 651, 652 (N.D. Calif. 1960).

The Immigration and Nationality Act of 1952 (June 27, 1952, c. 477, sec. 315, 66 Stat. 163, 242; 8 U.S.C. 1426) made any alien who applied for and received exemption from military service permanently ineligible for citizenship.5 In April 1953, the Selective Service System issued instructions that thereafter every alien desiring exemption under a treaty was required to file an application for relief and to acknowledge that he would thus be barred from eligibility for citizenship under the 1952 act."

In 1954 and 1955, in a number of immigration and naturalization cases, as well as criminal cases under the draft law, the Department of Justice took the position that after 1951 the exemption for resident treaty aliens was no longer authorized. In some of these cases, decided in 1954, the courts accepted this position. In 1955 a different court took the view that a basis for exemption under the treaties could be found in the selective service law. Nevertheless, in response to

546# # * any alien who applies or has applied for exemption or discharge from training or service *** on the ground that he is an alien, and is or was relieved or discharged from such training or service on such ground, shall be permanently ineligible to become a citizen of the United States."

In re Naturalization of Healy, supra, 183 F. Supp. at 652; 1 Gordon & Rosenfield, Immigration Law and Procedure, sec. 2.49a (1967 ed.).

7 In the immigration and naturalization cases, resident aliens who had received exemptions from military service sought to avoid the consequences of the exemption-ineligibility for citizenship and exclusion from the United States (8 U.S.C. 1182 (a) (22), 1426)-by claiming that the exemptions were void since there had been no legal basis for granting them after 1951. The Government conceded that the exemption was not authorized but argued successfully that the de facto granting of relief acted as a bar under section 315 of the Immigration and Nationality Act. See note 5, supra.

8 United States v. Rumsa, 212 F. 2d 927 (C.A. 7, 1954), cert. denied, 348 U.S. 838 (1954); United States v. Gredzens, 125 F. Supp. 867 (D. Minn. 1954); United States ex rel. Rosio v. Shaugnessy, 134 F. Supp. 217 (S.D.N.Y. 1954). Schenkel v. Landon, 133 F. Supp. 305 (D. Mass. 1955).