The court further suggests that the problem is simply that “State Department personnel did not follow their customary paperwork procedures for designating Lal as an official guest the court’ use of the word “customary” is misleading. That the State Department did not follow procedures for designating an official guest is true ‘enough. That the procedures involve paperwork is also true, but that there was some customary tradition is utterly false and un supported. The very paucity of designations in a country’s that receives thousands of dignitaries each year, and routinely protects many proves there was no such custom. Thus is the assertion false. It is misleading to all who read it because it implies a bureaucratic oversight exceptional to a well-established routine. The record facts demonstrate, however, no such routine, but rather a State Department which simply did not regularly invoke the official guest status, and did not invoke it here, As the person responsible for such designations testified, there “had been very few” designations of individuals such as Lal (as opposed to athletic and cultural groups) and none in 1985. He elaborated:

  1. .(Y) you sever initiated any Request to the Chief of Protocol that Bhajan Lal be designated an

Official guest of the United States?

  1. That’s right.
  2. So the fact of the matter is that very few individuals are ever designated as official guests, is that correct?
  3. When the law was new and young and persons were more conscious of its existence we were receiving a great number of requests to designate persons as official guests.
  4. Let me say within the last couple of years, very few persons are designated as official guests, is that right?
  5. It has tapered off considerably. And I would like to say that I believe that has come about as a result of misuse or lack of use on the part of the offices in the department where we have a tremendous change over with people coming and taking new assignments or going overseas or being posted elsewhere so that they have not become on top of or as cognizant of this possibility of recommending someone for official foreign guest status.
  6. In the year 1985 no one, no one individual was designated as an official guest is that correct?
  7. That’s correct.

To talk of “customary paperwork procedures” on that record is a judicial misrepresentation. The truth unrevealed by the opinion is that the State Department did not invoke the Statue “customarily “at all and therefore did not invoke it for Lal

The panel’s factual gerrymander achieves the government’s goal; the patching up of the government’s failures and the cover up of the government’s incompetence. But it is hardly the proper role of a court to abet the executive’s inadvertent failings through a purposeful abdication of its responsibility to the law.

Dishonesty to Logic and the Law

Faced with a record that was unequivocal in declaring that lal had not been designated an official guest, the panel broke the limits of law and logic to conjure up a designation from the circumstances that Lal was the subject of federal interest and concern. The court belabored the concern of a few federal functionaries, but nowhere did it demonstrate what ‘connection there is between federal concern about a visitor and that visitor’s status as an “official guest” pursuant to Act of Congress. Benath the court’s facile conclusion lays a faulty syllogism: because Lal was a visitor to the United States he was a “guest” and because the State Department watched over him he was treated as an “official”; therefore, Bhajan Lal must have been “official guest”. If the court’s reasoning has some initial allure, viewed in the bright light of Congress’ specific command, that allure soon disappears.

There is simply no necessary connection between “official guest” status and federal protective action. The two stem from separate statutes and each may exist without the other. Nothing suggests that an “official guest” automatically gets two bodyguards and an Uzi; all he gets is the assurance that those who attack him can be prosecuted in federal court conversely every visiting dignitary. be he Bhajan Lal. Boy George. or a Beatle, does not become an “official guest of the Government of the United States designated as such simply because the State Department asks the local police to look after him and afier the fact dispatches an Uzi or two there is no connection. The record demonstrates none. The panel simply i vented one to rescue the government from its own embarrassment.

‘The court’s illogic that any foreign national in whom the State Department takes an interest ipso facto becomes an official guest would destroy the statute. It is utter nonsense legally, logically and logistically. There may be safety concerns for any number of visitors to the United States from Israeli rabbis to PLO leaders to ‘ordinary Danish schoolteachers. And if the State Department is informed of those concerns it would be remiss if it did not express some interest in protecting the visitors. The mere happenstance of the State Department’s interest however, does not transmute these individuals into “official guest(s) of the Government of the United States pursuant to designation as such”.

There isn’t a scintilla of law or evidence that Congress intended that official guest status be so blithely or universally bestowed. To the contrary in testimony that the government cited in its own brief, a cosponsor of g1116 emphasized that official guest status was something quite out of the ordinary.

I believe that we should make it clear that the designation is to be used sparingly and only in those cases in which a nonofficial is in this Nation on special business; such as the Olympics, and not simply as a tourist or businessman — statement of Sen. Hruska.

To ensure that this privilege would be “sparingly” granted, Congress decided that official guest status should only be conferred to guests of the Government, specifically designated as such and only when done so by the Secretary of State. Congress’ words are capable of only one interpretation, and as a matter of statutory construction, should be regarded as conclusive. United States Vs Turkette Congress expressly required a “designation as such” not “protection as if”, and expressly gave the power of designation to the Secretary of State not to the amorphous “State Department”. The court is dishonest to the mandate of Congress when it frames the issue as “whether the Secretary of State, through the State Department’s

 actions, ‘designated’ Lal an official guest within the meaning of B1116” There is no statutory or regulatory provision’ that allows minor lower level functionaries willy hilly to confer official guest status on anyone Either by word ‘or action, Congress spoke deliberately and concisely on this issue leaving no room for the court’s disobedience to its command.

In the misguided effort to transform the sow’s ear of executive incompetence into the silk purse of designation, the court turned the inapposite case of United States vs. Caceres, on its head. Caceres merely stands for the notion that when neither federal law nor the Constitution mandate certain procedures. a court need not enforce those procedures. Reaching for legal authority, the court chose to ignore the fact that the procedure at issue here for designating official ‘guests is mandated by federal statute. If the Caceres doctrine reaches this case, it would also reach the case of a rookie police officer ‘who searches a private individual’s home without a warrant and seeks to excuse his illegal conduct by claiming that he could have gotten a search warrant and would have gotten one, but he didn’t know he needed one. That is the essence of the court’s application of Caceres to this case.

It may be that Bhajan Lal was a good candidate for official guest designation. It may be that the Chief of Protocol would have approved a request that he be designated as such, But the immutable facts remain: no one requested official guest designation for Lal; no one conferred it; no one thought of it; and no “customary” Procedure afforded it. What the executive failed to do before the fact, the judiciary cannot do after.

CONCLUSION:

It is a court’s sworn obligation to remain unsawed by political Winds and to do justice by following the law. The panel opinion dishonors that obligation by abetting the government in a strained attempt to save face and cover an embarrassing blunder of international proportions. Its betrayal of the facts and the law should not stand as the statement of the Fifth Circuit Court of Appeals.

QUOTES:

  1. Bolt, A Man for All Seasons, Act I, pp 3839 (Vintage, 1962).
  2. Under the same statue it is also a federal crime to kill an “internationally protected person” or a “Foreign official.” All three categories have particular statutory definitions.
  3. Betraying a weak and uncertain ‘case, the government had initially charged the defendants with Killing an “internationally protected person”. Recognizing that claims was hopeless, the government filed the superseding indictment at issue here which added the further allegation that Bhajan Lal was also an “official guest” and “foreign official”. The district court held that Bhajan Lal qualified for none of, the three categories.
  4. The government conceded that Lal was not an “internationally protected person” and the panel did not reach the issue of ‘foreign official”.
  5. The Secretary of State may promulgate such rules and regulations as may be necessary to carry ‘out the function’s now or here after vested in the Secretary of State or the Department of State, and he ‘may delegate authority to perform any of suck functions, including if he shall so specify the authority successively to redelegate any of such functions, to officers and employees under his direction and supervision.

Article extracted from this publication >> October 24, 1986