Legal Commentary

Executive Order 12425 and the Legal Status of INTERPOL

By Orin Kerr

I?ve received a lot of e-mails in the last week about an Executive Order that President Obama signed recently concerning the legal status of INTERPOL, an international law enforcement group. The order states the following:

By the authority vested in me as President by the Constitution and the laws of the United States of America, including section 1 of the International Organizations Immunities Act (22 U.S.C. 288), and in order to extend the appropriate privileges, exemptions, and immunities to the International Criminal Police Organization (INTERPOL), it is hereby ordered that Executive Order 12425 of June 16, 1983, as amended, is further amended by deleting from the first sentence the words ?except those provided by Section 2(c), Section 3, Section 4, Section 5, and Section 6 of that Act? and the semicolon that immediately precedes them.

The conservative blogosphere has been in a bit of a tizzy about this executive order in the last week. As far as I know, the hubbub started here and has been racing around the conservative blogosphere since then. The controversy arises because Section 2(c) of the International Organizations Immunities Act includes a statement that the ?property? of covered organizations ?shall be immune from search.? The thinking is that by making INTERPOL property ?immune from search,? the U.S. Government is giving up U.S. sovereignty, taking a step towards a new international world order, repealing the Fourth Amendment, and the like.

A bunch of people have asked me for my reaction to this story over the last week, and I?ve told them that I have?t blogged on it because I had a vague reaction to it but nothing particularly certain. I am not an expert on INTERPOL, and I hadn?t even heard of the International Organizations Immunities Act until last week. But the e-mails keep coming, and on the theory that some readers might be interested in my vague reaction nonetheless, here?s my tentative take: I have a somewhat hard time seeing what the genuine issues are with Obama?s Executive order.

I recognize that the idea of a Democratic President yielding U.S. sovereignty to an international organization even 1 millimeter is enough to set a lot of people off: This stuff is catnip to some on the right. But I don?t even know if INTERPOL even has any property in the United States to search ? and if they have no property to search, I don?t know why it matters whether there is immunity over the search of nonexistent property. The only INTERPOL office in the U.S. that I know of is the one in the DOJ run byDOJ?s Interpol-U.S. National Central Bureau. That office helps U.S. law enforcement get records from abroad and that sort of stuff. But I don?t even know if that office counts as INTERPOL?s ?property.? Even if that space counts as INTERPOL property, I?m not sure why it matters if the U.S. Government can execute a law enforcement search of that one office in DOJ. The purpose of INTERPOL is to share data among governments, so I don?t know if the U.S. would need to execute a ?search? to get that data. For that matter, I?m not entirely sure what it means to say that INTERPOL property is ?immune from search.? That phrase hasn?t been interpreted by any courts that I?m aware of; I?m not sure if it has its Fourth Amendment meaning or some other specialized meaning.

A lot of the blogging objections I have seen to the Executive Order claim that this is a symbolic step towards U.S. membership in the International Criminal Court. But I guess I find an unadvertised executive order that no one knows about (at least until bloggers started pointing it out) that can be tied to the ICC only at a relatively abstract level a rather unthreatening step. Maybe there is more coming, in which case we can look at that when it comes. But in itself, I?m not entirely sure what the fuss is about.

With that said, if there are some experts out there who know a lot about the International Organizations Immunities Act, please do offer your thoughts. I?d be delighted to post a correction if I?m all wrong about this.

Full post as published by The Volokh Conspiracy on December 30, 2009 (boomark / email).