1619. Application Of Definitional Provisions To Officials Of The Coordination Council For North American Affairs -- Taiwan

1. Status As a Foreign Official

   In view of the diplomatic posture between the United States and Taiwan, there is a question whether officials of its Coordination Council for North American Affairs (CCNAA) are protected under 18 U.S.C. § 1116 and other statutes that rely upon its definitional provisions. In the opinion of the Criminal Division, CCNAA officials fall within the definition of the term "foreign official" as used in 18 U.S.C. § 1116(b)(3)(B), by virtue of the Taiwan Relations Act, 22 U.S.C. §§ 3301 et seq., and Executive Order 12143 at § 1-204, 44 Fed.Reg. 37191. Thus the following sections of Title 18 prohibit offenses against CCNAA officials: 18 U.S.C. § 112 (assault), 18 U.S.C. § 878 (threat), 18 U.S.C. § 970 (destruction of property), 18 U.S.C. § 1201 (kidnapping), 18 U.S.C. § 1116 (murder), and 18 U.S.C. § 1117 (conspiracy to murder).

2. Proving Notification

   Proving that the CCNAA is "duly notified . . . as officer or employee of a foreign government" requires resort to the Taiwan Relations Act. Thus officers and employees of the CCNAA should be treated as officers and employees of a "foreign government" for the purposes of 18 U.S.C. § 1116(b)(3)(B). Cf., United States v. Irick, 497 F.2d 1369 (5th Cir. 1974), cert. denied, 420 U.S. 945 (1975); United States v. Lopez, 586 F.2d 978 (2d Cir. 1978), cert. denied, 440 U.S. 923 (1979).

   The notification procedure for CCNAA officials is not the same as the procedure for accreditation. Cf., United States v. Dizdar, 581 F.2d 1031, 1033-34 (2d Cir. 1978). Thus, whether CCNAA officials are "duly notified" calls for the judgment of the Chief of Protocol in the Department of State, who is prepared to certify that such persons are "duly notified" within the meaning of 18 U.S.C. § 1116(b)(3)(B), 22 C.F.R. § 2.3(b).

3. Indictments and Pleadings

   The Department of State believes that indictments and pleadings which are not precisely drawn to reflect the unofficial nature or relations with Taiwan may have an adverse impact on foreign affairs. The Department of Justice is prepared to accommodate the concerns of the Department of State unless a prosecution would be jeopardized. Consequently, all matters involving offenses against CCNAA officials should, absent emergency circumstances, be brought to the attention of the Criminal Division prior to Federal arrest and should in all cases be brought to the attention of the Criminal Division prior to indictment. The Criminal Division recommends that indictments describe, in part, the offense in the following manner: "X did willfully and unlawfully (assault, threaten, etc.) Y, who is a "foreign official' within the meaning of § 1116 of Title 18, United States Code, by operation of the Taiwan Relations Act." Any difficulties which are anticipated as a result of this language should be brought to the attention of the Criminal Division prior to indictment.

[cited in JM 9-65.800]