JAMES A. BAKER, III, SECRETARY OF STATE, ET AL. V. GOVERNMENT OF
PRIME MINISTER MICHEL AOUN, PRESIDENT-IN-INTERIM OF THE REPUBLIC OF
LEBANON, ET AL.

   No. A-549

   In The Supreme Court Of The United States

   October Term, 1989

   Emergency Application For A Stay Pending Certiorari To The United
States Court Of Appeals For The District Of Columbia Circuit

   Pursuant to Rule 23 of the Rules of this Court and the All Writs
Act, the Solicitor General, on behalf of the Secretary of State, the
Secretary of the Treasury, and the Director of the Secret Service,
respectfully applies for a stay of the order of the United States
District Court for the District of Columbia pending certiorari to
review the judgment of the United States Court of Appeals for the
District of Columbia Circuit in this case.  The district court's order
is utterly without legal support and intrudes into the core powers of
the President to receive Ambassadors, recognize foreign governments,
and conduct foreign relations.  As explained in the declarations of
the Secretary of State (Apps. D & H, infra), there is a critical need
for immediate relief, because the district court's order is causing
increasingly serious adverse consequences for the Nation's foreign
relations.  /1/

   The issue in this case is whether the Embassy of the Republic of
Lebanon in Washington, D.C., will be made exclusively available to the
representative of the Government of Lebanon that is recognized by the
United States, rather than to the representative of a rival faction in
that country.  The United States recognizes the Government of Elias
Hrawi as the legitimate Government of Lebanon.  The putative plaintiff
in this case, the "Government of Prime Minister Michel Aoun," is a
rival claimant to that status.  This purported "government" of General
Aoun is not recognized by the United States.  The former Ambassador of
Lebanon (plaintiff Abdallah Bouhabib) has been discharged by the
recognized (Hrwai) Government of Lebanon and has been ordered by that
Government to vacate its Embassy.  He has refused to do so,
maintaining that he now represents the "Aoun Government," which he
claims to be the legitimate government of Lebanon, and that the
Embassy premises belong to that government.

   On January 24, 1990, the recognized Government of Lebanon formally
made a request of the United States for assistance in removing
Bouhabib from the Embassy and making the Embassy exclusively available
to the recognized representative of that Government.  The United
States considers itself to be obligated to render that assistance
immediately under the Vienna Convention on Diplomatic Relations, 23
U.S.T. 3227 (App. I, infra), to which both the United States and the
Republic of Lebanon are parties.

   This action was brought by the purported "Aoun Government" and by
Bouhabib, both in his "individual capacity" /2/ and as "Ambassador"
and representative of the "Aoun Government," to prevent the
petitioners, on behalf of the President of the United States, from
taking any steps to remove Bouhabib from the Embassy.  On Friday,
January 26, 1990, the district court took the extraordinary step of
entering an order (App. B, infra) barring the Secretary of State, the
Secretary of the Treasury, and the Director of the Secret Service from
taking any steps to alter the status quo with respect to the
possession and current occupants of the Embassy premises or to exclude
or eject respondents from the premises.

   On the morning of Monday, January 29, 1990, petitioners applied for
emergency relief in the court of appeals, seeking summary reversal of
the district court's order or, in the alternative, a writ of mandamus.
 That application was supported by the declaration of the Secretary of
State (App. D, infra) representing that any further continuance of the
district court's order would strain relations with the Hwari
Government, undermine that Government's efforts to consolidate its
authority in Lebanon, and "threaten() fundamental United States
interests" (id. at 6) by undermining the United States' legal position
abroad that the Vienna Convention obligates a host government to
render immediate assistance to a foreign government whose embassy
premises are threatened or occupied by others.  Nonetheless, on
January 30, 1990, a divided panel of the court of appeals denied
petitioners' application for emergency relief, holding that the
circumstances were not sufficiently compelling to render the
restraining order appealable or to warrant mandamus relief.  App. A,
infra.

   Because the district court's order impermissibly intrudes the
courts into matters that are committed by the Constitution to the
President, prevents the United States from fulfilling its duty under
the Vienna Convention, and is causing increasingly adverse
consequences for the foreign relations of the United States for each
day and hour that it remains in effect, we request an immediate stay
of the district court's order.  If the stay is granted, petitioners
are prepared to remove respondent Bouhabib from the Embassy premises
forthwith, if he does not voluntarily vacate the premises.

                               STATEMENT

   1. The United States recognizes the government of President Elias
Hrawi as the legitimate Government of the Republic of Lebanon.  /3/
This is an action brought by a rival claimant to that status -- the
purported "Government of Prime Minister Michel Aoun" -- and the former
Lebanese Ambassador, Abdallah Bouhabib, who claims to be the
diplomatic representative of that "government." They seek to enjoin
the Secretary of State, the Secretary of the Treasury, and the
Director of the Secret Service from interfering with their continued
use and possession of the premises of the Embassy of Lebanon in
Washington, D.C., which consist of the chancery and Ambassador's
residence at 2560 28th St., N.W., and 2841 McGill Terrace, N.W.  /4/

   The United States does not recognize the "Government of Prime
Minister Michel Aoun";  indeed, the United States has never recognized
such a government.  Kelly Decl., App. E, infra, at 2.  On December 11,
1989, the recognized Government of Lebanon, that of President Hrawi,
formally notified the Department of State that it had terminated
Bouhabib's appointment as Ambassador, effective December 7, 1989.
Consequently, the United States ceased to recognize Bouhabib as the
Ambassador of Lebanon to the United States.  The Government of Lebanon
further informed the Department of State that it had agreed to allow
Bouhabib to remain at the chancery and residence until December 20,
1989.  Notwithstanding his termination, Bouhabib has continued to
claim that he is the Ambassador of Lebanon -- representing the "Aoun
Government," which he claims is the legitimate government of Lebanon
-- and has refused to vacate the Embassy premises.  Kelly Decl., App.
E, infra, at 3;  Bouhabib Decl., at 1, 2-3 (attached to Plaintiffs'
Motion for a Temporary Restraining Order).

   On January 24, 1990, the recognized Government of Lebanon formally
requested the assistance of the United States in removing Bouhabib
from the premises of the Embassy.  The Government of Lebanon also
formally notified the Department of State that it had appointed Bassam
Naamani as acting chief of mission, pending the arrival of a new
Ambassador.  On January 24, 1990, Mr. Naamani reiterated the Lebanese
Government's request for the assistance of the United States in
removing Bouhabib from the premises of the Lebanese diplomatic
mission.  Kelly Decl., App. E, infra, at 3.

   2. Respondents, the purported "Government of Prime Minister Michel
Aoun, President-In-Interim of Lebanon," and Bouhabib filed this action
on January 23, 1990 to enjoin petitioners from removing Bouhabib from
the Embassy.  Respondents alleged that Bouhabib could not be removed
because:  (1) the mission premises are inviolable under the Vienna
Convention;  (2) the "dispute" over entitlement to the mission
premises was subject to compulsory jurisdiction in the International
Court of Justice under an optional protocol to the Vienna Convention;
and (3) Bouhabib's removal would violate respondents' asserted right
under the Due Process Clause of the Fifth Amendment to notice and an
opportunity to be heard before they were deprived of the use of the
premises.  /5/

   At the conclusion of a hearing on January 26, 1990, the district
court (per Judge Harold Greene) entered an order, to extend for ten
days, enjoining petitioners from acting on the request of the
recognized Government of Lebanon to remove Bouhabib from the mission
premises.  App. B, infra.  The apparent basis for that order is
revealed in the transcript of the hearing at which the district court
announced its ruling.  App. C, infra.  There, the district court
acknowledged that "the Executive Branch has exclusive authority to
recognize or not to recognize a foreign government";  that such a
determination "is binding on the courts";  that "an executive
determination that a regime is not recognized is also binding on the
courts";  that "(t)he United States has recognized the Hrawi
Government and not the Aoun Government";  and that the court "has no
authority to change that determination." App. C, infra, at 2.  The
court also was of the view that respondents have no rights under the
optional protocol to the Vienna Convention, because Lebanon did not
appear to be a party to that protocol /6/ and because there is no
dispute between the recognized Government of Lebanon and the United
States that would vest the Court of International Justice with
jurisdiction.  App. C, infra, at 2.  The district court therefore
concluded that respondents' likelihood of success in the "long run"
was "not great." Id. at 3-4.  /7/ But it found force to the argument
that respondents were entitled to notice and an opportunity to be
heard before they were removed from the Embassy premises.  Id. at 3-4.
 The court also rejected petitioners' objections to its exercise of
jurisdiction over a diplomatic matter committed to the Executive
Branch, observing that this is a dispute over "property" that "the
courts are certainly equipped to handle." Id. at 4.

   The court believed that the balance of the equities favored the
granting of temporary relief, because, in its view, "there could be no
serious injury to the United States if (Bouhabib) continues to remain
in possession" for ten days while the restraining order remains in
effect, the "public interest" would be injured if respondents did not
receive adequate notice, and there was a possible violation of due
process.  App. C, infra, at 6-7.

   3. Petitioners filed a notice of appeal from the district court's
order on Monday, January 29, 1990, and immediately filed an emergency
motion for summary reversal and, in the alternative, for a writ of
mandamus.  That motion was supported by a declaration of the Secretary
of State.  That declaration stated, inter alia, that the United States
has never recognized an Aoun government and that, to the Secretary's
knowledge, no government in the world currently recognizes the Aoun
government (App. D, infra, at 2);  that Article 22(2) of the Vienna
Convention imposes a "special duty" on the United States to remove
unauthorized personnel from the Lebanese Embassy, and that the United
States is prepared to act without delay (id. at 2-3);  and that the
Government of Lebanon has repeatedly expressed to the Department of
State "the seriousness with which it views this matter," that the
Prime Minister of Lebanon had informed the Department of State that
Bouhabib's continued presence in the Embassy "would be paralyzing to
his government," and that President Hrawi's representatives viewed the
district court's ruling as a "major political setback" that would
prevent their Government from taking further important steps, such as
appointing other Ambassadors (id. at 3).

   The Secretary of State represented that, in his judgment, the
"expressions of extreme concern" by the Lebanese Prime Minister about
the damaging effect of the district court's order on the current
situation in Lebanon are credible.  In particular, the Secretary
pointed out that "(t)he Hrawi Government, the legitimate government of
Lebanon, is barely two months old and is seeking to consolidate its
authority in Lebanon, in the face of considerable difficulty." Because
those efforts are "being actively resisted by General Aoun," the
Secretary expressed the view that General Aoun would look carefully at
foreign reaction in deciding how long to resist the Hrawi Government,
and noted that General Aoun had instructed certain Lebanese
Ambassadors sympathetic to him not to turn over Lebanese Embassies.
Id. at 4-5.  He also noted that General Aoun's supporters have already
begun to use the district court's ruling to argue that the United
States is not fully committed to the Hrawi Government, as exemplified
by a headline in a Beirut newspaper on January 27, 1990.  Id. at 5.

   Against this background, the Secretary of State concluded that the
United States' long-standing policy of promoting the extension of the
authority of the legitimate Government of Lebanon throughout Lebanon
is "directly undermined" by the district court's order, because the
support of the United States, which "is critical to Hrawi's efforts,
is seriously undermined by the fact that Aoun's purported
representative is allowed to occupy the embassy property in
Washington." Id. at 5.  The Secretary also stated that the district
court's order is straining United States relations with the legitimate
Government of Lebanon.  Id. at 5-6.  Finally, the Secretary concluded
that the order "threatens broader U.S. interests," because the United
States relies on the Vienna Convention "on a daily and continuing
basis for the protection of embassies and diplomats overseas," noting
that the United States had appealed to the International Court of
Justice during the hostage crisis in Iran regarding Iran's duty to
make the United States' diplomatic premises immediately available to
the United States.  Id. at 6.  He explained that "(w)hen an American
Embassy abroad-requests assistance from the host government in
removing intruders, violent or otherwise, the United States considers
it unacceptable for that government to delay unnecessarily for even a
few hours." Accordingly, the "daunting precedent" of the ten-day delay
contemplated by the district court's order in this case "would be
intolerable," because "(t)he longer the order remains in force, the
worse precedent it sets for other States to follow in reciprocal
circumstances abroad." Id. at 6.

   4. Notwithstanding these representations by the Secretary of State,
the court of appeals refused to grant emergency relief, dismissing the
appeal and denying mandamus relief.  App. A, infra.  The majority
recognized that, although a temporary restraining order is ordinarily
not appealable, the District of Columbia Circuit itself, in Adams v.
Vance, 570 F.2d 950, 953 (1977), had recognized the appealability of a
district court order in the foreign relations setting that "upset()
the status quo and direct(ed) action with potent, irretrievable
consequences." App. A, infra, at 1.  But the court believed that this
case had not been shown to "fit that bill" or to be the equivalent of
an appealable preliminary injunction, in light of what the court
regarded as the order's "brief duration." Ibid.  The majority likewise
did not find the circumstances "sufficiently egregious" to warrant the
exercise of mandamus jurisdiction.  Id. at 2.  Judge Williams
dissented, stating that although the district court's restraining
order is negative in form, it is appealable under Adams v. Vance
because he "(did) not believe that (the court of appeals) should
second-guess the representations of the Secretary of State that delay
by the United States, in assisting the recognized government of
Lebanon in securing possession of its embassy, 'threatens fundamental
United States interests.'" App. A, infra, at 2.

   5. The majority noted that the district court stated that it would
decide the appropriateness of a preliminary injunction within the ten
days before the temporary restraining order expired, and it expressed
its anticipation that the district court therefore would rule and
enter an appealable order by February 5, 1990.  /8/ Accordingly, on
the morning of January 31, 1990, Department of Justice counsel
requested the district court to schedule an immediate hearing on
respondents' motion for a preliminary injunction on January 31, 1990,
and to grant relief on that date.  As of this filing, the district
court has not acted on that request.

                               ARGUMENT

   The district court's order, which the court of appeals has allowed
to remain in effect, constitutes an intolerable intrusion into the
exclusive powers of the President under Article II of the Constitution
and imposes serious and increasingly adverse consequences for the
Nation's foreign relations in a sensitive area of the word.  Those
consequences are demonstrated by the declaration of the Secretary of
State filed in the court of appeals (App. D, infra), as well as the
supplemental declaration of the Secretary, signed yesterday evening,
January 31, 1990 (App. H, infra), explaining that "the situation in
Lebanon has further deteriorated as General Aoun has, within the past
few days, stepped up his campaign to destabilize and unseat the Hrawi
government, whose well-being is an essential ingredient to United
States foreign policy in the Middle East" (id. at 3).  /9/

   The district court acknowledged, and respondents conceded below,
that the United States has recognized the Hrawi Government (not the
purported "Aoun Government") as the legitimate Government of Lebanon,
and that the President has the indisputable authority to do so.  That
uncontested fact and undisputed proposition of constitutional law
conclusively dispose of the merits of this case, because the
diplomatic representative of the recognized Government of the Republic
of Lebanon has the right to the immediate and undisturbed possession
of the Embassy of Lebanon in the United States, and the United States
has the duty under the Vienna Convention to render immediate
assistance to the Goernment of Lebanon in securing that possession.
Respondents clearly have no right under the Due Process Clause of the
United States Constitution to resolve a dispute with the recognized
government of Lebanon regarding the diplomatic premises belonging to
the Republic of Lebanon.  Furthermore, the court of appeals had both
jurisdiction and an obligation, either on appeal or a petition for a
writ of mandamus, to correct the grave error by the district court.
In these circumstances, an immediate stay of the district court's
order pending certiorari is clearly warranted.

   It is well settled that the Court or a single Justice has the
authority under the Court's Rules (now Rule 23) and the All Writs Act
to stay an order of a district court pending appeal to the court of
appeals.  See, e.g., Bureau of Economic Analysis, United States
Department of Commerce v. Long, 450 U.S. 975 (1981);  Heckler v.
Redbud Hospital District, 473 U.S. 1308 (1985) (Rehnquist, Circuit
Justice);  Heckler v. Lopez, 463 U.S. 1328 (1983) (Rehnquist, Circuit
Justice).  The Court or a Justice must have equivalent authority to
stay the order of a district court pending certiorari where the court
of appeals has ruled in the interim.  /10/ An application for a stay
in these circumstances calls for weighing several basic factors:  (a)
whether irreparable injury may occur absent a stay;  (b) the
probability that the courts below were in error;  (c) whether there is
a reasonable probability that certiorari will be granted;  and (d) the
public interests that may be affected by the operation of the order
that is sought to be stayed.  See, e.g., Republican State Central
Committee v. Ripon Society, 409 U.S. 1222, 1226 (1972) (Rehnquist,
Circuit Justice);  California v. American Stores Co., 110 S. Ct. 1,
3-4 (1989) (O'Connor, Circuit Justice);  John Doe Agency v. John Doe
Corporation, 109 S. Ct. 852, 853 (1988) (Marshall, Circuit Justice);
Rostker v. Goldberg, 448 U.S. 1306, 1308 (1980) (Brennan, Circuit
Justice).  Those factors strongly support a stay here.

   A. The factors of irreparable injury and the public interest
overwhelmingly support a stay.  As explained in the declarations of
the Secretary of State, discussed above, the foreign policy interests
of the United States are seriously and adversely affected by the
district court's order, and those adverse consequences increase in
their severity with each incremental period that the order remains in
effect.

   In addition to the adverse consequences described above, the
Secretary represents in his declaration dated January 31, 1990, that
the district court's order "prevents the United States from providing
a dramatic indication of United States political support to the
Government of Lebanon by assisting it to recover possession of its
diplomatic premises in the United States." Id. at 3.  The Secretary
further reports that "serious concern" has now been expressed about
the United States' commitment to the Hrawi Government by the
Governments of Morocco and Algeria, whose representations are
"particularly important" because they have been charged by the League
of Arab States "to work to restore the unity, sovereignty and
territorial integrity of Lebanon." Id. at 4.  In the Secretary's view,
"(w)e can not provide a convincing answer so long as the District
Court prevents us from honoring the Lebanese Government's request to
help it gain control of its own Embassy in Washington." Id. at 4.
Judge Williams was clearly correct in concluding that the courts
should not second-guess these representations by the Secretary of
State as to the adverse consequences that a district court order of
even a few days' duration may have.  Yet, the notion that "there would
be no serious injury to the United States if (Bouhabib) continues to
remain in possession of the Embassy while the temporary restraining
order remains in effect" was an essential premise of the district
court's balancing of the equities.  App. C, infra, at 6.

   The Secretary's most recent declaration also refutes the other
basic premise of the district court's balancing of the equities.  The
district court expressed the view that the public interest did not
appear to favor leaving the United States Embassy in the territory of
the "Aoun Government" unprotected against possible retaliation for
petitioners' efforts to remove Bouhabib from the Lebanese Embassy in
Washington.  See App. C, infra, at 6-7.  The Secretary represents in
his most recent declaration that contrary to the district court's
belief, Michel Aoun has not protected the United States Embassy.  "In
fact," the Secretary explains, "the United States was forced to
evacuate its American personnel from the Embassy in September, 1989,
because Aoun attempted to incite the Lebanese populace against the
United States Embassy and threatened 'Christian terrorism' against the
United States." App. H, infra, at 4-5.  This background fatally
undermines, rather than supports, any equitable claim by respondents
to remain in possession of the Lebanese Embassy in the United States.
In any event, it is for the Secretary of State, on behalf of the
President -- not for the district court -- to assess the probable
impact on United States foreign policy and the safety of American
personnel and property abroad that would result from the removal of
Bouhabib from the Embassy of Lebanon, and to weigh the competing
considerations.  That assessment and weighing should not be
second-guessed by the courts.

   Once these representations concerning the foreign policy interests
of the United States are credited, as they must be, the balance of the
equities and the dictates of the public interest are clear.  "It is
'obvious and unarguable' that no governmental interest is more
compelling than the security of the Nation," and "(p)rotection of the
foreign policy of the United States is a governmental interest of
great importance, since foreign policy and national security
considerations cannot be neatly compartmentalized." Haig v. Agee, 453
U.S. 280, 307 (1981).  Weighed against the compelling foreign policy
interests supporting a stay are respondents' interests, as the
purported "Aoun Government" and its purported representative, to
possession of the Embassy.  But those supposed "interests" weigh
further in favor of a stay, because those interests (and their very
recognition by the courts of the United States) directly undermine the
foreign policy interests of the United States.  If the United States
is to speak with one voice, through the Executive Branch, in the
recognition of the Hrawi Government and the non-recognition of the
"Aoun Government" -- with all that this implies for the diplomatic
prerogatives of the Hrawi Government -- no legitimacy can be attached
to the interests of the "Aoun Government" in retaining possession of
the Embassy premises.  Indeed, as a rival and unrecognized faction,
respondents do not even have the capacity to sue in United States
courts to invoke the rights of the Republic of Lebanon in any respect
-- much less to contest the right of the legitimate Government of
Lebanon to possession of its Embassy.  /11/

   The fact that Bouhabib also sued in his individual capacity does
not salvage his claims or lend equity to his position.  Bouhabib has
no personal right to possess or occupy the mission premises of the
Government of Lebanon or to diplomatic privileges and immunities.  See
Guaranty Trust Co. v. United States, 304 U.S. at 137 (rights are
vested in the foreign state).  All the more is that so where, as here,
his asserted personal right is in direct derogation of the wishes of
the Government of Lebanon and of a formal request by that Government
to remove him from the Embassy.

   B. The remaining factors bearing on the issuance of a stay also
strongly support that relief here.  The district court seriously erred
in enjoining petitioners from removing Bouhabib from the Embassy, in
accordance with the request of the Government of Lebanon, the United
States' duties under the Vienna Convention, and the foreign policy
interests of the United States (as determined by the Executive
Branch).  And the court of appeals similarly erred in refusing either
to reverse that order summarily or to grant mandamus relief.  The
underlying legal issues concerning the authority of the courts to
interfere with the President's recognition power plainly warrant
review by the Court in the critical context of this case, as do the
related questions of the appellate and mandamus jurisdiction of the
court of appeals in a case that so directly impacts upon the powers of
the Executive Branch and the conduct of the Nation's foreign
relations.  We believe that four Justices would vote to grant
certiorari and that the Court would overturn the judgments of the
courts below.

   1. Under Article II of the Constitution, the President of the
United States has the exclusive power to "receive Ambassadors" (Art.
II, Section 3) and to recognize foreign governments.  The authority to
determine who is the legitimate government of a foreign nation and who
is its legitimate ambassador -- and to receive that ambassador --
necessarily subsumes the power to determine who is entitled to possess
the embassy of that nation in the United States as its official
diplomatic representative.  The district court's order constitutes a
direct interference with these Article II powers of the President and
exceeds the jurisdiction and equitable powers of Article III courts.

   a. As this Court stated in Banco Nacional de Cuba v. Sabbatino, 376
U.S. 398, 410 (1964), "political recognition is exclusively a function
of the Executive." This eclusive authority derives from the
President's constitutional powers to appoint and receive Ambassadors
(Art. II, Sections 2 and 3), and his power to conduct the foreign
relations of the United States.  See United States v. Curtiss-Wright
Export Corp., 299 U.S. 304, 318-322 (1936).  The Executive's
determination whether to recognize a sovereign government, or which of
two competing governments to recognize, is a foreign policy judgment
that must be accepted by and is binding upon the courts.  /12/ As a
consequence, and in light of the textually demonstrable commitment of
this subject to the President, matters concerning the recognition of a
foreign government present political questions beyond the jurisdiction
of Article III courts.  Baker v. Carr, 369 U.S. 186, 212-213 (1961).

   It follows that the Executive Branch's determination that a regime,
such as the purported "Aoun Government," is not recognized is also
binding on the courts.  The Maret, 145 F.2d 431, 442 (3d Cir. 1944)
("Non-recognition of a foreign sovereign and nonrecognition of its
decrees are deemed to be as essential a part of the power confided by
the Constitution to the Executive for the conduct of foreign affairs
as recognition.").  See also Latvian State Cargo Lines & Passenger
S.S. Line v. McGrath, 188 F.2d 1000, 1003 (D.C. Cir. 1951), cert.
denied, 342 U.S. 816 (1951).

   As the declaration of Assistant Secretary Kelly explains (App. E,
infra), and as respondents conceded below (Plaintiffs' Memorandum in
Support of Temporary Restraining Order, at 4), the Executive Branch
has recognized the government headed by President Elias Hrawi as the
Government of Lebanon.  Moreover, the Aoun regime has never been
recognized by the United States as the government of Lebanon (and it
is not recognized by any other state).  Baker Decl., App. D, infra, at
2.  Those recognition determinations by the Executive are binding upon
the Judiciary.  Indeed, respondents conceded in the court of appeals
that they cannot challenge those determinations.  See Plaintiffs'
Reply to Opposition to Motion to Dismiss Appeal, at 1-2.

   b. The decision of the President to recognize the Hrawi government
and its ambassador is dispositive of the status of Mr. Bouhabib.  The
authority to recognize foreign heads of states, diplomats and other
governmental representatives in the United States, as an aspect of the
President's constitutional powers under Article II, determines rights
under international law, /13/ including those accorded parties to the
Vienna Convention on Diplomatic Relations, to which Lebanon and the
United States are parties.  Compare Goldwater v. Carter, 444 U.S. 996,
1007 (1979) (Brennan, J., dissenting).  Thus, the United States
Government looks to the Hrawi Government to inform the United States
who its authorized representatives are, in accordance with the terms
and procedures set forth in Article 10 of the Vienna Convention.

   As the declaration of Assistant Secretary Kelly explains, the Hrawi
government notified the United States on December 11, 1989, that Mr.
Bouhabib's functions as Ambassador of Lebanon were terminated as of
December 7, 1989.  App. E, infra, at 3.  Upon such notice of
termination, Bouhabib's diplomatic functions came to an end, in
accordance with Article 43(1) of the Convention.  Moreover, in
accordance with Article 39(2) of the Convention, a diplomat's
"privileges and immunities * * * normally cease at the moment when he
leaves the country or on the expiry of a reasonable period in which to
do so." Because Bouhabib has chosen not to leave the United States,
his privileges and immunities automatically expired at the end of
thirty days, which the United States considers a reasonable time in
which to leave (absent a specific determination to the contrary, which
was not made in this case).  Newton Decl., App. F, infra, at 5;  U.S.
v. Guinand, 688 F. Supp. 774 (D.D.C. 1988);  see also 1980 Digest of
United States Practice in Int'l Law, 328, 332 (Libyan diplomats
declared unacceptable, and given 78 hours to leave after which time
they were subject to immediate expulsion).  Accordingly, Bouhabib no
longer enjoys any privileges and immunities under the Vienna
Convention, except with respect to those acts performed when he was
Ambassador.  Even prior to expiration of the 30-day period during
which Bouhabib's diplomatic privileges and immunities remained in
effect (under ordinary United States policy), Bouhabib had no rights,
as against the recognized Government of Lebanon, to possession of the
Lebanese Embassy.

   c. The United States has a duty to assist the recognized Government
of Lebanon in obtaining the premises of its diplomatic mission.
Article 22(2) of the Vienna Convention provides that "the receiving
State is under a special duty to take all appropriate steps to protect
the premises of the mission against any intrusion or damage and to
prevent any disturbance of the peace of the mission or impairment of
its dignity." /14/ With no supporting authority, the district court
suggested that Bouhabib's presence on the mission premises was not an
"intrusion." App. C, infra, at 3.  To the contrary, the State
Department treats any unauthorized presence, including trespassing, on
mission premises as an "intrusion" (Kelly Decl., App. E, infra, at 5),
and the Government of Lebanon, in requesting the assistance of the
United States here, adheres to the same view.  The State Department's
interpretation is entitled to "great weight," Kolovrat v. Oregon, 366
U.S. 187, 194 (1960), especially when the foreign government concerned
takes a similar position.  Sumitomo Shoji America, Inc. v. Avagliano,
457 U.S. 176, 185 (1982).  When there is an intrusion or forcible
entry into a mission's premises by someone unauthorized or unwelcomed
by the sending state, it is the normal practice for the United States
to remove the intruders "without delay," /15/ upon the request of the
sending State or its authorized representative.  See Kelly Decl., App.
E, infra, at 5;  Fatimi v. United States, 192 A.2d 525, 528 (D.C.
1963) (students who refused to leave when requested by head of mission
removed by police and found guilty of unlawful entry).  /16/
Furthermore, the presence of a representative of a rival faction in
the Embassy of Lebanon constitutes an "impairment of its dignity," and
therefore triggers the "special duty" of the United States under
Article 22(2) of the Convention for this additional reason as well.
And, similarly, with respect to official papers, Article 24 of the
Vienna Convention provides:  "The archives and documents of the
mission shall be inviolable at any time and wheresoever they may be."

   The special duty to provide protection to a mission premises is one
the United States views particularly seriously.  As the declaration of
Assistant Secretary Kelly explains, United States missions overseas
rely heavily on the obligation of the receiving State to provide
protection (Kelly Decl., App. E, infra, at 4-5), as the Iran hostage
crisis made abundantly clear.  Case Concerning United States
Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1980 I.C.J. 3,
32 (International Court of Justice rules that, since Iran had treaty
obligations to "take appropriate steps" to protect the embassy and
those in it, its "inaction * * * by itself constituted a clear and
serious violation").  Failure of the United States to abide by this
duty, or hindrance of the United States' ability to carry it out, may
cause the sending State to withdraw protection to United States
missions on the basis of Article 47(2)(a) of the Convention.  See
generally Boos v. Barry, 108 S. Ct. 1157, 1164-1165 (1988)
(recognizing the United States' vital interest under the Vienna
Convention in protecting foreign embassies and the practical
importance of reciprocity in doing so).  In this regard, the district
court's order is particularly harmful to United States interests
abroad, because, as the Secretary of State explains, it has set a
"daunting precedent" by requiring a ten-day delay in acting on a
request.  App. D, infra, at 7.

   In sum, the United States has a clear duty under the Vienna
Convention, upon the request of the Government of Lebanon, to remove
Bouhabib from the Embassy premises.

   d. The district court's decision to grant injunctive relief in the
face of these compelling obligations is apparently premised on the
notion that the "Aoun Government" or Bouhabib has a "property right"
in the embassy premises and any official papers generated during
Bouhabib's tenure as Ambassador, by virtue of his present possession
of the Embassy premises and papers.  App. C, infra, at 3-6.  Based
upon this conclusion, the district court reasoned that this case dealt
with "property rights" rather than international relations, that it is
thereby justiciable, and that, given respondents' "property rights,"
"those who are in possession are at least entitled to reasonable
notice and process under American law." Id. at 4.  Indeed, the
district court directly analogized this case to a domestic
landlord-tenant dispute.  Ibid.  This reasoning is seriously flawed
and completely without support.

   The first flaw is the assumption that either the "Aoun Government"
or Bouhabib, who no longer represents the Republic of Lebanon in the
United States, has any legally cognizable interest in either the
premises of the Embassy of Lebanon or in any of its official papers.
As this Court has recognized, "the rights of a sovereign state are
vested in the state rather than in any particular government which may
purport to represent it." Guaranty Trust Co. v. United States, 304
U.S. 126, 137 (1938).  See also The Sapphire, 78 U.S. (11 Wall.) 164,
168-69 (1870);  National Union Fire Ins. Co. v. The Republic of China,
254 F.2d 177, 186 (4th Cir.), cert. denied, 358 U.S. 823 (1958);  The
Rogdai, 278 F. 294, 296 (N.D. Cal. 1920).

   Even a change in recognition of governments would not work any
change in "property rights" to the Embassy premises and any official
papers.  As numerous cases that deal with a foreign state's right to
pursue a claim in our courts have recognized, "the state is continuous
and the right of action really resides in the aggregate body of the
people who are merely represented by particular governmental
organizations which may change in character or personnel." State of
Yucatan v. Argumendo, 92 Misc. 547, 157 N.Y.S. 219, 225 (Sup. Ct.
1915) (emphasis added), citing Underhill v. Hernandez, 168 U.S. 250,
253 (1897).  Or, as this Court stated in The Sapphire concerning the
right of the French government to pursue, in the name of Emperor
Napoleon, a claim for damages to its warship after Napoleon had been
deposed:

         On (Napoleon's) deposition the sovereignty does not change,
      but merely the person or persons in whom it resides.  The
      foreign state is the true and real owner of its public vessels
      of war.  The reigning Emperor, or the National Assembly, or
      other actual person or party in power, is but the agent and
      representative of the national sovereignty.  A change in such
      representative works no change in the national sovereignty or
      its rights.

   78 U.S. (11 Wall.) at 168 (emphasis added).  See also Lehigh Valley
Ry. Co. v. State of Russia, 21 F.2d 396, 401 (2d Cir. 1927) ("though
the government changes, the nation remains, with rights and
obligations unimpaired"), quoting 1 Moore, Digest of International Law
249.

   Thus, the premises of the Embassy of Lebanon and its official
papers belong to the Republic of Lebanon.  Those rights may be
asserted and enjoyed in the United States, including in the courts of
the United States, only by the recognized Government of Lebanon, that
of President Hrawi.  Accordingly, upon recognition of the Hrawi
Government by the United States, the right to invoke and enjoy all
rights incident to the title of the Republic of Lebanon to the Embassy
premises and all official papers immediately vested in that
Government, which thereby became entitled to immediate possession of
the premises and all official papers therein.  1 L. Oppenheim,
International Law Section 75, at 137-138 (H. Lauterpacht 8th ed.
(1955) (upon recognition, a government "becomes entitled to demand and
receive possession of property situate within the jurisdiction of a
recognizing State, which formerly belonged to the preceding government
at the time of its supersession.") (collecting authorities).  /17/
Indeed, as we noted above, the United States Government, under the
Vienna Convention, has a special obligation to protect the embassy
premises for the Hrawi Government -- not, as the district court seemed
to think, for Bouhabib and "those aligned with him." App. C, infra, at
4-5, 6.  In short, respondent Bouhabib is a trespasser with respect to
the Embassy property, and he unlawfully holds possession of official
papers of the Republic of Lebanon.  That he may have come by that
possession as a result of his prior position is irrelevant.  Thus, at
present, neither he nor the "Aoun Government" he purports to represent
has any "property rights" in the Embassy premises or official papers
that could trigger the protection of the Due Process Clause.

   Indeed, with all respect to the district court, respondents' due
process claim -- which was essentially the sole basis on the merits
for the district court's order (App. C, infra, at 4-5) -- is
frivolous.  Neither a rival faction to a recognized government in
another country, nor the purported "representative" of that faction in
this country, has any rights under the Due Process Clause of the
United States Constitution to notice and an opportunity for a hearing
before it must relinquish the diplomatic premises in the United States
(or official papers in those premises) to the representative of the
recognized government of the foreign nation.  Such a dispute is wholly
internal to the foreign nation.  When the United States chooses to
recognize the new diplomatic representative of the foreign nation, the
right of the former diplomatic representative to possess the premises
and papers is terminated as a matter of law.  That is all the
"process" that the United States Constitution could conceivably
require, since that same Constitution textually commits to the
President the power to "receive Ambassadors" (Art. II, Cl. 3), and
therefore to cease to receive an Ambassador and to recognize him as
such.

   The frivolous nature of the respondents' due process claim is
further underscored by the indisputable proposition that even a United
States Ambassador serving abroad -- or a Cabinet Officer serving in
the United States at the pleasure of the President -- would not have
any such right under the Due Process Clause to notice and an
opportunity for a prior hearing, if he was removed from his official
position and ordered to vacate the premises that he once occupied only
as an incident of his official position.  Any other result would
hamstring the President's ability to "take care that the Laws be
faithfully executed" (Art. II, Section 3) -- and in this context, to
conduct the foreign relations of the United States -- through a
successor in office who has unimpeded access to the official premises
and papers.  See Myers v. United States, 272 U.S. 52, 134 (1926).  And
if such a person declined to relinquish those official premises and
papers, appropriate law enforcement or other security officials of the
United States could remove him.

   Finally, even if respondents had some sort of "property right" in
the Embassy premises and papers, the district court's apparent belief
that Bouhabib (or the "Aoun Government") lacked adequate notice of his
termination as Ambassador of Lebanon and the requirement that he
vacate the Embassy (App. C, infra, at 4-5) was neither alleged by
respondents nor supported by the record.  Nowhere did Bouhabib assert
that he lacked notice of his termination as the Ambassador of Lebanon
to the United States, and nowhere did he assert that he had no notice
that the recognized government expected him to leave the Embassy
premises by December 20, 1989;  to the extent the record below
addresses this issue, it confirms that Bouhabib had sufficient notice.
 See Kelly Decl., App. E, infra, at 3.  /18/ In any event, Bouhabib
has had ample notice now.  /19/ And neither he nor the respondent
"Aoun Government" has identified any issue of material fact concerning
their asserted right to possession of the Embassy premises and
official papers that would have to be resolved at a hearing, since
they concede the only facts -- the United States' recognition of the
Hrawi Government and that Government's request for assistance in
removing Bouhabib from the premises -- that are relevant to the
court's determination of that question.  /20/

   e. Because the authority of the President to make the Embassy of
Lebanon available to those whom he recognizes as the diplomatic
representatives of the Republic of Lebanon flows directly from his
power, textually committed to him Article II, Section 3 of the
Constitution, to "receive Ambassadors," respondents' claims to
possession of the Lebanese Embassy present political questions beyond
the Article III jurisdiction of the courts to resolve.  Baker v. Carr,
369 U.S. at 212-213;  Goldwater v. Carter, 444 U.S. at 1002-1006
(Rehnquist, J., concurring).  At the very least, the extent to which
the relief granted by the district court intrudes upon the
constitutional responsibilities of the President establishes that the
district court manifestly exceeded the scope of its equitable powers
by granting the injunctive relief at issue here, under which the
United States Government -- acting on behalf of the President, and at
the request of the recognized Government of Lebanon -- has been
"stopped in its tracks." Larson v. Domestic & Foreign Commerce Corp.,
337 U.S. 682, 704 (1949).  See also Weinberger v. Romero-Barcelo, 456
U.S. 305, 312 (1982) ("courts of equity should pay particular regard
for the public consequences in employing the extraordinary remedy of
injunction");  Webster v. Doe, 108 S. Ct. 2047, 2054 (1988);  Ramirez
de Arellano v. Weinberger, 788 F.2d 762, 764 (D.C. Cir. 1986) (en
banc), on remand from 471 U.S. 1113 (1985), vacating 745 F.2d 1500
(D.C. Cir. 1984).

   f. The district court's errors are so manifest and have such
seriously adverse consequences, that, in our view, four Justices of
the Court would grant review and reverse the grant of injunctive
relief by the district court.

   2. We also believe that the court of appeals clearly erred in
dismissing petitioners' appeal in these circumstances and denying
their alternative petition for a writ of mandamus.  As the majority
below recognized, the District of Columbia Circuit previously held
that, despite the characterization of a district court order as a
temporary restraining order, if the order alters irreversibly a
"delicate diplomatic balance," it is "in purpose and effect a
mandatory injunction appealable under 28 U.S.C. 1291(a)(1)." Adams v.
Vance, 570 F.2d 950, 953 (D.C. Cir. 1977).  See also Sampson v.
Murray, 415 U.S. 61, 86-88 (1974);  OPM v. Government Employees, 473
U.S. 1301, 1304-1305 (1985) (Burger, Circuit Justice).

   The majority below apparently believed that this case was
distinguishable from Adams v. Vance, because, in its view, the
district court's order simply maintains the "status quo." Contrary to
that apparent view, however, the district court's order substantially
altered the status quo in the extraordinary circumstances of this
case, when the respective positions of the parties and the Government
of Lebanon are taken fully into account.  Prior to entry of the
district court's order, the President was free, as he must be, to
carry out his responsibilities under the Constitution and Vienna
Convention in the manner he deemed the interests of the United States
to require, and to respond both to the formal request by the
recognized Government of Lebanon to make its Embassy available and to
the circumstances that lend urgency to that request.  The district
court's order drastically changes that status quo, because it intrudes
the courts into diplomatic matters that are committed to the President
and intolerably circumscribes the discretion of the President to
respond immediately and appropriately to often-fluid circumstances
throughout the world.  For these reasons, Judge Williams correctly
concluded that, although the district court's order is "negative in
form," it presents the same considerations that warranted immediate
appeal in Adams v. Vance.  Compare Zardui-Quintana v. Richard, 768
F.2d 1213, 1215 n.7 (11th Cir. 1985).

   Other courts of appeals have recognized that use of the label
"temporary restraining order" does not defeat appealability if the
order in substance is a preliminary injunction.  The First Circuit,
for example, has held that if the particular order lacks the features
of ex parte presentation and short duration typically associated with
a temporary restraining order, an appeal will lie.  San Francisco Real
Estate Investors v. Real Estate Investment Trust, 692 F.2d 814, 816
(1st Cir. 1982).  /21/ Other court of appeals decisions have
considered similar factors, stressing the importance of whether the
order threatens irreparable injury or intrudes into an area that is to
be free of judicial involvement.  See McDougald v. Jenson, 786 F.2d
1465, 1472-1473 (11th Cir.), cert. denied, 479 U.S. 860 (1986);
District No. 1, Marine Engineers' Beneficial Ass'n v. Trinidad Corp.,
723 F.2d 70, 75-76 (D.C. Cir. 1983);  Belknap v. Leary, 427 F.2d 496,
498 (2d Cir. 1970) (Friendly, J.);  see generally 16 C. Wright, A.
Miller, E. Cooper & E. Gressman, Federal Practice and Procedure,
Section 3922, at pp. 37-38 (1977).

   These considerations strongly support the appealability of the
district court's order under 28 U.S.C. 1292(a)(1).  The district court
held a hearing and received written submissions on the issuance of the
order, the order intrudes into an area that the Constitution requires
to be free of judicial control, irreparable injury will result to the
foreign relations of the United States while the order is in effect,
and although the order falls within the 10-day limit permitted for
temporary restraining orders issued ex parte, the element of duration
must be considered in relation to the resulting harm to the national
interests.  There also is no basis for believing that any evidence
supporting respondents' claim to possession of the Embassy would be
developed at another hearing.  See Coalition for Basic Human Needs v.
King, 654 F.2d 838, 839-840 (1st Cir. 1981).

   In any event, even if the court of appeals did not have appellate
jurisdiction under 28 U.S.C. 1292(a)(1), it should have granted
mandamus relief barring the district court from interfering with
petitioners' actions in aid of the President's powers under Article II
of the Constitution and the Vienna Convention.  Mandamus relief is
available "'to confine an inferior court to a lawful exercise of its
prescribed jurisdiction or to compel it to exercise its authority when
it is its duty to do so.'" Gulfstream Aerospace Corp. v. Mayacamas
Corp., 108 S. Ct. 1133, 1143 (1988), quoting Roche v. Evaporated Milk
Ass'n, 319 U.S. 21, 26 (1943).  Here, the district court plainly
exceeded its jurisdiction under Article III by intruding into an area
committed to the Executive Branch (see pages 20-26, supra) and by
granting relief to parties who do not have capacity to sue in United
States courts (see page 18 and note 11, supra, and cases cited).  And
the district court clearly exceeded the limits on the lawful exercise
of its jurisdiction by granting the extraordinary remedy of injunctive
relief in circumstances where the merits of respondents' claims are
wholly insubstantial, the equities overwhelmingly favor the denial of
relief, and the constitutional prerogatives of a coordinate Branch are
at stake.  See cases cited at pages 31-32, supra.

   The Court has made clear that mandamus will lie where necessary to
correct a "judicial 'usurpation of power'" (Will v. United States, 389
U.S. 90, 95 (1967), quoting De Beers Consolidated Mines, Ltd. v.
United States, 325 U.S. 212, 217 (1945)), and, in particular, "where
unwarranted judicial action threaten(s) 'to embarrass the executive
arm of the Government in conducting foreign relations'" (Will v.
United States, quoting Ex parte Peru, 318 U.S. 578, 588 (1943)).  That
is precisely the situation here, and the court of appeals plainly
erred in denying mandamus relief.  Emergency relief by a Justice of
this Court therefore is warranted.

                              CONCLUSION

   The application for a stay of the January 26, 1990, order of the
United States District Court for the District of Columbia pending
certiorari to the United States Court of Appeals for the District of
Columbia Circuit should be granted.  /22/

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   ABRAHAM D. SOFAER

      Legal Adviser Department of State

   FEBRUARY 1990

   /1/ Also appended hereto are the January 30, 1990, order of the
court of appeals (App. A, infra);  the order of the district court
(App. B, infra);  the transcript of hearing at which the district
court explained its order (App. C, infra);  other declarations before
the court of appeals (Apps. E-G, infra);  and the Vienna Convention on
Diplomatic Relations and a Protocol to that Convention (App. I,
infra).

   /2/ Bouhabib has no "individual" right to remain in the Embassy in
contravention of the wishes of the Government of Lebanon.  Any
"rights" he may have must derive from the rights asserted by and on
behalf of the "Aoun Government" (which rights are non-existent) or
from his former status as an Ambassador (which rights have
terminated).

   /3/ In November 1989, the United States recognized the government
of Rene Moawad, who was elected President of Lebanon on November 5,
1989.  On November 18, 1989, the United States Ambassador to Lebanon
presented his credentials to the Moawad government.  President Moawad
was assassinated on November 22, 1989, and Elias Hrawi was elected to
succeed him as President on November 24, 1989.  Declaration of John H.
Kelly, Assistant Secretary of State for Near Eastern Affairs, App. E,
infra, at 2.

   Mr. Kelly's declaration and that of John Crook, the Assistant Legal
Adviser for Treaty Affairs of the Department of State (App. G, infra),
were attached as exhibits to the government's district court papers.
Because of the need for immediate emergency relief, petitioners filed
in the court of appeals the additional declarations of Secretary of
State James Baker (App. D, infra) and David G. Newton, the Director of
the Office of Jordan, Lebanon and Syrian Affairs in the Department of
State (App. F, infra), addressing the foreign policy consequences of
the district court's order.  See Adams v. Vance, 570 F.2d 950, 956
n.13 (D.C. Cir. 1977) (allowing filing of supplemental affidavits in
court of appeals).

   /4/ The Secretary of the Treasury, through the Secret Service, is
charged with responsibility for guarding foreign diplomatic missions
in the metropolitan area of Washington, D.C.  3 U.S.C. 202.

   /5/ The filing of respondents' suit actually preceded by one day
the formal request to remove Bouhabib.  Respondents informed the
district court that they learned "through informal channels" of the
imminent request for assistance by the Government of Lebanon.
Memorandum in Support of Plaintiffs' Motion for a Temporary
Restraining Order, at 6.

   /6/ The Declaration of John Crook (App. F, infra) states, based on
a review of the official records of the Department of State, and after
confirmation with the United Nations, that Lebanon in fact is not a
party to the protocol.

   /7/ The district court also expressed reservations about
petitioners' reliance on precedent establishing that an unrecognized
government does not have the capacity to sue in United States courts
(see note 13, infra), because this case involves a dispute over
property.  App. C, infra, at 2-3.  Moreover, the court rejected
petitioners' argument that the United States has an obligation to
render immediate assistance by virtue of the "special duty" under
Article 22(2) of the Vienna Convention to take appropriate steps to
protect the mission against "any intrusion or damage." Here, the court
reasoned, Bouhabib did not "intrude" into the Embassy, but instead was
already in possession.  Id. at 3-4.

   /8/ Under Fed. R. Civ. P. 65(b), a temporary restraining order
entered without notice and a hearing may not remain in effect for not
more than 10 days.  Under Fed. R. Civ. P. 6(a), when the rules refer
to a period of eleven days or less, intermediate Saturdays, Sundays,
and legal holidays are excluded.  Under this calculation, if the
district court's order in this case is subject to the 10-day limit in
Fed. R. Civ. P. 65(b), it could remain in effect until February 9,
1990.  It is unclear, however, whether the district court intended its
order to impose a shorter limit of ten calendar days, until February
5, 1990.  See App. B, infra, at 2.

   /9/ Specifically, the Secretary states, upon information and
belief, that "Aoun has within the past two days cut off the flow of
water to West Beirut, the seat of the Hrawi government";  has
threatened to cut off electricity in West Beirut;  and "has moved to
crush by military force his Christian opponents within the small,
300-square mile enclave over which he claims control." App. H, infra,
at 3.  See also "Christians Fight Muslims and Each Other in Beirut,"
N.Y. Times, at p. A3 (Jan. 31, 1990);  "Aoun Moves to Tighten Control
by Banning Lebanon's Christian Militia," Wash. Post, at p. A14 (Jan.
31, 1990).

   /10/ Rule 23.3 states that except in the most extraordinary
circumstances, a stay will not be granted by the Court or a Justice
unless the relief requested has first been sought in the appropriate
court or courts below.  In this case, petitioners' motion for
emergency relief from the court of appeals, in the form of an order of
summary reversal of the temporary restraining order or a writ of
mandamus, served essentially the same purpose as an application for a
stay of the district court's order.  Moreover, the court of appeals'
rejection of that application in the face of the representations of
the Secretary of State make clear that a further application would be
futile.  In addition, we have requested the district court to schedule
an immediate hearing on the preliminary injunction, so that the
restraining order may be immediately dissolved, but the district court
has not granted relief.  In these circumstances, petitioners' requests
for relief from the courts below satisfy the basic purposes underlying
the requirements of Rule 23.3.  In any event, this case clearly
presents "extraordinary circumstances" warranting dispensing with
those requirements if they technically have not been satisfied here.

   /11/ A decision by the Executive Branch not to recognize a
purported government results in that regime's and its representatives'
being denied the right to sue in United States courts, absent a
statement by the Executive declaring that denial of recognition should
not preclude access to the courts.  See Pfizer, Inc. v. India, 434
U.S. 308, 319-20 (1978);  Banco Nacional de Cuba v. Sabbatino, 376
U.S. 390, 410-11 (1964).  Obviously no such representation has been
made here, and if there could be any doubt on the point, we disavow
any such statement here.  Hence, the purported "Aoun Government" and
Bouhabib as its representative lack standing to seek relief in the
United States courts.  See Guaranty Trust Co. v. United States, 304
U.S. 126, 137 (1938).  See also Republic of Vietnam v. Pfizer, 556
F.2d 892, 894 (8th Cir. 1977);  Kunstsammlungen zu Weimar v. Elicofon,
358 F. Supp. 747 (E.D.N.Y. 1972), aff'd 478 F.2d 231 (2d Cir. 1973),
cert. denied, 416 U.S. 952 (1974).

   Respondents' efforts in the courts below to distinguish themselves
for standing purposes as a derecognized government, rather than a
non-recognized government, is flatly inconsistent with the Executive
Branch's position that it has never recognized the Aoun Government.
The Executive Branch's position on that question is binding upon the
courts.  See pages 21-23, infra.  In any event, whatever the merits of
this distinction between derecognized and non-recognized governments
in other contexts, it is of no consequence here, where a purported
"government" that is not recognized by the United States seeks to
invoke the jurisdiction of United States courts to contest the right
to the present possession of the embassy by the government that is
recognized by the United States.

   /12/ Accord, Jones v. United States, 137 U.S. 202, 212-14 (1890);
Oetjen v. Central Leather Co., 246 U.S. 297, 322 (1918);  Guaranty
Trust Co. v. United States, 304 U.S. 126, 137-38 (1938);  See also
United States v. Belmont, 301 U.S. 324, 330 (1937);  United States v.
Pink, 315 U.S. 203, 229-30 (1942).

   /13/ Guaranty Trust Co. v. United States, 304 U.S. at 137-38;
United States v. Lumumba, 741 F.2d 12, 15 (2d Cir. 1984).

   /14/ The premises of the mission include the ambassador's residence
in accordance with the definition in Article 1(i) of the Vienna
Convention.

   /15/ The district court erroneously concluded that it was customary
U.S. practice to give 30 days notice for removal from diplomatic
premises.  App. C, infra, at 4.  The 30-day practice applies only to
the termination of privileges and immunities, which is a completely
separate matter.  See Newton Decl., App. F, infra, at 4.

   /16/ The practice of requiring a request from the sending state
ensures that any actions by law enforcement authorities would not be
in violation of Article 22 of the Vienna Convention, including the
duty to protect the inviolability of the premises of the mission,
which permits entrance only upon consent of the sending State.

   /17/ See also Voevodine v. Government of Commander In Chief, 232
App. Div. 204, 249 N.Y.S. 644, 649 (1st Dept.), aff'd, 257 N.Y. 557
(1931) (emphasis added) ("The property of such a government belongs to
the state, as sovereign, and, upon the overthrow of the (prior) * * *
government, another government replacing it would succeed to the
representative right of such * * * government in all of its
property.");  State of Yucatan v. Argumendo, 157 N.Y.S. at 225
("Plaintiff, as the recognized state government, is vested with all
state property, including title to (property) accumulated during
previous * * * regimes").

   /18/ In fact, Bouhabib received actual notice of his termination on
or about December 11, 1989, and he acknowledged to the Department of
State that he had been removed.  Newton Decl., App. F, infra, at 3-4.
The Newton Declaration was not in the record before the district court
because respondents did not raise the issue of notice of the
termination of Bouhabib's status in connection with their application
for a temporary restraining order.  The district court raised that
issue at the hearing below and in its oral ruling, and respondents
failed to correct the court's mistaken view of the facts.

   /19/ Therefore, even if there were merit to the district court's
concern that respondents were entitled to sufficient notice to enable
them to remove certain papers, they had such notice here.

   /20/ In their complaint, but not in their Motion for a Temporary
Restraining Order, respondents alleged a lack of notice of a planned
"use of force" to remove Bouhabib.  Complaint Paragraph 32.  This
allegation differs from the district court's apparent belief that
Bouhabib lacked notice that he was to vacate the mission premises no
later than December 20, 1989.  Bouhabib has now had over a month's
notice that he must leave.  Moreover, no "force" will be required to
remove Bouhabib from the premises if he surrenders them to the
Government of Lebanon, as he is obligated to do.

   /21/ In San Francisco Real Estate, the duration of the restraining
order exceeded the 10-day limit for ex parte orders, but the First
Circuit did view that feature as dispositive.  See 692 F.2d at 816.

   /22/ In the alternative, the Court could treat these stay papers as
a petition for a writ of certiorari, grant the petition, and summarily
reverse the judgment of the court of appeals denying petitioners
emergency relief.