Constitution are applied, the resulting scope is determined through reference to judicial pronouncements and applied to the facts, and a conclusion is drawn. While the "fixed" analytical framework has the advantage of predictability, its weakness is that it accords statutory approval or disapproval an uncertain role; it assumes, within a given factual context, an unvarying reach of executive constitutional authority regardless of congressional enactments. Would the "sole organ” formula of Curtiss-Wright, for example, apply irrespective of action taken by Congress? c. Application to the CIA-THRUSH Agreement In the hypothetical described above, the CIA's symbiotic relationship with THRUSH would permit, if not encourage, the Tinarian secret police to violate the first amendment rights of Tinarian nationals and some United States citizens. Simply stated, the issue is whether the foreign relations power of the president should prevail over the rights guaranteed under the first amendment. First, the symbiotic relationship between the CIA and THRUSH is sufficient to establish state action. Further, the foreign dissidents in the United States did face"a threat of specific future harm." They were in danger of being "countered" upon their return home (or in the United States) as a direct result of surveillance in the United States. The resident aliens therefore have standing to seek the protection of the courts against unconstitutional executive action. One may reasonably conclude that in light of the present posture of the Supreme Court, the rights of resident aliens should prevail. 2. The "Fluctuating Powers" Test a. Jackson's Steel Seizure analysis Justice Jackson wrote that government under the Constitution does not and cannot “conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. "112 “Presidential powers are not fixed but fluctuate . . . A situation involving the assertion of presidential power, he theorized, thus falls into one of three categories: "113 1. When the President acts pursuant to an express or implied 112. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635 (1952). 113. Id. grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority. 3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb... 114 The fluctuating powers analysis is not without flaws. It is, as Justice Jackson acknowledged, "somewhat over-simplified."115 Moreover, Justice Rehnquist is doubtless correct in the observation that "executive action in any particular instance falls, not neatly into one of three pigeonholes, but rather at some point along a spectrum." "116 More important, the analysis does not avoid the principal weakness of the "fixed powers" approach: the "fluctuating powers" analysis requires an assignment of value to the executive power at issue, and another assignment of value to whatever legislative power that was exercised. The threshold question in each of the three categories necessarily remains the scope of the President's "own independent powers. "117 A final defect in Jackson's analysis is that, while its structure does take account of statutory provisions that may affect executive power, at no stage does it provide for the consideration of constitutional provisions affecting the President's power, those specifically set forth in the Bill of Rights. While the fluctuating powers analysis provides a useful tool for weighing assertions of executive power against those of the legislative branch, its practical utility is limited when the situation is further complicated by express constitutional limitations. "118 One is not altogether convinced, therefore, by Justice Rehnquist's assertion that the Jackson approach "brings together as much combination of analysis and common sense as there is in this area. Nonetheless, its tripartite framework is helpful in considering congressional intent with respect to issues such as the CIA-THRUSH arrangement found in the hypothetical. 114. Id. at 635-38. 115. 343 U.S. at 635. 116. Dames & Moore v. Regan, 453 U.S. 654, 669 (1981). 117. 343 U.S. at 637. In the dispute between the Senate Foreign Relations Committee and the Justice Department in 1979 concerning the treaty termination issue, the question of application of the fluctuating powers test involved essentially the scope of presidential power. See S. REP. NO. 7, 96th Cong., 1st Sess. 19 (1979); S. Rep. No. 119, 96th Cong., 1st Sess. 6 (1979); cf. letter from Larry A. Hammond, Deputy Assistant Attorney General, Office of Legal Counsel, to Frank Church, Chairman, Senate Foreign Relations Committee (undated), reprinted in Treaty Termination: Hearings on S. Res. 15 Before the Senate Comm. on Foreign Relations, 96th Cong., 1st Sess. (1979). 118. 453 U.S. at 661. b. Congressional Will Under the fluctuating powers analysis, the second category 119 is inapplicable since Congress has not left the field open. While disagreement may arise as to what form congressional will has actually taken, there seems little ground for arguing that a failure by Congress to legislate has "invited" 120 independent presidential action. The following review of congressional statutes indicates that Congress has not remained silent. Several treaties which have been the subject of congressional consideration, some ratified by the Senate, are also examined. The activities of the CIA are governed by the National Security Act of 1947.121 Congress has enacted three statutes requiring the registration of foreign agencies operating in the United States. 122 Congress has further enacted statutes imposing both criminal and civil liability for the deprivation of the rights of inhabitants of the United States. These statutes reveal the will of Congress with respect to CIA liaisons with foreign intelligence agencies and the activities of such agencies in the United States. i. Criminal Liability Under 18 U.S.C. 242 Section 242 of title 18, United States Code, provides: Whoever, under color of any law willfully subjects any inhabitant of any State, Territory or District to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States shall be fined not more than "$1,000 or imprisoned not more than one year, or both 123 Section 242 protects the rights of resident aliens because its coverage is framed in terms of “inhabitants." Moreover, no doubt exists that 18 U.S.C. § 242 applies to actions of federal officials. Unlike one of its civil analogues, 42 U.S.C. § 1983, section 242 is not confined to 119. See supra note 114 and accompanying text. 120. In his concurring opinion, Justice Jackson wrote: When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain. Therefore, congressional inertia, indifference or quiescence may sometimes, at least as a practical matter, enable, if not invite, measures on independent presidential responsibility. In this area, any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law. 343 U.S. at 637. 122. 22 U.S.C. §§ 611–21 (1976). 123. 18 U.S.C. § 242 (1976). acts performed under color of state law, and private persons acting in concert with federal officials are deemed to act under color of law. 124 As discussed above, 125 it is clear that aliens residing in the United States are entitled to basic constitutional protection. The use of the phrase "inhabitant" in section 242, rather than the more restrictive term "citizen" used in section 241, coupled with the Supreme Court's recognition that resident aliens are entitled to constitutional protection to render section 242 applicable to actions by federal officials who violate an alien's first amendment rights. A more serious obstacle to the application of 18 U.S.C. § 242 is the requirement that the defendant acted willfully. In Screws v. United States, 126 the Supreme Court ruled that to sustain a conviction under section 242, the prosecution must prove that the defendant intentionally acted to deprive the victim of a constitutional right. To act "willfully," the Court held in Screws, is to act “in open defiance or in reckless disregard of a constitutional requirement which has been made specific and definite. "127 In the cases following Screws, however, some uncertainty has arisen as to whether the "intent" requirement under section 241 is subjective or objective. A minority of courts have ruled that a defendant in a section 241 prosecution must subjectively intend to violate his victim's rights. 128 The majority of courts have recognized, however, that a defendant may be presumed to intend the probable and foreseeable consequences of his actions. 129 Most courts have ruled that the intentional commission of an act which a defendant knows or should know is violative of a victim's constitutional rights will provide the basis for a section 241 prosecution. They have further declined to hold that a defendant's good faith belief in the legality of the action constitutes a defense. 130 Under the hypothetical, CIA officials who trained THRUSH agents and were on notice that THRUSH was likely to use its newly acquired skills in violation of United States law exposed themselves to liability as facilitators under section 242.131 Knowledge by the target of un 124. United States v. Guest, 383 U.S. 745 (1966); United States v. Price, 383 U.S. 787 (1966). See supra text accompanying note 122. 125. See supra note 68. 126. 225 U.S. 91 (1945). 127. Id. at 105. 128. See, e.g., United States v. Shafer, 384 F. Supp. 496 (N.D. Ohio 1974). 129. See, e.g., Koehler v. United States, 189 F.2d 711 (5th Cir. 1951). 130. See, e.g., United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976); United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976); United States v. Stokes, 506 F.2d 771 (5th Cir. 1975). 131. The Department of Justice has never been enthusiastic about proceeding criminally against federal violators of these statutes, even in the case of clear-cut violations. An interde lawful government activity is not a precondition to a section 242 conviction. 132 Section 242 would also impose liability on THRUSH agents. ii. Civil Liability Under 42 U.S.C. 1985(3) Section 1985(3) of title 42, United States Code, provides: If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws. . . [and] in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege as a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages . . . .' "133 Enacted in 1871, this statute provides a cause of action against activity which interferes with fourteenth amendment rights. Traditional tort liability standards apply. 134 A defendant is liable for the natural and probable consequences of his actions. 135 Proof is required by a preponderance of the evidence rather than proof beyond a reasonable doubt. 136 The Supreme Court has held that section 1985(3) requires a “class partmental committee appointed by Attorney General Saxbe in January, 1974 to look at COINTELPRO activities reached the following conclusion: While as a matter of pure legal theory it is arguable that these programs resulted in Section 241 violations, it is the view of the committee that any decision as to whether prosecution should be undertaken must also take into account several other important factors which bear upon the events in question. These factors are: first, the historical context in which the programs were conceived and executed by the Bureau in response to public and even Congressional demands for action to neutralize the self-proclaimed revolutionary aims and violence-prone activities of extremist groups which posed a threat to the peace and tranquility of our cities in the mid and late sixties; second, the fact that each of the COINTELPRO programs was personally approved and supported by the late Director of the FBI; and third, the fact that the interferences with First Amendment rights resulting from individual implemented program actions were insubstantial. Under these circumstances, it is the view of the committee that the opening of a criminal investigation of these matters is not warranted. Report of the Subcomm. on Secrecy and DiscLOSURE, Supplementary Detailed Staff Report on Intelligence Activities and the Rights of Americans, Book III, infra note 179, at 74. 132. United States v. Liddy, 542 F.2d 76 (D.C. Cir. 1976). 133. 42. U.S.C. § 1985(3) (1976). 134. City of Newport v. Fact Concerts, Inc., 453 U.S. 247, 258 (1982); Owen v. City of Independence, 445 U.S. 662, 635 (1980); Carey v. Piphus, 435 U.S. 247, 257–59 (1978); Imbler v. Pachtman, 424 U.S. 409, 417 (1976). 135. Monroe v. Pape, 365 U.S. 167, 187 (1961). 136. Gamble v. University of Minnesota, 639 F.2d 452, 453 (8th Cir. 1981). |