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problem of gathering reliable information sufficient to link particular acts to a particular foreign intelligence agency. In order to sue foreign governments who harass, intimidate, or maintain surveillance of its students, a university needs to identify such governments.
At this stage, involvement by the United States government becomes both desirable and politically feasible. The United States intelligence community is capable of identifying those governments. Indeed, the Executive branch is required by law to report annually to Congress concerning the human rights practices of states receiving military assistance. 207 The annual submission and publication of these reports helps focus attention on continuing human rights violators. The procedure might well serve as a model. If what a government does to its citizens within its own territory is properly a matter of United States concern, what that government does to its citizens within the territory of the United States is a fortiori a matter of United States concern. The best way of getting information about harassment, intimidation or surveillance is to direct the executive branch to enact a country-report requirement mandating annual accounts of improper intelligence activities conducted within the United States. A great amount of detail is not necessary, and given the sensitivity of the sources and methods used to gather the information, a large measure of detail is unattainable. All that is necessary is for the educational community to know which states' secret police forces are active on United States campuses. Colleges and universities could then bring individual or collective pressure against the states in question to halt those activities.
One would hope that such action would ultimately lead to a more thorough examination of questions concerning the role played by the United States government, questions that have thus far received too little attention.
A. “Neutral Principles” and State-Sponsored Terrorism The approach suggested in this article to the problem of foreign intelligence activity in the United States consists of perhaps the two most fundamental precepts of the Reagan-Kirkpatrick foreign policy exegesis: the rejection of diplomatic double standards, and opposition to international terrorism. Ambassador Kirkpatrick, prior to assuming her position at the United Nations, called for a “realistic policy which
207. See Foreign Assistance Act of 1961, § 116(d)(1), 22 U.S.C. $ 215 1n (1976); id. § 502B(b), 22 U.S.C. $ 2304 (1976).
aims at protecting our own interest, ”208 and decried the Carter human rights policy for acceptance of “the status quo in communist nations ... but not in nations ruled by ‘right-wing' dictators or white oligarchies."209 Promising to eliminate double standards of the sort that pervaded the Carter human rights policy, former Secretary of State Haig announced that efforts to halt international terrorism would replace human rights concerns as the centerpiece of United States foreign policy.210
The Reagan Administration's response to Libyan intelligence activities in the United States points the way for effective action within the existing legal framework. Following the shooting of a Libyan student, who was warned by the FBI that he was one of 24 persons on a Libyan “hit list,” the FBI arrested a man who, police charged, was a mercenary recruited by the Libyan government.211 Two weeks after the arrest, the State Department ordered the Libyan Embassy in Washington to close down and expelled all 27 of its diplomats. 212
The Executive must move with equal alacrity in dealing with the intelligence services of less hostile states. Libyan diplomats should not serve as examples merely because Libya is a weak and rather ineffectual adversary of the United States. If the policy against terrorism is to be more than a drumbeat, it must be applied equally to all. Allowing abuse of United States good will by traditional allies would mean replacing a double standard on human rights with a double standard on terrorism.
It is not enough to apply the same principles only to the conduct of foreign states. These principles must govern the behavior of the United States as well. 213 To condemn terrorism when supported by adversaries of the United States and to condone it when supported by allies of the United States undercuts the most fundamental tenet of the international legal order, the concept of “reciprocally applicable neutral principles."214 “[S]o long as the United States (or any other nation) is committed to the rule of law rather than the rule of the jungle,” Professor Franck has written, “the duty to govern specific national conduct in accordance with neutral principles of general application is not one limited to the chambers of the International Court of Justice.”215
208. Kirkpatrick, Dictatorships and Double Standards, COMMENTARY 45, Nov. 1979. 209. Id. at 41. 210. See supra note 4. 211. Qaddafi Tied To Shooting of Libyan in U.S., N.Y. Times, May 24, 1981, § 1, at 1, col.
213. As Professor Ullman said of United States human rights policy, “Florence Nightingale's remark about hospitals is once again apposite: ‘First, they should not spread disease.'' Remarks of Professor Ullman at the First Symposium of the Allard K. Lowenstein International Human Rights Law Project, Yale Law School (April 16–18, 1982)(on file at Harvard International Law Journal).
214. T. FRANCK, THE STRUCTURE OF IMPARTIALITY 320 (1968).
The activities of THRUSH in the United States represent, in one sense, an easy case. Few foreign states are likely to engage the cooperation of the CIA so closely, operate against residents of the United States so intensely, and repress their own citizenry so brutally as to trigger the application of criminal sanctions. THRUSH's operations are usefully reviewed to show where the law draws the line on liaison relationships.
In another sense the hypothetical case of THRUSH and the CIA presents a harder set of questions. Can one set aside any law or constitutional precept for the purpose of advancing a foreign policy imperative for the preservation of the United States? Most would probably say yes, since the Constitution is not, after all, “a suicide pact."216 But neither is the Constitution a compact of convenience, providing protection for dissidents only when their activities happen to comport with the government's foreign policy objectives or its assessment of the national interest. The survival of the United States as a nation is seldom contingent upon the survival of a given authoritarian regime, and the survival of such a regime is seldom contingent upon its continuation of intelligence operations in the United States. Where such activities go beyond the pale, “the legal order would be better preserved if departures from it were frankly identified as such than if they were anointed with a factitious legality and thereby enabled to serve as constitutional precedents for future action.”217
B. The Mandate of National Security Under the best of circumstances it is no easy task to identify what is essential to this nation's security and well-being, and to devise policies based on a balance of diverse, sometimes conflicting, national goals. Governmental support or indifference towards operations in the United States by the secret police of certain foreign states reaffirms one set of vital interests, the support of states that are friendly to United States interests, while altogether discarding another vital interest, the protection of freedom of expression, the Constitution's “most majestic guarantee.”218
The guarantee of free expression is especially vital to United States foreign policy, for it is an element of the process by which it is made. It is a means of ensuring that our foreign policy reflects the genuine national security interests of the United States. Policy-makers, and those who under our form of government are entitled to affect policymakers' decisions, must receive relevant information. Justice Brennan opined:
215. Id. at 328. 216. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963). 217. A. SCHLESINGER, THE IMPERIAL PRESIDENCY 9 (1973). 218. L. TRIBE, supra note 179, at 576.
[T]he First Amendment embodies more than a commitment to free expression and communicative interchange for their own sakes; it has a structural role to play in securing and fostering our republican system of self-government . . . . Implicit in this structural role is not only “the principle that debate on public issues should be uninhibited, robust, and wide-open” ... but the antecedent assumption that valuable public debate—as well as other civic behavior-must be informed. The structural model links the First Amendment to that process of communication necessary for a democracy to survive, and thus entails solicitude not only for communication itself, but for the indispensable conditions of meaningful communication.219
The victim of the foreign secret police force is not simply its individual “target” but rather the entire body politic. National security consists of the safety of the individuals composing the state. In the United States, the law places the individual before the state; its guarantees of individual liberty, particularly free expression, are not viewed as simply another set of values to balance against others in pursuit of national security. One cannot properly weigh the “good of the state” against the good of any individual, for the scales almost invariably tilt toward the collective entity. The interest of one individual versus another individual, or of one state interest versus another state interest, are properly comparable.
But these truths are quickly forgotten against a backdrop of geopolitical games where, on boards in policymakers' minds, one anthropomorphic state befriends another, betrays another, or bedevils another. The point is too easily lost that the “state” is no more than a mental construct, an aggregate of individual interests, and that United States foreign policy is conducted for the purpose of preserving the primacy of the individual over the state. 220 To foresake that priority is to forsake the ultimate morality to which this nation can lay claim.
219. Richmond Newspapers, Inc., v. Virginia, 448 U.S. 555, 587–88 (1980) (Brennan, J., concurring). 220. As the Supreme Court said in United States v. Robel, 389 U.S. 258 (1967):
[T]his concept of “national defense” cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term “national defense” is the notion of defending those values and ideals which set this Nation apart .... It would be ironic if, in the name of national defense, we would sanction the subversion of one of those liberties—freedom of associacion—which makes the defense of
the Nation worth while. Id. at 264.
The question is whether the processes of gathering intelligence, conducting liaison arrangements, pursuing improved bilateral relationships, all intended to strengthen its national security, will subordinate, or be subordinated to, the processes provided by the Constitution to protect the individual from the state. The question is "whether, in defending our institutions, we sacrifice the values which make the defense worthwhile . . . . [T]here ought to be no real conflict between national security and human rights. An open and flourishing society is likely to be more secure in preserving its institutions than a closed and repressive one. At least that is our faith."221
It is not only our faith; it is, under our Constitution, our right, and we can demand no less.
221. Remarks by Professor Emerson at the First Symposium of the Allard K. Lowenstein International Human Rights Law Project, Yale Law School (April 10, 1982).