ity. In addition, the Article stresses that national security suffers when fundamental constitutional protections are sacrificed for its preservation. The Article concludes that curbing the activities of foreign intelligence services which restrict free speech in the United States would actually strengthen national security.

Hypothetical

Consider the following hypothetical facts:

The student described above' has heard rumors concerning the presence of THRUSH-Tinaria's secret police-in the United States,

5. The hypothetical student might have read the Honolulu Advertiser which has described, in a series of articles, the activities of the Kuomintang Party (KMT) against Taiwanese students studying at the University of Hawaii.

The spying program was reportedly administered through the KMT's Standing Committee on the Manoa campus, in conjunction with the Taiwanese Consulate. University students were paid 50 dollars for each report on other students suspected of disloyalty to KMT policies; the chairman of the committee received a monthly stipend from the consulate of two to three hundred dollars plus expenses.

KMT agents were asked to report on "personal associations, public or private statements, extracurricular activities or even reading habits" of their targets. Those Taiwanese targeted feared that their passports would not be renewed. Additionally, they feared they would "be interrogated, followed or denied jobs when they return[ed] home. . . . In at least one case, a student's faculty adviser reportedly was visited by the Investigation Bureau in Taiwan in connection with the student's behavior [at the University of Hawaii.]" Their fears were not groundless. In 1968, a student was sentenced to seven years imprisonment when he returned to Taiwan based on his political activities in Hawaii. Miller & Sussman, Students at UH and EWC Report Taiwan Is Using Spying Pressure, Honolulu Advertiser, May 30, 1978. For additional details about Chen Yu-hsi, the student imprisoned, see Miller, Isolated by Pro-Taiwan Students, Honolulu Advertiser, June 18, 1978. Chen commented that many Taiwanese hesitated to return to their homeland because they knew or suspected that their United States activities were chronicled by the KMT. Honolulu Advertiser, June 20, 1978, at 1.

KMT activities were apparently not limited to the University of Hawaii; rather, they were part of a nationwide surveillance effort. At a minimum, the KMT's spy network encompassed these campuses: Columbia, Cornell, Iowa State University, Massachusetts Institute of Technology (MIT), Princeton, State University of New York, University of California at Berkeley, University of Chicago, University of Florida, University of Minnesota, and University of Wisconsin at Madison. Honolulu Advertiser, May 30, 1978. See Taiwan Agents in America, supra note 2, at

2.

Local and university newspapers elsewhere described the ubiquitous nature of the KMT network. See, e.g., Adam, Taiwanese Here Fear Murder, Michigan Daily, July 9, 1981 (University of Michigan at Ann Arbor) (reporting, among other things, that a former University of Minnesota student was sentenced to fourteen years of prison upon her return to Taiwan); Rhodes, Students Charge KMT Spying, Chicago Maroon, May 21, 1976 (University of Chicago); Swislow, Desperate KMT Losing Legitimacy, Daily Cardinal, May 21, 1976 (University of Wisconsin at Madison); McNeil, Taiwanese Spies in U.S. Universities, Daily Californian, Mar. 15, 1976 (University of California at Berkeley) (reporting that a former University of Wisconsin student was imprisoned for five years when he returned to Taipei to visit his family); Perez, UF Students Report Spying Pressure, Gainesville Sun, May 9, 1976 (University of Florida); Panagoulias, Taiwan Informers' May Be on Campus, Cornell Daily Sun, May 6, 1976, at 1 (Cornell University); McNamee, Evidence of Taiwan Spy Network Found, The Tech, May 5, 1976 (M.I.T.); Brown, Spies Watch U Taiwanese, Discourage Disloyalty, Minnesota Daily, Apr. 20, 1976; Eisen, MIT Investigates Spying Charges, The Tech, Apr. 2. 1976 (MIT).

but has no first-hand knowledge of it. THRUSH is not only present, but quite active. Directed by "case officers" operating under diplomatic cover,' THRUSH engages in covert intelligence collection and various specific covert actions.

8

THRUSH's intelligence collection efforts are targeted primarily at dissident students seen as hostile to the regime. THRUSH gathers its information through a Tinarian network of student informants, who are recruited through cash payments, and scholarship assistance. 10

6. The training of a "case officer", an espionage term describing the key figure in charge of others who collect intelligence, includes "agent assessment, agent recruitment, agent handling, and agent termination." J. SMIth, Portrait of a Cold Warrior, 124–25 (1976).

7. In a 1978 issue, Time magazine claimed that 24 per cent of the Soviet diplomats assigned to embassies in Western Europe were KGB agents and that about 35 per cent of the 136 officials stationed at the Soviet Embassy in Washington were KGB staff members. Bittman, Soviet Bloc 'Disinformation and Other Active Measures', in INTELligence Policy and National Security 217-18 (R. Pfaltzgraff, Jr., U. Ra'anan & W. Mulberg eds. 1981). See also Foreign Agents in America--Shady Tactics and Worse, U.S. NEWS & WORLD REP., July 4, 1977, at 23 (over 400 Soviet officials in the United States identified with the KGB or GRU). Likewise, at one time there were "at least eighteen KCIA agents with diplomatic or consular titles operating out of the Washington embassy or South Korea's several consulates in the United States;" moreover, these tallies may have been low. Hanrahan, Foreign Agents in Our Midst, THE Progressive, Nov. 1977, at 34.

8. In a television interview, the Shah of Iran disclosed that a network of SAVAK agents existed in the United States to check up "on anybody who becomes affiliated with circles, organizations, hostile to my country," including Iranian students. The Iran File, 60 Minutes, vol. XII, no. 25 (transcript of television program broadcast Mar. 2, 1980X(on file at Harvard International Law Journal), at 7. The Shah responded affirmatively when asked if SAVAK functioned "with the knowledge and consent of the United States government." Id.

A former South Korean ambassador to the United States, Hahm Pyong-Choon, also confirmed KCIA activities in the United States. His caveat-that the KCIA "used goon psychology and tactics... but that does not mean it was policy'"- -was ineffective, at least from his government's viewpoint. Hahm lost his ambassadorial post, and his remarks were characterized as a result of a "misunderstanding." Hanrahan, supra note 7, at 32.

9. See supra note 5.

10. See Marwick, The Letelier-Moffitt Murder: Foreign Intelligence Agencies at Work in the U.S., FIRST PRINCIPLES, Oct. 1976, at 9 (asserting that many SAVAK agents were "Iranian students at American universities who became SAVAK informers as a condition for getting Iranian government scholarships"). See also Hanrahan, supra note 7, at 35 (student refusing to report on his fellow students at George Washington University lost his scholarship); Sale, SAVAK Said at Work in Washington: Iranian Secret Police Agents Strike Fear Among Students, Wash. Post., May 10, 1977, at A1, col. 6 (SAVAK told student to spy or lose his financial assistance after his “political" discussion group with other Iranians had been “penetrated" and his face photographed during a demonstration); see also Rose, The Shah's Secret Police Are Here, NEW YORK, Sept. 18, 1978, at 48-49.

Not all informants were legitimate students. One Iranian who wished to leave Iran was denied a passport:

'I was recruited by SAVAK in Tehran was arrested in a mosque for taking a leaflet that criticized the Shah. After that, I lost my job. For months I would be fired from a job days after I was hired. No explanation was ever given . . . . They pointed to my record. I was practically penniless. Finally, SAVAK called me in and one of their officers said, "You want to go to America? Good. We will see that you get to America. But you must help us." He told me that I must spy on Iranian students in America. I didn't have a choice.'

The information so gathered is placed in computers in the Embassy and transmitted to THRUSH headquarters in Tinaria." There, specific plans are made to "counter"" the more vocal dissidents. Generally, THRUSH awaits their return home, whereupon many are imprisoned and tortured. For the more egregious offenders, however, there is a more immediate response. At a minimum the offenders are told by anonymous callers that if they continue seditious activities, they, or relatives back home, will suffer bodily harm. 15 Frequently, relatives are attacked or imprisoned by THRUSH. 16 In a few cases, the student is killed in the United States, but in a manner suggesting that the death was unconnected to his political beliefs or activities. This minimizes diplomatic repercussions. 17

14

Rose, supra, at 46.

Generally, such "agents" are asked to join dissident groups, see Committee on "FRIENDLY" Foreign Intelligence Services, supra note 1, at 10, and to report to case officers on the dates and places of meetings, topics discussed, and, most important, their members—names, employment, political philosophy, and activities, see I Spied For The Shah, RESISTANCE, Jan. 1977, at 32; Cohen, SAVAK: From Iran With Fear, Boston Phoenix, Apr. 26, 1977, at 6.

11. Information compiled on Taiwanese students in the United States was reportedly transmitted to the headquarters of the Taiwan Garrison Command located in Taipei. A "decision to take action against a visiting individual or to call him in for interrogation [upon his return home] depends largely upon a review of his file kept by the TGC." Taiwan Agents in America, supra note 2, at 9, 12.

12. These plans may include denial of visas to return home, property confiscation, family harassment (parents or siblings not promoted or even fired), and death. Id. at 8.

13. According to an American citizen who had lived in Taiwan and been close to Chinese students,

[s]tudents from Taiwan... live a life of paranoia, never being safe to speak openly about their country with others. They always fear the "professional students" and other secret Nationalist agents in university communities who are paid to report back to the government about their speech and actions. They fear that their families may suffer if they say or do the wrong thing, and also that they themselves may be imprisoned or worse when they return home after completing their studies.

Id. at 25-26. See supra note 5. Amnesty International reported that dissident Iranian students were arrested and jailed once back in Iran, apparently in retaliation for their political activities while away from home. Iran, AMNESTY INTErnational BriEFING 2 (November, 1976).

14. See Cohen, supra note 10.

15. See infra notes 17 and 18. See also COMMITTee on “Friendly" Foreign IntELLIGENCE SERVICES, supra note 1, at 11-12 (KCIA goals in the United States included plans “to intimidate 'uncooperative' Korean residents in the United States through their families, relatives and close friends in Korea, to silence dissidents and to make silent ones more 'cooperative'") (statement of Lee Jai-Hyon). A dissident Iranian poet living in the United States discovered that his remarks for the entire academic year had come to the attention of SAVAK, as had his niece who was subsequently arrested and tortured. LaVoy, Foreign Nationals and American Law, SOCIETY, Nov.Dec. 1977, at 59.

16. Even death is a possibility. Primitivo Mijares exiled himself in the United States and gave speeches which severely criticized the regime of Ferdinand Marcos. His fifteen year old son was later kidnapped and murdered. Whether the father's activities and the son's murder were related is unclear. N.Y. Times, June 19, 1977, at 11, col. 1.

17. See Marwick, supra note 10, at 9 (“[t]he most serious allegation to surface thus far against SAVAK operations in the United States is that they were responsible for the mysterious death by 'suicide' of Persian students who have been vigorously anti-Shah"). See also Taiwan Agents in

The ultimate sanction, termination, is contemplated only for highly visible and successful anti-state propagandists. 18 The hypothetical student dissident has also heard rumors of various forms of United States support for THRUSH, but again has no first-hand knowledge of this. 19 In fact, the Central Intelligence Agency (CIA) contributed significantly to THRUSH's establishment. 20 THRUSH keeps CIA officials partially informed concerning its activities in the United States, and Federal

America, supra note 2, at 27 ("If a professor [Wen-Chen Chen] from a prestigious American university can meet a mysterious death without the cause of death being made clear, no student is safe. Each one who has spoken against the KMT may become a suicide or the victim of an accidental death.").

18. See COMMITtee on "Friendly" Intelligence Services, supra note 1, at 9–10 (KCIA contemplated using United States criminals to kill the leading South Korean opposition candidate to Park Chung-hee while candidate was visiting in the United States). In our hypothetical example, such persons may include political organizers, lobbyists, broadcasters, see Halloran, Korean Dissidents in Washington Report Threats by Seoul's Agents, N.Y. Times, May 22, 1977, at 16, col. 2, newspaper publishers, id., and college professors, see supra note 2. Because of the planning, expense, and political risk entailed, murder is the covert action least favored; in contrast, bribery, see Hanrahan, supra note 7, at 33; extortion, id. at 33 and Kerr, The Future of Taiwan, Honolulu Advertiser, July 1, 1978; burglary, see Anderson & Whitten, U.S. Is Said to Aid Shah's Police, Wash. Post, Aug. 20, 1977, at B11, col. 3 and Anderson & Whitten, Iranian Secret Police Dirty Tricks, Wash. Post, Oct. 29, 1976, at D15, col. 3; and physical harassment and surveillance, can be and are used with great effect. But when circumstances require, THRUSH does not hesitate to assassinate "enemies of the state," including United States citizens, see, e.g., The Iran File, supra note 8, at 7.

19. Such knowledge is unsettling:

For years, after all, KCIA agents roamed the United States more or less at will, shadowing their exiles. Korean residents on the West Coast were so intimidated by KCIA reprisals that they refused to inform American police authorities that KCIA agents here were extorting money from them like Mafia goons. Why should these Korean exiles take the risk by talking? After all, who helped set up the Korean Central Intelligence Agency? T. PLATE & A. Darvi, Secret Police 276 (1981).

20. For an account of the CIA role in the founding and training of the Iranian secret police, SAVAK, see W. SULLIVAN, MISSION TO IRAN 21-22, 95-96 (1981). Although the training provided SAVAK focused primarily on basic police work designed to perfect intelligence and counterintelligence methods, special care was taken to develop expertise “in the analysis of Soviet techniques and, above all, in the detection of sophisticated Soviet electronic espionage." Id. at 96. See also J. DINGES & S. LANDau, assassinatioN ON EMBASSY ROW (1979) (describing, inter alia, CIA assistance in the founding of the Chilean secret police, DINA).

For two other discussions of CIA training of members of foreign intelligence agencies, see T. Powers, The Man Who Kept the Secrets 61, 307 (1979)discussing reports that the CIA trained secret police in Vietnam, Laos and Cambodia); and Anderson, U.S. Helped Train Amin Henchmen, Wash. Post, July 12, 1978, at D28, col. 3 (ten Ugandan "henchmen" of Idi Amin were trained by the CIA at a school in Georgetown).

The CIA is not the only intelligence agency reportedly offering training to other intelligence agencies. For example, Israel's MOSSAD helped instruct Iran's SAVAK, while Brazil's DOPS instructed Chile's DINA and Uruguay's DNII. A collaborative intelligence arrangement exists between Chile's DINA, Argentina's SIDE, and Paraguay's Investigaciones. Instances of other intelligence arrangements have been chronicled. T. Plate & A. Darvi, supra note 19, at 59– 60.

The International Police Academy (IPA) in Washington was an example of a training facility run by the CIA. Those states taking training at the IPA included Chile, Nicaragua, Panama, Guatemala, Mexico, Brazil, the Philippines, Hong Kong, Belize (then British Honduras), Korea, Paraguay, Peru, Iran, and Uruguay. Agents from these states enrolled in the "Technical Investigation Course" which involved classroom work in Washington and fieldwork at the Border

Bureau of Investigation (FBI) reports to the CIA fill in most of the gaps. The CIA makes no objection to the continuation of those activities. It fails to transmit to the State Department any particulars of its tacit agreement with THRUSH.21

The CIA is fully aware that the information gathered by THRUSH or given to THRUSH by the FBI is used to identify those targeted for "countering,' ,"22 and the CIA so informs the FBI. Neither United States agency23 gives this consideration any weight when formulating policy concerning liaison with THRUSH.24 Each regards its current relationship with THRUSH as rewarding. THRUSH provides intelligence information both from within and without the United States Patrol Academy in Los Fresnos, Texas. Fieldwork lectures were given by CIA agents. Id. at 53– 56.

The IPA was founded by the United States Agency for International Development. Damaging publicity forced the academy to close. The IPA had earned the reputation for being the "School for Torturers," although this was denied by the IPA. See id. at 54, 163–64, 347–51 n.7. The United States, however, did not go out of the business of training foreign intelligence agents. Rather, it turned to alternative means. In 1968, the Federal Police Academy, a recipient of United States monies, opened its doors in Brazil to train Chile's DINA agents, who in turn instructed anti-Castro Cubans living in Costa Rica, Guatemala, and Nicaragua. Id. at 53–56. Given that it is quite likely torture was taught, at least informally, at the IPA, it is reasonable to assume that American-acquired torture skills were put to use in the home states of trainees. Furthermore, it follows that other skills, including surveillance and harassment techniques, were employed against citizens in the home state. It is not a quantum leap to posit that dissident emigres from the trainee state living in the United States probably have been subject to those skills.

Other skills taught by the CIA include agent recruitment and handling, physical and electronic surveillance, surreptitious entry, methods of infiltration, and assassination and torture techniques. See T. POWERS, supra, at 126.

21. CIA failure to notify the State Department would constitute a violation of the Case Act. See infra text accompanying notes 49-52. One author has noted, however, that "[f]rom the CIA's point of view the Secretary of State's office was about as secure as the floor of Congress with a full press gallery." T. POWERS, supra note 20, at 130.

22. It has been suggested that George Bush, when CIA Director, knew of the DINA operation against Orlando Letelier in the United States, yet chose not to dissuade DINA from its goal. T. PLATE & A. DARVI, supra note 19, at 275. However, after the assassination, the FBI conducted so exemplary an investigation that DINA officials were reportedly quite uneasy. Id. Cf. Marwick, supra note 10, at 5.

23. It has been alleged that the FBI also maintains "liaisons" (a term of art describing "the interchange of intelligence of mutual interest [between] two governments," see W. SULLIVAN, supra note 20, at 97) with foreign intelligence agencies, primarily for exchange of information and training. The FBI has acknowledged that it maintained a liaison relationship with SAVAK and that it accepted information from SAVAK. In a 1977 letter to the American Civil Liberties Union, FBI Director Clarence K. Kelley wrote that "we have established liaison with SAVAK officers who have contacted our field offices," and that "we accept any information which is volunteered." Letter from Clarence M. Kelley, Director, FBI, to Aryeh Neier, Executive Director, and Jack D. Novik, National Staff Counsel, ACLU (Dec. 23, 1977) (on file with author).

See also Anderson & Whitten, U.S. Is Said to Aid Shah's Police, Wash. Post, Aug. 20, 1977, at B11, col. 3 (“An FBI official acknowledged that Mansur Rafizadeh [the principal representative of SAVAK in the United States] was a 'foreign liaison source' of the FBI.").

24. Besides "official" United States foreign policy, other facts may explain why United States agencies fail to restrict the activities of friendly agents. Consider first the personal reaction of United States officials toward foreign dissidents. Because these officials "deal only with the regime in power . . . and actively support that regime against foreign threats and internal