b. Congressional Will

Under the fluctuating powers analysis, the second category11 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).

based, invidiously discriminatory animus" behind the action. 137 Courts have found "victim classes" in many groups analogous to that of foreign student dissidents. These include supporters of a given candidate, 138 environmentalists, 139 striking teachers, 140 student members of a political organization, 141 and dissenting union members. 142

iii. The Alien Tort Claims Act

Section 1350 of title 28, United States Code, confers original jurisdiction on the federal district courts over "any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. "143 The Alien Tort Claims Act (the "Act") removes the diversity bar operating against emigres by allowing them to sue alien defendants. Although the courts have construed the Act's reference to the "law of nations" as requiring a finding of some impact on United States foreign relations, 144 the Act appears to open the doors of the federal courts to private actions challenging violations of rights recognized by international law. 145 Jurisdiction under section 1350 would extend to violations of the sort discussed above. 146

137. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).

138. Cameron v. Brock, 473 F.2d 608 (6th Cir. 1973); Richardson v. Miller, 446 F.2d 1247 (3d Cir. 1971).

139. Westberry v. Gilman Paper Co., 507 F.2d 206 (5th Cir. 1975), vacated as moot, 507 F.2d 215 (5th Cir. 1975).

140. Bradley v. Clegg, 403 F. Supp. 830 (E.D. Wis. 1975).

141. Brown v. Villanova Univ., 378 F. Supp. 342 (E.D. Pa. 1974).

142. Local No. 1, International Brotherhood of Teamsters v. International Brotherhood of Teamsters, 419 F. Supp. 263 (E.D. Pa. 1976).

It is worth noting that civil remedies could also include a Bivens cause of action. The claim takes its name from Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), in which the Court upheld an action for damages for an invasion of constitutionally protected rights even though the Congress had not expressly authorized a particular remedy. Bivens itself involved an action for damages arising under the fourth amendment, and it was not immediately clear whether actions based upon other constitutional provisions would also be recognized by the Court. In Davis v. Passman, 442 U.S. 228 (1979), and Carlson v. Green, 446 U.S. 14 (1980), however, the Court appeared to hold that most if not all of the Constitution's substantive provisions will support a private action for damages. But unlike section 242, a Bivens action apparently will be subject to good faith defenses. Butz v. Economou, 438 U.S. 478 (1978); G.M. Leasing Co. v. United States, 629 U.S. 338 (1977).

143. The Alien Tort Claims Act, 28 U.S.C. § 1350 (1976).

144. See, e.g., Valange v. Metropolitan Life Ins. Co., 259 F. Supp. 324, 328 (E.D. pa. 1966).

145. In Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980), a United States District Court was found to have validly exercised subject matter jurisdiction in an action under section 1350 between two Paraguayan nationals for wrongful death by torture contrary to international law. See Blum & Steinhardt, Federal Jurisdiction Over International Human Rights Claims: The Alien Tort Claims Act After Filartiga v. Pena-Irala, 22 HARV. INT'L. L.J. 53 (1981); Conn, The Alien Tort Statute: International Law as the Rule of Decision, 49 FORDHAM L. Rev. 874 (1981). 146. See supra text accompanying notes 143-45.

As to the possibility that a defense of sovereign immunity might be raised either by the United States or by a private party defendant, the Foreign Sovereign Immunities Act provides

that

iv. Treaties of Friendship, Commerce, and Navigation.

Treaties of friendship, commerce, and navigation exist with a number of foreign states. 147 These agreements often guarantee that nationals of each state, “individually or through associations . . . have the right to gather and transmit information" in the other state and "to communicate with other persons inside and outside such territories."148 Commonly, nationals of one state must "receive the most constant protection and security" within the territory of the other, 149 and these treaties further prohibit each state from applying unreasonable or discriminatory measures that would impair the acquired rights and interests. 150

Although some treaties do not "imply any right to engage in political activities, "151 that prohibition seems to apply to electoral conduct, such as participation in political campaigns, and not to activities involving modes of expression guaranteed by the previous

a foreign state shall not be immune from the jurisdiction of the courts of the United States or of the States in any case . . . in which money damages are sought against a foreign state for personal injury or death, or damage to or loss of property, occurring in the United States and caused by the tortious act or ommission of that foreign state or of any official or employee of that foreign state while acting within the scope of his office or employment. 28 U.S.C. 1605(a)(5) (1976). The Act was construed in 1980 as providing no immunity to the Government of Chile in a wrongful death action brought by the widow and widower of Orlando Letelier and Ronni Moffitt. Letelier v. Republic of Chile, 488 F. Supp. 665 (D.D.C. 1980).

147. See, e.g., Treaty of Friendship, Establishment and Navigation, Feb. 23, 1962, United States-Luxembourg, 14 U.S.T. 251, T.I.A.S. No. 5306; Treaty of Friendship, Establishment and Navigation, Feb. 21, 1961, United States-Belgium, 14 U.S.T. 1284, T.I.A.S. No. 5432; Treaty of Friendship, Commerce and Navigation, Mar. 27, 1956, United States-Netherlands, 8 U.S.T. 2043, T.I.A.S. No. 3942; Treaty of Amity, Economic Relations, and Consular Rights, Aug. 15, 1955, United States-Iran, 8 U.S.T. 899, T.I.A.S. No. 3853; Treaty of Friendship, Commerce and Navigation, Apr. 2, 1953, United States-Japan, 4 U.S.T. 2063, T.I.A.S. No. 2863; Treaty of Friendship, Commerce and Navigation, Aug. 23, 1951, United States-Israel, 5 U.S.T. 550, T.I.A.S. No. 2948.

148. Iran, art. II, para. 2, 8 U.S.T. 899, T.I.A.S. No. 3853. Nearly identical language is found in United States treaties with Luxembourg, art. II, para. 4, 14 U.S.T. 251, T.I.A.S. No. 5306; Belgium, art. II, para. 4, 14 U.S.T. 1284, T.I.A.S. No. 5432; Netherlands, art. II, para. 3, 8 U.S.T. 2043, T.I.A.S. No. 3942; Japan, art. I, para. 2., 4 U.S.T. 2063, T.I.A.S. No. 2863; and Israel, art. II, para. 2, 5 U.S.T. 550, T.I.A.S. No. 2948.

149. Japan, art. II, para 1, 4 U.S.T. 2063, T.I.A.S. No. 2863. Likewise, similar provisions are stated in United States treaties with Luxembourg, art. III, para. 1, 14 U.S.T. 251, T.I.A.S. No. 5306; Belgium, art. III, para. 1, 14 U.S.T. 1284, T.I.A.S. No. 5432; Netherlands, art. VI, para. 1, 8 U.S.T. 2043, T.I.A.S. No. 3942; Iran, art. II, para. 4, 8 U.S.T. 899, T.I.A.S. No. 3853; and Israel, art. III, para. 1, 5 U.S.T. 550, T.I.A.S. No. 2948.

150. Luxembourg, art. IV, para. 2, 14 U.S.T. 251, T.I.A.S. No. 5306. Again, comparable guarantees are part of United States treaties with Belgium, art. IV, para. 2, 4 U.S.T. 1284, T.I.A.S. No. 5432; Netherlands art. VI, para. 3, 8 U.S.T. 2043, T.I.A.S. No. 3942; Iran, art. IV, para. 1, 8 U.S.T. 899, T.I.A.S. No. 3853; Japan, art. V, para. 1, 4 U.S.T. 2063, T.I.A.S. No. 2863; and Israel, art. III, para. 4, 5 U.S.T. 550, T.I.A.S. No. 2948.

151. Belgium, art. VI, para. 7, 14 U.S.T. 1284, T.I.A.S. No. 5432. Similarly, these rights also are not accorded in United States treaties with Luxembourg, art. VI, para. 4, 14 U.S.T. 251, T.I.A.S. No. 5306; Iran, art. XX, para. 2, 8 U.S.T. 899, T.I.A.S. No. 3853; and Israel, art. VIII, para. 3, 5, U.S.T. 550, T.I.A.S. No. 2948.