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Liaison and the Law: Foreign Intelligence Agencies' Activities in the United States
Michael J. Glennon*
A student leaves his country, a United States ally infamous for its human rights violations, to attend college in the United States. He socializes with fellow nationals on campus. Discussions center on repression in his homeland, and he joins an anti-regime organization. Through it, he attends meetings, distributes pamphlets, and joins demonstrations. But he soon hears of dissident friends who, upon returning home, are confronted with detailed accounts of their activities in the United States and are imprisoned and tortured. So he withdraws into silence, leaving dissent to the foolhardy. For him, the majesty of the first amendment exists only in government propaganda.
In recent years, concern has arisen among people in the United States that certain states “friendly” to the United States engage in activities within this country that are inconsistent with a congenial state of bilateral relations. The most prominent events generating
* Professor of Law, University of Cincinnati College of Law; former Legal Counsel, Senate Foreign Relations Committee. The events discussed or assumed in this article are intended as hypothetical examples of occurrences which may have particular legal consequences. Footnoted references to information available in the public record are intended merely to demonstrate the plausibility of the hypothetical examples given and are not intended to suggest the existence of additional occurrences or facts.
1. See STAFF OF SENATE SELECT COMMITTEE OF INTELLIGENCE, 95TH CONG., 2D Sess., ACTIVITIES OF “FRIENDLY” FOREIGN INTELLIGENCE SERVICES IN THE UNITED STATES: A Case STUDY (Comm. Print 1978) [hereinafter cited as COMMITTEE ON "FRIENDLY” FOREIGN INTELLIGENCE SERVICES); Investigation of Korean-American Relations: Hearings Before the Subcommittee on International Organizations of the House Comm. on International Relations, 95th Cong., 1st & 2d Sess. (1977-1978); SUBCOMMITTEE ON INTERNATIONAL ORGANIZATIONS OF THE HOUSE COMMITTEE ON INTERNATIONAL RELATIONS, 95TH CONG., 20. Sess., INVESTIGATION OF KOREANAMERICAN RELATIONS (Comm. Print 1978); Glennon, Investigating Intelligence Activities, in TETHERED PRESIDENCY 141-52 (T. Franck ed. 1981). No congressional committee has yet engaged in a comprehensive and systematic investigation of the activities of foreign intelligence agencies in the United States, nor of the ramifications of liaison between the United States intelligence community and foreign intelligence agencies. The “Rockefeller Commission” decried the invasion of individual rights in the United States by foreign intelligence agencies, but referred only to the domestic activities of hostile, communist states. Commission on CIA Activities Within the U.S., Report to the President 7-8 (1975).
REPRINTED FROM HARVARD INTERNATIONAL LAW JOURNAL
such concern have included the assassination of the Chilean diplomat Orlando Letelier, the operations of the Korean Central Intelligence Agency, and the death of an American professor allegedly murdered in Taiwan because of his dissident activities in the United States. 2 Less publicized are charges that foreign intelligence agents have harassed, intimidated, and monitored dissident students and emigres located in the United States. In addition, concern has arisen that certain states less friendly to the United States engage in similar activities. The Libyan government, for example, allegedly supported an assassination attempt in Colorado.4 It is asserted that elements of the United States intelligence and law enforcement community acquiesced, if not actively cooperated, in some of these activities. Public apprehension has thus arisen that not all residents of the United States are secure in the exercise of their constitutional rights.
This Article explores the international and domestic legal framework applicable to the problem. It identifies weaknesses in the existing legal structure and makes specific proposals for change in administrative practice as well as federal law. The Article argues for a fundamental change in diplomatic policy by contending that the United States cannot support or acquiesce in the systematic imposition of sanctions by foreign governments on United States residents for political activ
2. On July 3, 1981, the body of Wen-Chen Chen, a professor at Carnegie-Mellon University in Pittsburgh, Pennsylvania was found at the National Taiwan University, in Taipei. Taiwan security officials said he had committed suicide because he had confessed to anti-government activity and feared imprisonment. An autopsy revealed 13 broken ribs, a broken spine, a broken pelvic bone and internal injuries, and also revealed that he died six and a half hours after being released from interrogation (which, according to Taiwan officials, lasted 13 hours). N.Y. Times, July 21, 1981, at A2, col. 3. See Hearings on Taiwan Agents in America and the Death of Professor Chen Wen-Chen Before the Subcomm. on Asian and Pacific Affairs of the House Comm. on Foreign Affairs, 97th Cong., 1st Sess. (1981) [Taiwan Agents in America); S. REP. No. 141, 96TH CONG., 1st SESS. (1979); Cyert, Death Chills a Campus, N.Y. Times, Aug. 27, 1981, at A25, col. 1; Professor Chen Goes Home, NEWSWEEK, Aug. 3, 1981, at 49.
3. Amnesty International has reported such activities as those of the Iranian secret police agency SAVAK:
SAVAK's activities extend beyond Iran to all countries which have sizeable Iranian communities. In particular, Iranian students studying abroad are subject to surveillance; Amnesty International (AI) is aware of instances in which students have been arrested and imprisoned upon their return to Iran, presumably because of their participation in political
activities while abroad. Iran, Amnesty International Briefing 2 (Nov. 1976).
This was not the first time that Amnesty International reported coercion of Iranians living abroad by SAVAK. In June 1976, for example, it said that "[t]here has been an identifiable increase in the repression of opposition within Iran and an extension of the activities of SAVAK
.. to states in which Iranians are living abroad, in an attempt to prevent criticism of the Iranian regime." AMNESTY INTERNATIONAL, THE AMNESTY-INTERNATIONAL REPORT, 1 JUNE 1975-31 MAY 1976 (1976). See also The SAVAK-CIA Connection, THE NATION, Mar. 1, 1980, at 229-30.
4. N.Y. Times, Dec. 5, 1981, at 1, col. 1; Gaddafi's Western Gunslingers, TIME, Nov. 16, 1981, at 33.
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
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”6 operating under diplomatic cover,” THRUSH engages in covert intelligence collection and various specific covert actions.
THRUSH's intelligence collection efforts are targeted primarily at dissident students seen as hostile to the regime.8 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, 1980)(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 Al, 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”12 the more vocal dissidents. Generally, THRUSH awaits their return home, whereupon many are imprisoned and tortured. 13 For the more egregious offenders, however, there is a more immediate response. At a minimum the offenders are told by anonymous callers 14 that if they continue seditious activities, they, or relatives back home, will suffer bodily harm.is 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
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