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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. PỌWERS, 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
which is important to national security.25 Furthermore, the CIA and the FBI are aware that if any THRUSH officer is designated as persona non grata, or if any other action is taken against THRUSH officers present in the United States, Tinaria will retaliate with sanctions against CIA personnel in Tinaria.26 Rather than risk disrupting the sensitive relationships of the CIA and the FBI with THRUSH, the State Department does not transmit to Congress any information indicative of a CIA-THRUSH agreement. Indeed, it makes a pro forma objection to THRUSH's activities in the United States, but takes no action to bring them to a halt.
II. THE LEGAL FRAMEWORK The activities of foreign intelligence agencies in the United States and their relationship to agencies of the government of the United States raise a variety of complex legal issues under both international and domestic law.
A. International Law
1. State Responsibility for Injury to Aliens In the hypothetical described above, the government of Tinaria wrongfully imprisoned and tortured individuals whom it would not
'subversion,' they tend to function according to the simpler rule, 'your enemy is my enemy."" T. PLATE & A. Darvi, supra note 19, at 276 (quoting LaVoy, supra note 15, at 63). Also important is the fraternal bond of cooperation between secret police, whether or not that cooperation is “official.” “In this atmosphere, even ideological differences of the severest kind can be subsumed to the exigencies of police work. If the FBI must respect the working prerogatives of the CIA—and it must—then by what logic can the FBI intervene in the United States operations of a foreign secret police agency? Especially when the secret police force in question ... has worked . . . closely with the CIA?” Id. at 276–77.
25. When the CIA was compiling information for its Operation CHAOS, it relied in part on data gathered by friendly foreign intelligence services on United States citizens travelling abroad. Through CHAOS, the United States Government opened 13,000 files on approximately 7200 of its own citizens hoping to develop evidence of Communist ties to the anti-war movement of the late 1960's and early 1970's. The fact of cooperation between the CIA and friendly foreign intelligence services was revealed to plaintiffs' attorneys as part of discovery in a civil suit brought against present and former government officials charged with implementation of CHAOS. The names of the cooperating agencies were deleted from the declassified documents, which were not made public. Marro, C.1.A. Data Indicate Foreign Agents Helped Spy on U.S. Citizens Abroad, N.Y. Times, Feb. 22, 1977, at 1, col. 3.
26. See COMMITTEE ON “FRIENDLY” FOREIGN INTELLIGENCE SERVICES, supra note 1, at 3. In the Senate investigation, the extent to which the United States Government should “knowingly permit any foreign intelligence officers to conduct operations in the United States” was recognized as a pivotal issue; the committee prefaced its findings by noting that
[t]he answer to this basic question is in part answered by our own need to conduct intelligence operations abroad. If the United States Government arrests or expels foreign intelligence officers or agents, then it risks foreign retaliation against U.S. intelligence
operatives, innocent U.S. citizens, or the foreign policy interests of the United States. Id.
have been able to identify but for its surveillance operations within the United States. Did the United States government breach a duty owed Tinarian aliens under international law by failing to take steps to prevent their surveillance?
Under the predominant view27 a state is responsible under international law, for injury to an alien caused by conduct subject to its jurisdiction, provided that the conduct in question is attributable to the state and wrongful under international law.28 The term “conduct" includes both acts and omissions29 attributable to the state. Conduct is wrongful if it (a) departs from the international standard of justice, 30 or (b) constitutes a violation of an international agreement. 31
Although the “international standard of justice” required is not altogether clear, the State Department has argued that, with respect to injuries caused by private persons, it is the duty of a government to “exercise reasonable care to prevent such injuries. "32 “Due diligence” is the term employed by the Harvard Draft Convention on the International Responsibility of States for Injuries to Aliens:33 “A State not only has a duty to protect aliens ... it likewise has an obligation to protect aliens in the territory of other States from wrongful acts which may have their origin within territory under its control.”34
Under the hypothetical, violations of internationally recognized human rights were perpetrated against foreign nationals upon their return to their home state. Those acts had their origin in THRUSH surveillance conducted in the United States. 35 The United States did
27. A minority of states take the position that a state need grant only equality of treatment to nationals and non-nationals to fulfill its international obligations. J. BRIERLY, THE LAW OF NATIONS, 278–79 (H. Waldock 6th ed. 1963).
28. RESTATEMENT (SECOND) OF THE FOREIGN RELATIONS Law OF THE UNITED STATES § 164 (1965).
29. Id. 30. Id. 31. Id.
32. Letter from the Assistant Legal Adviser for International Claims (English) to John W. Smetana, July 17, 1957 reprinted in 8 M. WHITEMAN, DIGEST OF INTERNATIONAL Law 738 (1970). 33. Article 13 states:
1. Failure to exercise due diligence to afford protection to an alien, by way of preventive or deterenç measures, against any act wrongfully committed by any person, acting singly or in concert with others, is wrongful:
(a) if the act is criminal under the law of the state concerned; or
world. Draft Convention on the International Responsibility of States for Injuries to Aliens, Art. 13(1), (Draft No. 12, Apr. 15, 1961) (Reporters Sohn and Baxter, Harvard Law School).
34. Id. A State may be put on notice of a special duty to protect an alien if there has been violence against him or against groups of aliens or nationals of a particular state . . . or if there have been threats of such violence and criminal conduct.” Id.
35. See infra note 42.
little to prevent those acts of surveillance and, indeed, acquiesced in
2. Sovereignty and Police Functions In the hypothetical, Tinaria's secret police, THRUSH, engaged in covert intelligence collection within the United States by gathering information about dissident students through a network of paid student informants.
Article 2(4) of the United Nations Charter provides that all members “shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state. "37 This principle was elaborated upon by the General Assembly in 1970 in the Declaration of Principles of International Law Concerning Friendly Relations and Co-operation Among States, which provides that “all . . . forms of interference or attempted threats against the personality of the State or against its political, economic and cultural elements, are in violation of international law.”39
Pursuant to these general precepts, customary international law proscribes the exercise of sovereign power within the territory of another state without its consent. 40 Police activities are a function of sovereign power. Whether enforcement activities pursued in the territory of another state would necessarily offend the sovereignty of that state is unclear. Under the prevailing view all activities related to law enforcement would offend the sovereignty of the host state. 41 A less restrictive position would proscribe only activities actually illegal under the law of the host state. Under this view, assassination or at
36. See supra text accompanying notes 21, 22. 37. U.N. CHARTER art. 2, para. 4. 38. G.A. Res. 2625, 25 U.S. GAOR Supp. (No. 28) at 121, U.N. Doc. A/8028 (1970). 39. Id. at 123.
40. S.S. Lotus (Fr. v. Turk.), 1927 P.C.I.J., Ser. A., No. 10, at 20 (“the first and foremost restriction imposed by international law upon a state is that-failing the existence of a permissive rule to the contrary-it may not exercise its power in any form in the territory of another state”). See Akehurst, Jurisdiction in International Law (1972–73), 46 BRIT. Y.B. INT'L L. 145– 51. The United States, in a note to the Soviet Embassy in Washington, dated August 19, 1948, stated that “the United States cannot permit the exercise within the United States of the police power of any foreign government." Note from Under Secretary of State Lovett to the Soviet Embassy at Washington (Aug. 19, 1948), reprinted in 8 M. WHITEMAN supra note 32, 384 (1967). The note was sent in response to the demand of the Soviet Consulate General in New York City for the return of a Soviet citizen who sought asylum in the United States. For a discussion of this incident, see Borchard, The Kasenkina Case, 42 Am. J. INT'L. L. 858 (1948). For purposes of the “waiver” of sovereign rights it would seem reasonable to view acquiescence
41. See The Schooner Exchange v. McFadden, 11 U.S. (7 Cranch) 116, 136 (1812). In Nevada v. Hall, 440 U.S. 410, 416–17 (1979), Justice Stevens, writing for the Court, favorably included Chief Justice Marshall's Schooner Exchange observation that any exceptions to a state's territorial sovereignty must be traced to the state's consent to the exceptions. Hall concerned the refusal of a California court to recognize Nevada's sovereign immunity claim, a refusal upheld by the Court.