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tempted assassination would constitute exercises of police power in violation of international legal precepts, whereas simply following persons or infiltrating meetings would not.
a. Surveillance Leading to Sanctions Physical surveillance, in and of itself, harms no one and is not unique to police activity. In the realm of intelligence operations, however, surveillance is infrequently conducted as an end in itself. It is carried out as a means of harassing or intimidating the subject. Furthermore, surveillance provides information for use in “countering” the subject upon her return to her home state, and for acts of retaliation against her relatives. 42 Since surveillance in the United States leads directly to these acts of violence abroad and restricts the exercise of free speech by other nationals of that state living in the United States, 43
surveillance would seem to interfere with the sovereignty of the United States.
b. The Question of Consent Police activities conducted in the United States by foreign intelligence agencies are an offense against United States sovereignty unless the United States consents to them. Did the United States in the hypothetical described above consent to the performance of police functions in its territory by THRUSH? Under the hypothetical facts the CIA (and to some extent the FBI) and THRUSH were engaged in a symbiotic relationship. The consequences of this pattern of cooperation, under both international and domestic law, depend in part upon whether it constitutes an agreement.
i. Did An International Agreement Exist?
The International Court of Justice has ruled that a state may be bound legally in some circumstances without an exchange of express
42. An Amnesty International report describes Iranian legislation under which Iranians have been held upon their return home:
[T]he Act for the punishment of persons acting against the security and independence of the state (1931) provides for the punishment of persons “forming or belonging to organizations opposed to the monarchy, or having a collectivist ideology” [and those] “acting against the constitutional monarchy outside Iran.” Sentences under these articles range from three years' imprisonment to death. A report in Kayhan, Teheran's largest daily newspaper, on 20 August 1975 stated that penalties for some of the above offences were to be increased. In practice this would mean that an Iranian who returned to Iran from abroad could be sentenced to life imprisonment, solely for participation in political activities outside Iran .... [Q]uite apart from the shortcomings of the legal system ... this legislation is so
loosely interpreted that it can be used to punish even the mildest opposition to the regime. Amnesty International Briefing, supra note 3, at 2.
43. See infra text accompanying notes 73–76.
promises. 44 Accordingly, the State Department will examine this possibility when determining what constitutes an agreement.45 "[A]gency level agreements are international agreements .... [T]he fact that an agreement is signed by a particular department or agency of the United States Government is not determinative. Agencies can and do bind the United States Government in international law ....946 Moreover, the so-called “Rush Letter”47 requires all government agencies to transmit to the State Department “any agreements of political significance . . . and any that involve .continuing or substantial cooperation in the conduct of a particular program or activity ... including the exchange or receipt of information and its treatment.”48 One may reasonably conclude that the pattern of conduct characterizing the relationship between THRUSH and the CIA, under the hypothetical, implied an international agreement.
ii. The Case Act Under the hypothetical the CIA did not inform the State Department of any agreement it made with THRUSH. The Case Act49 provides that:
The Secretary of State shall transmit to the Congress the text of any international agreement (including the text of any oral international agreement, which agreement shall be reduced to writing) other than a treaty, to which the United States is a party as soon as practicable after such agreement has entered into force with respect to the United States but in no event later than 60 days thereafter. 50
The parenthetical phrase was added to the Act in 1978.51 The Senate Foreign Relations Committee explained that the purpose of the amend
44. Nuclear Tests (Austl. v. Fr.), 1974 I.C.J. 253; Nuclear Tests (N.Z. v. Fr.), 1974 I.C.J. 457. See also Franck, Word Made Law: The Decision of the ICJ and the Nuclear Test Cases, 69 Am. J. INT'L L. 612 (1975).
45. State Department Airgram to All Diplomatic Posts Concerning Criteria for Deciding What Constitutes an International Agreement (March 9, 1976), reprinted in 1 M. GLENNON & T. FRANCK, UNITED STATES FOREIGN RELATIONS Law 14 (1980).
Id. Other criteria are the significance of the arrangement; requisite specificity, including objective criteria for determining enforceability; the necessity for two or more parties to the arrangement; and form. There probably were not, in this instance, any “objective criteria for determining enforceability,” and the customary form—"style, final clauses, signatures, entry into force dates, etc.”— clearly was not used. On the other hand, “[i]f the general content and context reveal an intention to enter into a legally binding relationship, the lack of proper form will not be decisive." Id.
ment was to “require the transmission of intelligence-sharing and intelligence liaison agreements, many of which are oral.”52
If an international agreement were found to exist, the law would require that the text be transmitted to Congress. In the hypothetical above, no such transmittal occurred.
iii. Liaison Agreements and Human Rights Under international law, the CIA-THRUSH agreement is probably invalid. First, precepts of the sort set forth in the 1948 Universal Declaration of Human Rights53 are binding on states as part of customary international law. 54 Acquiescence by the United States government in THRUSH activities in the United States (activities that led to arrest, torture, cruel, inhumane and degrading punishment, and prolonged Tinarian detention without charges or trial) would constitute a violation. If the Universal Declaration of Human Rights is viewed as a legal adjunct to the United Nations Charter, and thus as a binding treaty obligation,ss article 103 of the Charter would void
52. S. Rep. No. 842, 95TH CONG., 2D Sess. (1978), reprinted in 1 M. GLENNON & T. FRANCK, supra note 45, at 177.
Upon passage of the bill by the Senate, the Deputy Director of the CIA, Frank Carlucci, wrote the Chairman of the Senate Foreign Relations Committee to “express the concerns” of the Agency about the provision. Mr. Carlucci continued:
[I]n terms of intelligence equities, the provisions of section 501 of S. 3076 that relate to oral agreements could have a serious negative impact on intelligence activities conducted pursuant to the Director's authority which may involve, for example, liaison relationships with foreign counterparts. This impact could extend not only to the Director's liability to protect sensitive intelligence information from disclosure, but to our ability in the first instance to maintain certain authorized intelligence relationships, which are dependent on the willingness of foreign entities to deal with us. For these reasons, we would oppose
inclusion in legislation of the provisions . . . relating to oral agreements. Letter from Frank C. Carlucci, Deputy Director of the CIA, to Sen. John Sparkman, Chairman, Senate Foreign Relations Committee (July 7, 1978) reprinted in 1 M. GLENNON & T. FRANCK, supra note 45, at 185–88.
53. Relevant provisions of the Universal Declaration of Human Rights, G.A. Res. 217A III, U.N. Doc. A/810 (1948), include the right to be free from distinction “made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs” (art. 2); the right to “life, liberty, and the security of person” (art. 3); the right to equality before the law and “without any discrimination to equal protection of the law” (art. 7); the right to an effective remedy for “acts violating the fundamental rights granted ... by the constitution or by law” (art. 8); the right to “protection of the law” against “arbitrary interference with ... privacy, family, home, or correspondence” (art. 12); the right to “seek and to enjoy in other countries asylum from persecution” (art. 14); the right to "hold opinions without interference and to seek, receive, and impart information and ideas” (art. 19); and the right to “freedom of peaceable assembly and association” (art. 20).
54. See, e.g., Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) Notwithstanding Security Council Resolution 276, 1971 I.C.J. 16 (separate opinion of Judge Ammoun); Montreal Statement of the Assembly For Human Rights (1968), reprinted in 9 J. INT'L COMM. JUR. No. 1, 94, 95 (1968); Declaration of Teheran, Final Act of the International Conference on Human Rights 3, at 4, para. 2, U.N. Doc. A/CONF 32/41 (1968); R. LILLICH & F. NEWMAN, INTERNATIONAL HUMAN RIGHTS: PROBLEMS OF Law 7 (1979).
55. See infra notes 156–60 and accompanying text.
the CIA-THRUSH agreement. 56 Second, the minority view has held that fundamental human rights are not only customary law but also peremptory norms. 57 If so, these norms would void any agreement which derogated from them. 58 Third, for the reasons discussed below, the Executive may not have the constitutional authority to enter into such an agreement.59 International law could invalidate any agreement beyond the scope of the Executive's constitutional authority. 60
B. Constitutional Law In the hypothetical described above, the CIA and the FBI contributed significantly to the establishment and maintenance of Tinaria's secret police. 61 Whether the President was constitutionally empowered to carry out the hypothetical intelligence agreement in question depends upon which of two alternative modes of analysis is used: either (1) by applying a "fixed powers” test in which the foreign relations power of the Chief Executive is weighed against the rights of those affected by the agreement; or (2) by applying the “Auctuating powers” test outlined by Justice Robert Jackson's concurring opinion in Youngstown Sheet and Steel Co. v. Sawyer 62 (the Steel Seizure Case).
1. The “Fixed Powers” Test The “fixed powers” test weighs the inherent powers of the President against any constitutional limitations on the exercise of those powers.
56. Article 103 of the charter provides, “In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail.” U.N. CHARTER art. 103.
57. E. Suy, Le Droit des traits et les droits de l'homme, Inaugural Lecture of the Eleventh Study Session of the International Institute of Human Rights, Strasbourg, France (June 30, 1980).
58. The Vienna Convention on the Law of Treaties, art. 53, Exec. L., 92nd Cong., 1st Sess. (1970). Since an international agreement can be oral as well as written (see supra note 52 and accompanying text), there seems little reason to insist that an agreement be in writing for purposes of the jus cogens doctrine, but insufficient precedent exists to form any pattern of custom and practice.
59. See generally infra text accompanying notes 150–166.
60. Article 46 of the Vienna Convention on the Law of Treaties, supra note 58, provides as follows:
1. A state may not invoke the fact that its consent to be bound by a treaty has been expressed in violation of a provision of its internal law regarding competence to conclude treaties as invalidating its consent unless that provision was manifest and concerned a rule of its internal law of fundamental importance. 2. A violation is manifest if it would be objectively evident to any State conducting itself
in the matter in accordance with normal practice and in good faith. 61. See supra notes 20, 23, and accompanying text. 62. 343 U.S. 579, 635-38 (1952) ( Jackson, J., concurring).
a. The Foreign Relations Power of the President The courts have seldom ruled upon the President's power to conduct the foreign relations of the United States. Perhaps the most oft-cited opinion concerning the scope of that power is that of the Supreme Court in United States v. Curtiss-Wright Export Corporation:63
[W]e are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very delicate, plenary, and exclusive power of the President as the sole organ of the federal government in the field of international relations—a power which does not require as a basis for its exercise an act of Congress . . . .64
Moreover, Justice Sutherland asserted that this power “did not depend upon the affirmative grants of the Constitution.”65 Acting pursuant to his “inherent” foreign affairs power, the President has entered into numerous “sole” executive agreements, 66 and the Supreme Court has upheld his authority to do so.67 An intelligence liaison agreement made by agents of the executive branch would constitute an exercise of this inherent power.
The question then becomes whether that agreement is prohibited by the limits placed by the Constitution on the exercise of the foreign affairs power. The first amendment guarantees of free expression are the most likely restrictions. While first amendment rights in general are not absolute, they should provide a counterbalance to the Executive's freedom to enter into international agreements.
b. The First Amendment Rights of THRUSH's “Targets” Resident aliens stand on essentially the same footing as citizens under the Bill of Rights, 68 and it seems clear that under the hypo
63. 299 U.S. 304 (1926).
66. See generally E. Corwin, THE PRESIDENT, OFFICE, AND Powers 3 (4th ed. 1957); McDougal & Lans, Treaties and Congressional Executive Agreements: Interchangeable Instruments of National Policy, 54 Yale L.J. 181 (1945); Congressional Oversight of Executive Agreements, Hearings on S. 3475 Before the Subcommittee on Separation of Powers of the Senate Committee on the Judiciary, 92d Cong., 2d Sess. (1972); Congressional Review of International Agreements, Hearings Before the Subcommittee on International Security and Scientific Affairs of the House Committee on International Relations, 94th Cong., 2nd Sess. (1976).
67. Dames & Moore v. Regan, 453 U.S. 654 (1981); United States v. Pink, 315 U.S. 203 (1942); United States v. Belmont, 301 U.S. 324 (1937).
68. Bridges v. Wixon, 326 U.S. 135, 148 (1945); Bridges v. California, 314 U.S. 252 (1941); Truax v. Raich, 239 U.S. 33 (1915); United States v. Wong Quong Wong, 94 F. 2d 832 (D. Vt. 1899); United States v. Toscanino, 500 F. 2d 267 (2d Cir. 1974). See generally L.