recting the FBI to focus on the threat posed by the services of noncommunist powers. Accordingly, Congress should increase the FBI's manpower to meet its additional responsibilities.

c. The United States government should expel foreign diplomats who engage in illegal activities as intelligence officers.

The legal means are already at hand to do precisely that. Under the Vienna Convention on Diplomatic Relations of April 18, 1961, 195 although a diplomat is not liable to arrest or detention,196 he or she is bound to "respect the laws" and not to "interfere in the internal affairs of" the receiving state. 197 The receiving state may "at any time and without having to explain its decision” notify the sending state that a diplomat is persona non grata. 198 The sending state is thereupon required to recall the person concerned or terminate her functions. 199

In fact, the United States government rarely issues formal declarations that a member of a foreign mission is persona non grata. Instead, it usually suggests, informally, to the foreign government concerned that it recall certain members of its mission. 200

A hard line towards foreign secret police operations will include certain costs. United States intelligence officers abroad are in effect "reverse hostages"; the expulsion of a foreign intelligence officer from this country can lead to the expulsion of a United States intelligence officer from another state. 201 An eye for an eye is widely accepted as the foremost rule of international custom governing treatment of intelligence matters.

202

But retaliatory expulsions will not persist, and may not commence, if the State Department gives effective notice that the same rules will

targets are the communist nations, especially the Soviet Union and China, and the most soughtafter information concerns their military capabilities and intentions." V. MARCHETTI & J. MARKS, THE CIA AND THE CULT OF INTELLIGENCE 79 (1974). See also Piper, American Perception and Misperceptions of Soviet Military Intentions and Capabilities, in INTELLIGENCE POLICY AND NATIONAL SECURITY 74-81 (R. Pfaltzgraff, Jr., U. Ra'anan & W. Milberg eds. 1981); J. Smith, supra note 6, at 126; LaVoy, supra note 15, at 62.

195. The Vienna Convention on Diplomatic Relations and Optional Protocol on Disputes, opened for signature April 18, 1961, 23 U.S.T. 3227, T.I.A.S. No. 7502, 500 U.N.T.S. 95. The Convention entered into force for the United States on December 13, 1972.

200. 7 M. Whiteman, DigEST OF INTERNATIONAL Law 92 (1970).

201. See supra note 26.

202. In a typical tit-for-tat, the United States recently barred the posting of an Indian diplomat in retaliation for New Delhi's rejection of an American diplomat accused of CIA connections. India Denies Soviet Prompted Barring of Diplomat, N.Y. Times, Sept. 3, 1981, at A9, col. 1.

henceforth apply to all. The argument that a firmer domestic policy would hamper legitimate United States law enforcement efforts abroad 203 overlooks the fact that United States intelligence officers presumably do not transgress accepted norms of diplomatic behavior or violate international law. If they do, they should stop, and if halting such behavior in the United States has the effect of halting it abroad, then so much the better.

2. Statutory Reform

Ideally, the sorts of suggestions outlined above should constitute a charter for the intelligence community, a comprehensive statute setting clear limits upon the foreign and domestic operations of the United States intelligence community. 204 The enactment of an intelligence charter is probably not currently politically feasible, nor is the strengthening of the "Solarz Amendment. "205 Any statutorily mandated step of the sort outlined above, such as a legal requirement that the President declare offending diplomats persona non grata, would face a certain veto and could raise serious constitutional questions. The determination of which foreign emissaries to "receive" lies close to the core of independent Presidential powers. The Reagan Administration has proposed that the State Department "cease issuing visas to . . . foreign students in order to pressure the government concerned to stop those practices. "206 Yet this would penalize the alreadly aggrieved student, not the wrongdoer government.

Given the improbability of enacting legislation which would impose direct governmental sanctions on foreign intelligence services, and given the further improbability of meaningful administrative steps being taken to resolve the problem, it is useful to focus instead upon the possibility of furthering the ability of affected non-governmental organizations to employ the means at their disposal. The colleges and universities attended by students who face systematic harassment, intimidation or surveillance by foreign intelligence services face the

203. See, e.g., the comment of Robert L. Keuch, former Deputy Assistant Attorny General: "We have to tread cautiously," Mr. Kreuch said, "because we ourselves are engaging in activities in other countries, and correctly so. We operate a network of law enforcement and intelligence investigations in foreign countries that involve our citizens. We want to be sure that what we do to prevent the actions of foreign intelligence agencies in this country does not rebound on us and get us kicked out of other countries."

Pear, Importing Violence Is a Shadow Industry," N.Y. Times, Aug. 23, 1981 at E4, col. 3. 204. Church Committee Report, Intelligence Activities and the Rights of Americans, Book II, supra note 184, at 296–339.

205. See supra text accompanying notes 185-88.

206. Letter from Elliot Abrams, Assistant Secretary of State for Human Rights and Humanitarian Affairs, to Robert F. Coulam, Assistant Professor of Social Science and Public Policy, Mar. 1, 1983 (on file with author).

problem of gathering reliable information sufficient to link particular acts to a particular foreign intelligence agency. In order to sue foreign governments who harass, intimidate, or maintain surveillance of its students, a university needs to identify such governments.

At this stage, involvement by the United States government becomes both desirable and politically feasible. The United States intelligence community is capable of identifying those governments. Indeed, the Executive branch is required by law to report annually to Congress concerning the human rights practices of states receiving military assistance. 207 The annual submission and publication of these reports helps focus attention on continuing human rights violators. The procedure might well serve as a model. If what a government does to its citizens within its own territory is properly a matter of United States concern, what that government does to its citizens within the territory of the United States is a fortiori a matter of United States concern. The best way of getting information about harassment, intimidation or surveillance is to direct the executive branch to enact a country-report requirement mandating annual accounts of improper intelligence activities conducted within the United States. A great amount of detail is not necessary, and given the sensitivity of the sources and methods used to gather the information, a large measure of detail is unattainable. All that is necessary is for the educational community to know which states' secret police forces are active on United States campuses. Colleges and universities could then bring individual or collective pressure against the states in question to halt those activities.

One would hope that such action would ultimately lead to a more thorough examination of questions concerning the role played by the United States government, questions that have thus far received too little attention.

IV. CONCLUSION

A. "Neutral Principles" and State-Sponsored Terrorism

The approach suggested in this article to the problem of foreign intelligence activity in the United States consists of perhaps the two most fundamental precepts of the Reagan-Kirkpatrick foreign policy exegesis: the rejection of diplomatic double standards, and opposition to international terrorism. Ambassador Kirkpatrick, prior to assuming her position at the United Nations, called for a "realistic policy which

207. See Foreign Assistance Act of 1961, § 116(d)(1), 22 U.S.C. § 2151n (1976); id. § 502B(b), 22 U.S.C. § 2304 (1976).

aims at protecting our own interest, "208 and decried the Carter human rights policy for acceptance of "the status quo in communist nations

but not in nations ruled by 'right-wing' dictators or white oligarchies. "209 Promising to eliminate double standards of the sort that pervaded the Carter human rights policy, former Secretary of State Haig announced that efforts to halt international terrorism would replace human rights concerns as the centerpiece of United States foreign policy. 210

The Reagan Administration's response to Libyan intelligence activities in the United States points the way for effective action within the existing legal framework. Following the shooting of a Libyan student, who was warned by the FBI that he was one of 24 persons on a Libyan “hit list," the FBI arrested a man who, police charged, was a mercenary recruited by the Libyan government. 211 Two weeks after the arrest, the State Department ordered the Libyan Embassy in Washington to close down and expelled all 27 of its diplomats.

The Executive must move with equal alacrity in dealing with the intelligence services of less hostile states. Libyan diplomats should not serve as examples merely because Libya is a weak and rather ineffectual adversary of the United States. If the policy against terrorism is to be more than a drumbeat, it must be applied equally to all. Allowing abuse of United States good will by traditional allies would mean replacing a double standard on human rights with a double standard on terrorism.

It is not enough to apply the same principles only to the conduct of foreign states. These principles must govern the behavior of the United States as well.213 To condemn terrorism when supported by adversaries of the United States and to condone it when supported by allies of the United States undercuts the most fundamental tenet of the international legal order, the concept of "reciprocally applicable neutral principles. "214 "[S]o long as the United States (or any other nation) is committed to the rule of law rather than the rule of the jungle," Professor Franck has written, "the duty to govern specific

2.

208. Kirkpatrick, Dictatorships and Double Standards, Commentary 45, Nov. 1979.

209. Id. at 41.

210. See supra note 4.

211. Qaddafi Tied To Shooting of Libyan in U.S., N.Y. Times, May 24, 1981, § 1, at 1, col.

212. Id.

213. As Professor Ullman said of United States human rights policy, "Florence Nightingale's remark about hospitals is once again apposite: 'First, they should not spread disease."" Remarks of Professor Ullman at the First Symposium of the Allard K. Lowenstein International Human Rights Law Project, Yale Law School (April 16-18, 1982)(on file at Harvard International Law Journal).

214. T. FRANCK, THE STRUcture of Impartiality 320 (1968).

national conduct in accordance with neutral principles of general application is not one limited to the chambers of the International Court of Justice. "215

The activities of THRUSH in the United States represent, in one sense, an easy case. Few foreign states are likely to engage the cooperation of the CIA so closely, operate against residents of the United States so intensely, and repress their own citizenry so brutally as to trigger the application of criminal sanctions. THRUSH's operations are usefully reviewed to show where the law draws the line on liaison relationships.

In another sense the hypothetical case of THRUSH and the CIA presents a harder set of questions. Can one set aside any law or constitutional precept for the purpose of advancing a foreign policy imperative for the preservation of the United States? Most would probably say yes, since the Constitution is not, after all, "a suicide pact. "216 But neither is the Constitution a compact of convenience, providing protection for dissidents only when their activities happen to comport with the government's foreign policy objectives or its assessment of the national interest. The survival of the United States as a nation is seldom contingent upon the survival of a given authoritarian regime, and the survival of such a regime is seldom contingent upon its continuation of intelligence operations in the United States. Where such activities go beyond the pale, "the legal order would be better preserved if departures from it were frankly identified as such than if they were anointed with a factitious legality and thereby enabled to serve as constitutional precedents for future action.”217

B. The Mandate of National Security

Under the best of circumstances it is no easy task to identify what is essential to this nation's security and well-being, and to devise policies based on a balance of diverse, sometimes conflicting, national goals. Governmental support or indifference towards operations in the United States by the secret police of certain foreign states reaffirms one set of vital interests, the support of states that are friendly to United States interests, while altogether discarding another vital interest, the protection of freedom of expression, the Constitution's “most majestic guarantee.

The guarantee of free expression is especially vital to United States foreign policy, for it is an element of the process by which it is made.

215. Id. at 328.

216. Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963). 217. A. SCHLESINGER, THE Imperial PRESIDENCY 9 (1973). 218. L. TRIBE, supra note 179, at 576.