why. First, the cut-off is optional. Arms sales are terminated only in the event the President makes the determination in question, but the Amendment does not require that he make that determination. Second, some nations engaged in these activities do not buy arms from the United States, or they can obtain the arms elsewhere. Restricting the penalty to a cut-off only in arms sales renders the statutory penalty meaningless in those situations. Third, the Amendment refers only to a "consistent pattern of harassment or intimidation," but it makes no reference to surveillance. Most offending foreign countries normally apply sanctions in their own territory-they wait for the dissident to return home before "countering" him. Here the Amendment is irrelevant.

A variety of political and institutional factors further impede the effective enforcement of these statutes. These become clear as the role of each executive branch actor is reviewed.

The Federal Bureau of Investigation is of course the agency primarily reponsible for federal law enforcement. The Bureau has in the past made affirmative efforts to gather information only about those foreign intelligence agencies whose activities in the United States directly implicate U.S. national security. For the most part these have been the agencies of communist countries. In operational terms, this has meant that the FBI has known a great deal about the intelligence activities of countries operating against the United States government-agencies engaged in classic espionage. But it also has meant that the Bureau has known virtually nothing about most agencies operating against private persons-agencies that conduct harassment, intimidation, or surveillance of dissidents engaged in constitutionally protected activities.

Now, one can agree or disagree with the Bureau's allocation of counterintelligence resources. My own opinion is that some measure of differentiation is appropriate. But it seems clear that the amount of resources devoted to the investigation of "friendly" foreign intelligence services by the FBI has been disproportionately small in relation to the substantial systemic harm caused by their activities. This, I think, is the first institutional impediment; passivity on the part of the FBI.

Assume, in any event, that the Bureau does obtain evidence of a specific federal offense by a foreign intelligence agency. Two principal remedies are available. If the violator is a case officer clothed in diplomatic immunity, he can be expelled. If the violater is an agent without diplomatic immunity, he can be prosecuted. Unfortunately, as a practical matter, further institional impediments limit the availability of either remedy.

First, the Central Intelligence Agency has a strong incentive to oppose either action. In many instances intelligence agencies know the identities of each other's personnel, and any steps taken against foreign intelligence operatives in the United States can result in retaliatory action against CIA officers stationed abroad. Moreover, prosecution can ri. the disclosure of sensitive intelligence sources and methods, since the question always arises as to how the government knows the defendant is a foreign agent.

Second, relevant State Department officials too often are loathe to see any steps taken which will disrupt an otherwise smooth-running bilateral relationship. Conflict-avoidance mechanisms seem highly evolved in the diplomatic personality; by training and inclination, career foreign service officers-to their credit-are experts in maximizing harmony and minimizing discord. Yet that proclivity can impede a swift and firm response to actions inconsistent with diplomatic norms. Perhaps more important, it can also operate to cut short at the outset counterintelligence efforts by the FBI. And without relevant information, the propriety of either remdey obviously becomes moot.

What is to be done? At the risk of sounding simplistic, I must tell you that it seems clear to me that this problem can be resolved swiftly and permanently, without further legislation, if the requisite will were mustered at the highest levels of the executive branch. That will would direct the following:

First, United States intelligence and law enforcement agencies would be prohibited from encouraging foreign intelligence agencies to engage in illegal activities in the United States. For reasons that are not clear, the executive order promulgated by President Reagan (E.O. 12,333; 46 Fed. Reg. 59,941 [1981]) dropped this prohibition; it provides simply that "[n]o agency of the Intelligence Community shall participate in or request any person to undertake activities forbidden by this Order." In contrast, the previous executive order governing domestic intelligence operations (E.O. 12,036; 43 Fed Reg. 3674 [1978] provided that "[n]o agency of the Intelligence Community shall request or otherwise encourage, directly or indirectly, any person, organization, or government agency to undertake activities forbidden by this Order or by applicable law." [Emphasis added.] Obviously the previous order was much

tighter. If the Administration is serious about bringing these unlawful activities to a halt, it must impose a prohibition against direct and indirect participation in and encouragement of activities that our own agencies are forbidden to conduct.

Second, if the Executive found the requisite will to resolve the problem, it would "task" the CIA, FBI, and NSA to gather intelligence actively about those foreign agencies reasonably believed to be engaged in acts of harasssment, intimidation, or surveillance within the United States.

Third, foreign intelligence agencies would be placed on notice that the harassment, intimidation or surveillance of United States residents will henceforth be regarded as a breach of diplomatic norms, and that every foreign diplomat who thus acts beyond the scope of his diplomatic immunity will promptly be expelled. In response to concerns about retaliatory expulsions of CIA personnel, I would simply say that I am aware of no evidence that the Agency engages in the kinds of activities abroad that have raised legitimate concerns about foreign intelligence agencies activities in the United States. The application of reciprocal diplomatic norms by foreign governments would not, therefore, undercut United States intelligence activities carried out in foreign countries.

Finally, the State Department, in formulating policy towards foreign countries, would be instructed (a) to learn from the United States intelligence community precisely what foreign intelligence services are doing in this country; and (b) to take into account the extent to which those services engage in acts of harassment, intimidation, or surveillance directed at United States residents. Many of these foreign governments are human rights violators. It may be that we cannot affect the way they treat people in their own countries. But surely the United States government can affect the way they treat their people and our people here in our own country. Mr. Chairman, I am not optimistic that the necessary administrative steps will be taken. I must say that I am frankly bewildered at the Administration's inaction. The issue is, in the end, a law-and-order issue; there would seem few more squarely conservative objectives than that of protecting the exercise of constitutional rights from violation by foreign thugs. Nonetheless, it seems unlikely that the Executive will take the initative, and in the absence of an effective administrative response, any solution will have to come from the Congress. I should like at this point to outline briefly the principal legislative remedies that I believe might be appropriate. First, the Solarz Amendment might be strengthened by requiring the President to transmit a written determination to Congress with respect to any country that engages in the pattern of activities now described in the Amendment. This would effectively mandate a cut-off of arms sales to that country. The amendment might be further strengthened by including in the cut-off other forms of assistance, such as military and economic aid.

Second, the burden might be shifted to the Executive by providing that the cut-off will take effect unless the President determines that such a pattern of activities has not occurred. It would of course be necessary, under this procedure, to specify the country in question; given the substantial, unrebutted evidence that the activities of Taiwan intelligence services now fall within the statutory formula, it would seem appropriate that Taiwan be so specified.

Third, a statutory requirement that the President expel foreign diplomats who violate diplomatic norms would, I think, raise constitutional problems. The conduct of diplomatic relations is generally thought to be a plenary power of the President. In addition, because immunity is conferred by treaty (and possibly by customary international law as well), any statutory attempt at retrenchment could seriously complicate the conduct of United States diplomacy.

On the other hand, as members of this Subcommittee are well aware, Taiwan is not recognized by the United States, and the United States does not carry on diplomatic relations with Taiwan. Personnel affiliated with Taiwan's Coordination Council for North American Affairs (CCNAA) do enjoy "privileges and immunities" of a sort, but this is different from the immunity accorded diplomats of recognized countries. The scope of CCNAA immunity is narrower, and more important for present purposes, it is conferred by the President pursuant to statutory authorization. The Taiwan Relations Act (in section 10; 22 U.S.C. 3309(c)) authorizes the President to extend privileges and immunities to the CCNAA on a reciprocal basis. That statutory provision can be modified; there is no requirement in international law that this immunity be extended, and there is no constitutional inhibition against its limitation by Congress. It would be entirely appropriate for Congress to repeal this provision of the Taiwan Relations Act; it would also be entirely appropriate for Congress to amend the provision so as to confer immunity conditionally. This Subcommittee may wish to consider, for example, engrafting the approach of the Solarz Amendment onto the Taiwan Relations Act: the Act might be amended to authorize the

President to extend appropriate privileges and immunities to the CCNAA only after he has transmitted to the Congress his determination that the authorities on Taiwan are not engaged in a pattern of harassment, intimidation, or surveillance of persons in the United States. This approach would seem to have the benefit of relating the remedy more directly to the wrong.

Fourth, and finally, the Subcommittee may wish to consider a broader remedy, analogous to the "country reports" required by the human rights legislation (sections 116(d)(1) and 502b(b) of the Foreign Assistance Act of 1961). The executive branch might be required to report annually to Congress concerning every country engaged in a pattern of harassment, intimidation, or surveillance in the United States. Such reports would provide hard information on matters now beset with rumor and speculation. Private entities that deal with these countries, such as colleges and universities, would then have a reliable factual foundation on which to base individual or collective pressure to halt their misconduct.

Mr. Chairman, at one level, the most painful level, the problem we have been discussing today is the problem of relatively few individuals: Henry Liu, Wen-cheng Chen, their widows, their children, their families, and other emigres who dare to speak out against oppression and who have nowhere to turn but to you—the United States Government-when the forces of oppression seek to silence them.

On another level, however, the problem affects all Americans. For every resident of the United States is constitutionally accorded the rights of free speech, free association, and free assembly. If these rights are abridged by a foreign secret police force, it is not simply the individual "target" who is their victim-it is our entire body politic.

For information is the lifeblood of our democracy. Our system assumes a marketplace of ideas. My liberty depends upon your rights-to free speech, free association, free assembly-as much as it depends upon my own. Our democracy works only if each person can learn all he needs to know to develop informed opinions and to cast intelligent votes. We need to hear what these emigres have to say. They have important messages on the terror of authoritarianism. We need to be reminded what tyranny is all about.

So when a foreign secret police force strikes out at these brave men on American soil, it strikes at the very heart of our political system.

The murder of Henry Liu represents an attack, Mr. Chairman-some might say a terrorist attack-on our country and on the most precious ideals for which it stands. I hope that the Congress responds accordingly.

Mr. SOLARZ. Thank you very much, Mr. Glennon. You have some interesting thoughts and suggestions here, as you always do. I can assure you that we will carefully consider them.

I gather that you followed this problem of foreign government and foreign agent surveillance, harassment and intimidation of people in the United States fairly closely when you were on the staff of the Foreign Relations Committee in the Senate.

Mr. GLENNON. I did, yes.

SERIOUSNESS OF PROBLEM

Mr. SOLARZ. Based on the knowledge available to you, do you believe that there is a serious problem along these lines currently in the United States?

Mr. GLENNON. Well, it has been 5 years since I left the Senate Foreign Relations Committee staff. My knowledge since that time is based on the public record. My impression is the national situation has not changed a whole lot and there is a serious problem, yes, Mr. Chairman.

Mr. SOLARZ. What specific countries do you believe are engaged in such activities?

Mr. GLENNON. Again, not referring to classified information that I would have received in my official capacity, I think that those countries would be Taiwan, Yugoslavia, to an extent the Philippines. I might say that the Library of Congressional Research Serv

ice maintains an extensive clip file on this subject and we found it very useful when we commenced our investigation to ask them to compile clippings so as to see what countries ought to be targeted.

Mr. SOLARZ. The matter clearly bears very close investigation for all of the reasons you mentioned, but what do we do if the administration genuinely believes that it doesn't have the evidence to justify this conclusion?

There is a difference between allegations and proof, and particularly if various penalties are going to be triggered, if the conclusion is reached that a foreign government is engaged in surveillance and intimidation or harassment, then you do need some kind of evidentiary study to justify the implication of the penalties.

I have the impression that with respect to such activities, that it is the administration's position, at least, that they don't have conclusive evidence that there is a consistent pattern on the part of these countries.

Mr. GLENNON. Well, my suggestion, Congressman, after watching the cross-examination skills of your subcommittee today, would be that the executive branch representatives be called before the subcommittee and invited to present to it precisely the evidence on which they base the conclusion that there is no consistent pattern.

CONSTITUTING A PATTERN

Mr. SOLARZ. Let me ask you this. Supposing an executive session, including the FBI, State Department, any other relevant agencies, gave testimony that in their view no country was currently engaged in activities that could fairly be characterized as a consistent pattern of surveillance, intimidation and harassment-let's just assume for the purposes of discussion they said that. If they did, would there be any justification for the legislation you have suggested?

Mr. GLENNON. Well, it would depend specifically on which piece of legislation you are referring to. I think that the Congress can itself come to that conclusion. If you doubt the conclusion reached by the administration, this subcommitee can itself draw the conclusion that the evidence gathered by our intelligence community, which it has interrogated, supports the conclusion that a pattern exists.

Mr. SOLARZ. As a practical matter, one would presumably need an administration determination that the pattern existed to trigger the penaties. If they believe the pattern doesn't exist, they won't make the determination.

As a practical matter, it would be almost impossible to persuade the Congress that a country was engaging in such a pattern if the intelligence agencies of our own Government said they didn't have proof to that affect.

We, as a practical matter, have to rely on their judgment.

Mr. GLENNON. Well, in that case I think the approach is a deadend street if they are not going to be

Mr. SOLARZ. There are two possibilites here.

One is that such a pattern exists but the administration, for foreign policy or other reasons, doesn't want to invoke penalties be

cause it thinks it will be counterproductive. In this case, I think, a very good case could be made for strengthening the law, making the penalties more automatic.

The second possibility is that the administration genuinely believes such a pattern does not exist. If it genuinely believes that, then I am not sure what good would result from enacting your suggestions.

Mr. GLENNON. Well, I guess I just return to my own conclusions, Mr. Chairman: the Congress can genuinely believe something different, and it is the Congress that passes laws.

Mr. SOLARZ. But you have the problem of persuading the Congress.

Mr. GLENNON. Well, if this subcommittee comes to the conclusion, after reviewing the intelligence community's evidence, that there is pattern, I would believe this subcommittee.

Mr. SOLARZ. Is it your view that the agencies of the executive branch dedicate the resources necessary to make a solid judgment here?

Mr. GLENNON. It depends on the country that you are talking about. I don't think it would be appropriate to go beyond that in open session.

Mr. SOLARZ. Mr. Solomon, do you have any questions?

Mr. SOLOMON. No, Mr. Chairman, but I have come across an editorial that appeared in the Wall Street Journal on December 26, 1984. It deals with this subject matter here today and others, including not only Mr. Liu, but the two gentlemen that I spoke of who disappeared in connection with the People's Republic of China. I would submit this for the record, if I might.

[The article follows:]

PROTECTING THE REFUGEE

Zhang Zheng-gao, a 46-year-old Chinese engineer, jumped from an upper floor of Peking's mission in New York last April, winning asylum at the cost of a broken ankle. With help from local Chinese businessmen, he settled in an apartment in Brooklyn and bought a 19-inch color TV set and a cassette player. But in mid-July, Mr. Zhang vanished.

Within several days, he was reported back in Peking, where the government stated he had returned voluntarily. The State Department accepts this claim, noting that he seems to be back at his old job, but other investigators believe Mr. Zhang was kidnapped as a warning to Chinese athletes then arriving at the Los Angeles Olympics.

The case of Zhang Zheng-gao, for all its ambiguity, makes us think seriously about several other mysteries. Two weeks ago another Chinese engineer named Zhang Xin (no apparent relation) tried to seek asylum while his government mission changed planes at Kennedy Airport. After a day in New York, he somehow wound up at the Chinese consulate in mid-town and was found on its roof hanged the next morning. The New York Medical Examiner has issued a preliminary finding of suicide.

A similar mystery involves Peking's capitalist rival, the Republic of China on Taiwan. A Chinese-American writer named Henry Liu, 52, was murdered at his Daly City home south of San Francisco on Oct. 15. Police have named three Chinese suspects, said to be members of the Bamboo Gang, a large Taiwan-based underworld group. Two were arrested in Taiwan and are said to have confessed, but Daly City police complain Taiwan hasn't been giving the information needed for indictments. Friends of Mr. Liu accuse higher-ups in Taiwan of arranging the killing to silence his embarrassing writings about the regime.

None of these cases is subject to the kind of proof that would stand up in court, which is part of the problem with incidents of this genre. Yet there can be little doubt that foreign governments sometimes do dirty tricks on U.S. soil. Similarly