APPENDIX 2 VOLUME 25, Number 1, Winter 1984 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. I. INTRODUCTION 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 1 * 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., 2d. 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.* 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 2. 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). committee hearings on the case of Henry Liu give every is to be made into the murder of Henry Liu, no less should At the moment, the United States government is contemplating the sale of lethal military equipment to the People's Republic of China. No one has suggested that those sales be denied as a consequence of putative human rights violations by the government in Beijing. There are critical security, economic and diplomatic issues involved in such sales and those issues seem to enjoy priority. No less can be said about U.S. relations with the Republic of China on Taiwan. The Issues The foreign policy interests of the United States touch upon an entire range of concerns. In East Asia it is evident that the U.S. has trade, investment, diplomatic and security preoccupations of significant magnitude. The Taiwan Relations Act (Public Law 96-8, April 10, 1979), which now governs our relations with the ROC, affirms the major preoccupation of the U.S. with the security, integrity and economic viability of Taiwan. 7 Not only is Taiwan the sixth largest trading partner of the United States--exchanging about $15 billion annually in bilateral trade--and an investment outlet of considerable importance, the island and associated territories are of manifest importance in maintaining the security structure of the West Pacific region. Section 2b.2 of the Taiwan Relations Act affirms that "peace and stability" in the Taiwan Strait region "are in the political, security, and economic interests of the United States," and are, moreover, "matters of international concern.... Military sales to the authorities in Taipei thus serve the interests of the United States and the international community in order to maintain the military balance in the region--a balance that deters any adventure by the authorities in Beijing, or any military initiatives by Moscow. The military balance in the Taiwan Strait, at best, is 50-408 0-85- -5 |