57 If

the CIA-THRUSH agreement.56 Second, the minority view has held that fundamental human rights are not only customary law but also peremptory norms. 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 "fluctuating 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).

64. Id. at 319-20.

65. 299 U.S. at 316-18.

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.

thetical THRUSH's surveillance would have violated their rights to free speech and peaceable assembly.

When trying to vindicate these rights, resident aliens need standing to sue. The Supreme Court ruled in Laird v. Tatum69 that plaintiffs, subjects of domestic surveillance by the United States Army, lacked standing. The Court held that they had not suffered the requisite injury-in-fact.7 The Court found that plaintiffs had not satisfied the “established principle that to entitle a private individual to invoke the judicial power to determine the validity of executive or legislative action he must show that he has sustained or is immediately in danger of sustaining a direct injury as a result of that action. . . ."71 Standing is not conferred, the Court said, by a claim "that the exercise of.. First Amendment rights is being chilled by the mere existence, without more, of a governmental investigative and data-gathering activity .”72 “Allegations of a subjective 'chill' are not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm .

"73

The facts of Laird differ from the hypothetical case of aliens under THRUSH surveillance in the United States. In the hypothetical, foreign dissidents faced "a threat of specific future harm," namely, retaliation by Tinaria upon their return home. Such retaliation was based upon information gathered by THRUSH through surveillance in the United States. Hence Tinarian dissidents were "in danger of sustaining a direct injury as a result of" that surveillance.74 Unlike the army in Laird, the Tinarian government did more than simply gather data, it acted upon that data.

There is little doubt that THRUSH surveillance in the United States had a chilling effect upon the exercise of first amendment rights. It is not necessary to establish a nexus between the exercise of protected activities and the application of sanctions. The Supreme Court has stated that activities protected by the first amendment are vulnerable and must be protected from the threat of sanctions almost as much as from the actual application of sanctions." Professor Emerson, discussing the “serious first amendment issues" raised by intelligence collec

HENKIN, FOReign Affairs aND THE CONSTitution 254-55 (1972); M. Whiteman, supra note 32, at 383.

69. 408 U.S. 1 (1972).

70. Id. at 13 (quoting Ex parte Levitt, 302 U.S. 633, 634 (1937)).

71. Id.

72. Id. at 10.

73. Id. at 13-14.

74. See supra note 2.

75. New York Times v. Sullivan, 376 U.S. 254, 271 (1964).

tion, has argued that it "should be held a violation of First Amendment

The rights in question are protected only from the actions of governmental entities. The Bill of Rights does not concern the action of private individuals (or foreign states). However, the involvement of the United States government in the activities of an alleged wrongdoer may constitute state action and otherwise private conduct subject to constitutional limitations.

Courts determine whether state action exists on a case-by-case basis. The facts are crucial. There is a need to show some involvement by the state or of someone acting under color of its authority. The Supreme Court held in United States v. Guest that state involvement need not be "either exclusive or direct." The Court stated that “[i]n a variety of situations the Court has found state action of a nature sufficient to create rights under the Equal Protection Clause even though the participation of the State was peripheral, or its action was only one of several cooperative forces leading to the constitutional violation. "78

One such case was United States v. Price, in which the Supreme Court found that the state action requirement was fulfilled when private individuals and state officials participated in “joint activity” culminating in the murder of three civil rights workers. The Court stated:

Private persons, jointly engaged with state officials in the prohibited action, are acting "under color" of law for purposes of the statute. To act "under color" of law does not require that the accused be an officer of the State. It is enough that he is a willful participant in joint activity with the State or its agents.80

Commenting on such cases, the authors of one treatise conclude:"[i]t would appear that any significant encouragement of alleged wrongdoers to impair important rights of the aggrieved parties will be sufficient. Even though the complained of practice may not have

76. Remarks of Professor Emerson 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). See also White v. Davis, 13 Cal. 2d 757, 773, 533 P. 2d 222, 232, 120 Cal. Rptr. 94, 104 (1975) (en banc) (holding that police undercover operations on university campus directed at no illegal activity constituted a prima facie violation of first amendment rights).

77. 383 U.S. 745 (1966).

78. Id. at 756.

79. 383 U.S. 787 (1966).

80. Id. at 794.

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.I.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.