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3 Lane nrear zused by the services of nons. Senzy. jopress should increase the FBI's
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39-4See also Piper, American Perception uch, in INTELLIGENCE POLICY AND
man & W. Milberg eds. 1981); J.
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ini Vaish as a barred the posting of an Indian Kada vii w American diplomat accused of CIA apie Dropdomat, N.Y. Times, Sept. 3, 1981, at
henceforth apply to all. The argument that a firmer domestic policy would hamper legitimate United States law enforcement efforts abroad203 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 provisions. The first amendment would provide foreign nationals with rights that are coextensive with free speech and association. The violation of these rights would also lead to breaches of the treaties. The Alien Tort Claims Act would also afford a remedy to foreign nationals if the violation of their rights was tortious. 152
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).
v. The United Nations Charter
The United Nations Charter contains a number of provisions relating to human rights. Article 1 of the United Nations Charter was intended to provide international co-operation in solving international problems of an “economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion."153 Article 55 provides that the United Nations shall promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion."154 All members of the United Nations commit themselves, moreover, to "fulfill in good faith the obligations assumed by them in accordance with the present charter."155
152. See supra notes 143–46 and accompanying text.
Subject matter jurisdiction has been granted sparingly under the Alien Tort Claims Act, 28 U.S.C. § 1350 (1976), and typically only those cases deciding a violation of the “law of nations” may be heard. Traditionally, the phrase “in violation of the law of nations” has been construed to mean “a violation by one or more individuals of those standards, rules or customs (a) affecting the relationship between states or between an individual and a foreign state, and (b) used by those states for their common good and/or in dealing inter se.” Lopes v. Reederei Richard Schroder, 225 F. Supp. 292, 297 (E.D. Pa. 1963) (footnote omitted). The argument that certain “universally recognized” torts qualify under the jurisdictional requirement of section 1350 is usually unsuccessful. Cohen v. Hartman, 634 F.2d 318 (5th Cir. 1981) (conversion of property); IIT v. Vencap, Ltd., 519 F.2d 1001 (2d Cir. 1975) (stealing); Abiodun v. Martin Oil Service, Inc., 475 F.2d 142 (7th Cir.), cert. denied, 414 U.S. 866 (1973) (fraud); Trans-Continental Inv. Corp. v. Bank of the Commonwealth, 500 F. Supp. 565 (C.D. Cal. 1980) (fraud). But see Filartiga v. Pena-Irala, 630 F.2d 876 (2d Cir. 1980) (section 1350 jurisdiction found in an action between two Paraguayan nationals for wrongful death by torture contrary to international law); Nguyen Da Yen v. Kissinger, 528 F.2d 1194 (5th Cir. 1975) (although not relied on by the court, unlawful removal of Vietnamese children by an INS“babylift” might fall under section 1350 jurisdiction); Abdul-Rahman Omar Adra v. Clift, 195 F. Supp. 857 (D. Md. 1961) (smuggling a Lebanese child into the United States on an Iraqi passport for the purpose of avoiding a Lebanese child custody law amounted to a tort and action was cognizable under section 1350).
However, even if, as in Trans-Continental, a district court conditioned its grant of jurisdiction on a requirement that the controversy implicate a treaty, those foreign nationals covered by a treaty of friendship, commerce, and navigation ought at least be able to meet the jurisdictional requirement of the federal court.
153. U.N. CHARTER, art. 1, para. 3. 154. Id., art. 55(c).
155. Id., art. 2, para. 2. See, e.g., Wright, National Courts and Human Rights--the Fujii Case, 45 Am. J. INT'L L. 62, 73 (1951); H. LAUTERPACHT, INTERNATIONAL LAW AND HUMAN RIGHTS 147-49 (1950); P. JESSUP, A MODERN Law of NATIONS—AN INTRODUCTION 91 (1948). This is, in any event, the prevailing scholarly opinion, and it now is the interpretation accorded the above provisions by the International Court of Justice. Advisory Opinion on the Continued Presence of South Africa in Namibia, 1971 I.C.J. 16 (1971).
States which are parties to the Charter have undertaken legal obligations with respect to human rights. The scope of those obligations, and specifically, the extent to which they correspond to provisions of the Universal Declaration of Human Rights, 156 is less clear. However, the Declaration appears to comprise not only a part of customary international law, 157 but also an authoritative interpretation of the Charter's human rights provisions. Indeed, the non-governmental Assembly for Human Rights declared in 1968, in the Montreal Statement, that the Universal Declaration “defines in important detail the ‘human rights and fundamental freedoms' which Members of the United Nations have in the Charter bound themselves to respect and protect. ” 158 Later that year, in Teheran, the International Conference on Human Rights (sponsored by the United Nations) stated that the Declaration “constitutes an obligation for members of the international community."159
Under United States law, if the Declaration of Human Rights is viewed as a binding interpretation of treaty obligations undertaken in the United Nations Charter, courts may use it to inform their judgment concerning questions of applicable law. 160 For purposes of determining Congress's will, it is clear that one should consider the Declaration in conjunction with the human rights provisions of the Charter. These provisions provide a moral standard by which to condemn the activities carried out in the hypothetical by THRUSH with CIA acquiescence.
vi. The International Covenant on Civil and Political Rights Numerous provisions of the International Covenant on Civil and Political Rights (hereinafter the “Covenant”) 161 which entered into force on March 23, 1976, relate to the conduct set forth above."
156. See supra note 53. 157. Id.
158. Montreal Statement of the Assembly for Human Rights, March 22–77, 1968 in 9 J. INT'L. COMMISSION JURISTS 94, 94-95 (1968).
159. Proclamation of Teheran, 23 U.N. GAOR, U.N. Doc. A/Conf. 32/41 (1968).
160. Rodriquez-Fernandez v. Wilkinson, 654 F.2d 1382, 1388 (10th Cir. 1981); Filartia v. Pena-Irala, 630 F.2d 876, 881–85 (2d Cir. 1980).
161. International Covenant on Civil and Political Rights, G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1967).
162. These include the right not to be “subjected to arbitrary or unlawful interference with .. privacy, family, home or correspondence ....” (art. 17); the right “to hold opinions without interference ... the right to freedom of expression (which) shall include freedom to seek, receive and impart information and ideas of all kinds . . . .” (art. 19); the right of “peaceful assembly” (art. 21); and the right to freedom of association with others ...." (art. 22). Id. at 52–53.
While the United States has not ratified the Covenant, it became a signatory on October 5, 1977. International law requires that a signatory state refrain from acts which would defeat the object and purpose of a treaty. 163 Under the hypothetical, United States support of and acquiescence in THRUSH"s activities in the United States would defeat the purpose of the Covenant.
c. Application to CIA-THRUSH Agreement The foregoing has reviewed the actions taken by Congress to express its will. The CIA's support of THRUSH in its activities in the United States, as found in the hypothetical, is clearly incompatible with that will. The hypothetical CIA-THRUSH relationship would be legal only if it disabled "Congress from acting upon the subject."164 “Presidential claims to a power at once so conclusive and preclusive must be scrutinized [under Jackson's analysis) with caution, for what is at stake is the equilibrium of our constitutional system.”165 The “appropriate conclusion,” stated by Professor Corwin in analyzing the Steel Seizure Case, applies here as well: Congress having entered the field its ascertainable intention supplies the law of the case. 166
III. TOWARDS A SOLUTION
However clear Congress's intent, that intent has not been carried out. From January 1, 1970, to January 1, 1979, according to the Justice Department, not a single registration took place under 50 U.S.C. $ 851, nor did the Justice Department ever bring a prosecution under that section. No prosecution was commenced under 18 U.S.C. § 951 (eight notifications were filed under that provision during that period) except to reinforce espionage cases.
A. Reasons For the Non-Enforcement of Existing Statutes Enforcement of the registration statutes has failed to occur for a number of reasons. The statutes are overbroad, the Executive lacks
163. Article 18, Vienna Convention on the Law of Treaties, supra note 58. 164. Justice Jackson wrote:
When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our
constitution. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637–38 ( Jackson, J., concurring).
166. Corwin, The Steel Seizure Case: A Judicial Brick Without Straw, 53 COLUM. L. Rev. 53, 64-66 (1953).