TESTIMONY OF MICHAEL J. GLENNON BEFORE THE SUBCOMMITTEE ON ASIAN AND PACIFIC AFFAIRS COMMITTEE ON FOREIGN AFFAIRS UNITED STATES HOUSE OF REPRESENTATIVES WASHINGTON, D.C.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP87M01152R000500620011-2
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 15
• Document Creation Date: December 22, 2016
• Document Release Date: April 1, 2010
• Sequence Number: 11
• Publication Date: February 7, 1985
• Content Type: MISC

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TESTIMONY OF
MICHAEL J. GLENNON
before the
SUBCOMMITTEE ON ASIAN AND PACIFIC AFFAIRS
COMMITTEE ON FOREIGN AFFAIRS
UNITED STATES HOUSE OF REPRESENTATIVES
WASHINGTON, D.C.
FEBRUARY 7, 1985
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TESTIMONY OF MICHAEL J. GLENNON
Mr. Chairman and Members of the Subcommittee:
Let me begin by thanking the Subcommittee for inviting me to
be here today, and by commending the Subcommittee for its inter-
est in the acute and recurring problem of harassment, intimid-
ation, and surveillance of residents of the United States by
agents of the intelligence services of foreign countries.
I participated in a study of that subject in the late 1970's
while I was legal counsel to the Senate Foreign Relations Commit-
tee. Obviously I am unable to engage in any specific discussion
of its contents here today. There is, however, a vast amount of
information on the public record concerning this subject. The
following testimony responds to specific questions put to me by
the Subcommittee. It is largely a synopsis of an article I wrote
that appeared last year in the Harvard International Law Journal.
(The article is entitled "Liaison and the Law: Foreign Intellig-
ence Agencies' Activities in the United States," and appears at
25 Harvv.Int_L_J_ 1 [Winter, 1984].) That article sets forth my
thoughts in greater detail and also includes extensive citations
to the public record. With the Chairman's permission, I would
ask that that article appear at the conclusion of my remarks.
A. THE DIMENSIONS OF THE PROBLEM
Mr. Chairman, foreign intelligence agencies -- including
those of Taiwan -- have conducted extensive harassment, intimida-
tion, and surveillance of United States residents here on Amer-
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TESTIMONY OF MICHAEL J. GLENNUN
ican soil. Typically, these activities are supervised by case
officers operating under diplomatic cover, although some may pose
as students, businessmen, or tourists. The case officers direct
agents, who are "tasked" to carry out specific intelligence
missions. The most frequent is surveillance, including the infil-
tration of groups thought to be inimical to the foreign regime,
attendance at demonstrations, and similar activities directed at
identifying critics of the regime. Another frequent mission is
the disruption of anti-regime activities, such as speeches, dem-
onstrations, and organizational planning.
Once the critics are identified, several things may occur.
They may be threatened or assaulted. Relatives in their homeland
may be harmed. Upon returning home, the critic may be imprisoned,
possibly tortured. On rare occasions, he or she may be murdered
here in this country.
B. THE EXISTING STATUTORY FRAMEWORK
Certain of these activities have violated three federal
statutes that require the registration of foreign agents. Prin-
cipal among them is the Foreign Agents Registration Act, 22
U.S.C. 611-621, which requires a person who, within the United
States . . . solicits, collects, disburses, or dispenses contrib-
utions, loans, money or other things of value for or in the-
interest of [a] foreign principal . . to register with the
Attorney General." In addition, the so-called Notification Act,
18 U.S.C. 951, requires that non-diplomats who act within the
United States as agents of a foreign government register with the
Secretary of State. A third provision, 50 U.S.C. 851, requires
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that certain persons who have received instructions in espionage
or counterespionage register with the Attorney General. While
diplomats are excepted from the requirements of each statute by
their terms, persons acting on their behalf are not.
Furthermore, some of these activities appear to have vio-
lated one of the civil rights acts, 18 U.S.C. 242, which imposes
criminal penalties for willfully depriving any inhabitant of the
United States of his or her constitutional rights. (Resident
aliens stand on essentially the same footing as citizens under
the Bill of Rights.)
The United States intelligence community has known for some
time that these acts have been taking place. It has made occa-
sional protests, but these appear to have been ero forma. Not-
withstanding specific knowledge of these acts, it has in some
cases continued to conduct liaison relationships with the agency
in question. These relationships have embraced, among 'other
things, training programs, information-sharing, and organiza-
tional support. In some instances that support has continued.
Let us be clear: the United States intelligence community has
continued to advise and train some of the same foreign services
that have used their newly-acquired skills to violate United
States law. And United States intelligence agencies have in some
instances made no real effort to ensure that the skills they have
imparted are not used in the United States against residents of
our country.
Mr. Chairman, I do not suggest any impropriety in liaison
relationships between the United States intelligence community
and foreign agencies that respect the constitutional rights of
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United States residents. These relationships provide executive
decision-makers with extraordinarily useful information, informa-
tion not otherwise available. Our national security is material-
ly advanced as a result.
I do suggest, however, that indifference can become acquies-
cence; acquiescence, consent; and consent, criminal liability as
well as moral responsibility. If the United States intelligence
community has not crossed that final line, it has come perilously
close. And if this Subcommittee -- or any congressional commit-
tee -- is serious about getting to the bottom things, it must
look carefully and purposefully at the whole gamut. of relevant
liaison relationships.
C. WEAKNESSES IN THE EXISTING STATUTORY FRAMEWORK
So much for the existing statutory framework. The weak-
nesses in that framework are evident. The registration statutes
are overbroad. The Executive lacks the will to enforce them, for
reasons I will discuss in a moment. And two proof problems exist:
either the foreign agent must register himself, which is unlike-
ly, or the United States intelligence community must furnish the
information needed to prosecute, which could compromise sensitive
intelligence sources.
Similar proof problems arise in connection with the civil
rights statutes. Moreover, at least with regard to the case
officers (as opposed to the agents), diplomatic immunity provides
a shield.
I think the "Solarz Amendment" of 1981 was a step in the
right direction, but it now appears that the Amendment has had
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little effect; experience with it suggests 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. Restrict-
ing 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.
D. INSTITUTIONAL AND POLITICAL IMPEDIMENTS
TO EFFECTIVE LAW ENFORCEMENT
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 responsible 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 en-
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gaged 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 constitu-
tionally 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 dis-
proportionately 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 violator is an agent without diplomatic immunity, he can be
prosecuted. Unfortunately, as a practical matter, further in-
stitutional impediments limit the availability of either remedy.
First, the Central Intelligence Agency has a strong incen-
tive 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 risk the disclosure
of sensitive intelligence sources and methods, since the question
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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 mech-
anisms 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 re-
sponse 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 remedy obviously becomes
moot.
E. METHODS OF STRENGTHENING INSTITUTIONAL MECHANISMS
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 agen-
cies 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 [19813)
dropped this prohibition; it provides simply that "[n]o agency of
the Intelligence Community shall participate in or request any
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person to undertake activities forbidden by this Order." In
contrast, the previous executive order governing domestic intel-
ligence operations (E.O. 12,036; 43 Fed. Reg. 3674 [1979]) pro-
vided that "[n]o agency of the Intelligence Community shall
request or otherwise encourages directly or indirectly, any per-
son, organization, or government agency to undertake activities
forbidden by this Order or by apRlicable law." [Emphasis added.]
Obviously the previous order was much tighter. If the Administra-
tion 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 harassment, 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 intel-
ligence agencies' activities in the United States. The applica-
tion of reciprocal diplomatic norms by foreign governments would
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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 in-
telligence 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 people here in
our own country.
F. METHODS OF STRENGTHENING THE STATUTORY FRAMEWORK
Mr. Chairman, I am not optimistic that the necessary admin-
istrative 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. Nonethe-
less, it seems unlikely that the Executive will take the initi-
ative, 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 legis-
lative remedies that I believe might be appropriate.
First, the Solarz Amendment might be strengthened by requir-
ing the President to transmit a written determination to Congress
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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 in-
telligence 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 people here in
our own country.
F. METHODS OF STRENGTHENING THE STATUTORY FRAMEWORK
Mr. Chairman, I am not optimistic that the necessary admin-
istrative 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. Nonethe-
less, it seems unlikely that the Executive will take the initi-
ative, 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 legis-
lative remedies that I believe might be appropriate.
First, the Solarz Amendment might be strengthened by requir-
ing the President to transmit a written determination to Congress
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with respect to any country that engages in the pattern of activ-
ities 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 evid-
ence 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 rela-
tions is generally thought to be a plenary power of the Pres-
ident. 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 diplo-
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mats of recognized countries. The scope of CCNAA immunity is
narrower, and more important for present purposes, it is confer-
red by the President pursuant to statutory authorization. The
Taiwan Relations Act (in section 10; 22 U.S.C. 3309(c)) author-
izes 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 appro-
priate for Congress to repeal this provision of the Taiwan Rela-
tions 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 auth-
orities 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
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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
G. CONCLUSION
Mr. Chairman, at one level, the most painful level, the
problem we have been discussing today is the problem of relative-
ly few individuals: Henry Liu, Wen-chen 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 Amer-
icans. For' every resident of the United States is constitution-
ally 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
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TESTIMONY OF MICHAEL J. GLENNUN
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 Con-
gress responds accordingly.
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