In my interminable research into the history of America’s relationship with Taiwan, my thoughts drift back 40 years to February 1979, a cold and snowy month which threatened to cool the Congress’s enthusiasm for a fight with President Jimmy Carter over his complicated and slapdash machinery for derecognizing Taipei. Arctic snowbanks and government shutdowns notwithstanding, the full memberships of the foreign relations committees in both houses of Congress convened their continuous series of hearings on the Carter Administration’s version of a “Taiwan Enabling Act” which stretched into the following month. On Taiwan, it was the second week of the jiwei (己未) “Year of the Ram,” and traditionally, the Ram’s Year is a year of “patience.” But it cannot have seemed, at the time, to be auspicious.
Yet, patience paid off for Taiwan. The clean legislation which emerged from the concurrent House and Senate consultations and deliberations was significantly more coherent than the original cut-and-paste drafts submitted by the State Department. The new and improved “Taiwan Relations Act” included two entire sections which Senator Jacob Javits (R-NY) described as “functionally equivalent to a security treaty” taking the place, to the horror of the State Department, of the expiring “US-ROC Mutual Defense Treaty.” On the other hand, the TRA preserved State Department language that ensured that Taiwan would be treated as the functional equivalent of an independent country in American law by American government entities on all levels, something State Department lawyers knew was essential to future US relations with Taiwan.
But the sections which were the least sexy were also the most abstruse and opaque to the untrained eye. They were the Potemkin bureaucracy of shadow go-betweens actually intended to execute the totality of official American relations with Taiwan, known as “The American Institute in Taiwan.” It was over these sections of vague descriptions of minimal congressional supervision and oversight, that the transcripts of Senate and House deliberations reflect the purblindness of eyeballs glazed-over.
The Congress had long been aware that “normal” diplomatic relations with China demanded that the United States have “abnormal” relations with Taiwan. At one point, the requirement that the US abandon Taiwan was so outrageous that even Chairman Mao Zedong (毛澤東) could not understand why the United States wanted to go through with it. “We have established diplomatic relations with the Soviet Union and with India,” he once explained to Secretary of State Henry Kissinger, “but they are not even as good as our relations with you.” Mao continued, “this issue is not an important one, the issue of the overall international situation is the important one.”
But in December 1978, Mao was dead, and his successor, Deng Xiaoping (鄧小平), anticipated a war with Vietnam and the concomitant nuclear threats from the Soviet Union. Deng suddenly relaxed the conditions for US recognition, no longer stipulating that the US cease arms sales to Taiwan, or that all treaties and agreements be invalidated. This came as a surprise in the State Department which had developed only inchoate notions of how an “unofficial,” non-governmental corporation could assume the complex and interconnected burdens of America’s official relations with Taiwan. As the late David Dean describes it in his important memoir “Unofficial Diplomacy,” an “American Institute in Taiwan” was pulled together on an ad hoc basis by the late Richard Holbrooke, Assistant Secretary of State for East Asian Affairs, after the December 15 normalization agreement and hastily staffed with retired foreign service officers on the authority of Secretary Holbrooke’s initials.
Nowhere, for example, does David Dean discuss consultations with the Congress on staff, or anything resembling the constitutionally-prescribed “advice and consent” that attends any president’s nomination of persons entrusted as “Ambassadors, other public Ministers and Consuls.”
As I skim through decades of declassified State Department “Office of the Inspector General” inspection reports on the American Institute in Taiwan, I see the same thread weaving its way through all of them: there is a lack of substantive oversight by the State Department’s own Senate-confirmed officers of AIT’s operations. In fact, virtually all of the improvements to AIT’s oversight since 1979 have come with legislation to place Senate-confirmed officers in AIT, including active duty officers of the military and navy as well as the foreign service. 2002 amendments to the Foreign Service Act, and statutory mandates that all AIT budget and accounting conform to State Department standards are among the changes.
Much is left to be done. In 2012, the State OIG offered 27 recommendations on the operations of AIT’s Washington office which, when read in their entirety, suggest that AIT Washington serves no useful purpose, and is overseen by a board of trustees “who play no major role, aside from attending quarterly board meetings.” The trustees exercise little oversight of AIT, their minutes “suggest a high degree of informality and indicate no decision-making activities.
Forty Lunar New Years ago, the Congress was most concerned that the failure to have top leadership at AIT which was Senate-confirmed would result in a culture of unaccountable finances, unmoored operations and an environment of carelessness. Moreover, without Senate advice and consent, who knew how many charlatans, mountebanks and political favor-seekers a disinterested White House might thrust upon poor Taiwan. Worries were allayed somewhat by the then-secretary of state. On February 22, 1979, Senator Javits pointed out a letter the Senate Foreign Relations Committee received from Secretary Vance “which calls for prior notice to this committee of an agreement not to proceed with appointments of trustees or officers of the American Institute in Taiwan if there is objection from this committee.” The following day, the Secretary’s letter was published. It said, “… the names of prospective trustees and officers will be forwarded to the Foreign Relations Committee. If the Committee expresses reservations about a prospective trustee or officer, we will undertake to discuss and resolve the matter fully with the Committee before proceeding. This arrangement will enable the Institute to retain its character as a private corporation and enable the Senate to participate in the selection of trustees in an appropriate manner.”
I know of only one AIT Director whose name was floated informally to the SFRC, and that one was only sent to the Chairman. He was a diplomat of long and distinguished service, and his name drew no comment other than a gratified smile from Chairman Jesse Helms (R-NC). Nevertheless, I am not sure that back-channel whispers, winks and nods pass constitutional muster.
After forty years, the “Taiwan Relations Act” has endured and persisted at the core of America’s successful policies toward Taiwan, particularly in the defense and security realms. It also has provided a firm statutory foundation for the treatment in US law of Taiwan as an independent, sovereign state. But it is clear that the American Institute in Taiwan, which is limited to the function of a fig-leaf in the grand scheme of things, must be treated as any other wholly-owned “unofficial” government enterprise which spends only the taxpayers’ money and performs only the duties entrusted to it by the President: its governing board and officers must be Senate-confirmed.
John J. Tkacik, Jr. is a retired US foreign service officer who has served in Taipei and Beijing and is now director of the Future Asia Project at the International Assessment and Strategy Center.
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