Congressional oversight of the AIT

By Peter Chen 陳正義  / 

Sun, Oct 09, 2016 - Page 6

Taiwan has been — literally — lucky in the recent sequence of US Foreign Service officers who have shepherded US diplomacy with Taiwan. Naturally, we at the Formosan Association for Public Affairs are delighted that the Board of Trustees for the American Institute in Taiwan (AIT) named John Norris the new managing director of the AIT’s Washington Office.

We have known Norris for decades and have been impressed by his creativity in shaping constructive policies that promote US interests in East Asia and especially by his understanding of Taiwan’s special relationship with our country.

Historically, the AIT’s leadership is selected from the ranks of the US Department of State’s most talented foreign service officers. Of course, one of the AIT’s most outstanding directors was James Lilley who himself had been a career intelligence officer — not a foreign service officer — before taking over at the AIT Taipei in 1982.

He was later deputy assistant secretary of state and twice performed with legendary vision, courage and leadership as US ambassador, first in South Korea and then in China. Lilley died in 2009, a passing that saddens us at Formosan Association for Public Affairs to this day.

Nonetheless, without going into too much detail, it must be said that the AIT board’s choices of senior officials have not always been ideal.

Which leads us to wonder: Where was congressional supervision? The Taiwan Relations Act, as an afterthought, mandates that the “appropriate committees of Congress shall monitor ... the operations and procedures of the Institute.”

However, there is precious little oversight in this regard. In many cases, stresses in US policies regarding Taiwan could have been remedied by the US Senate’s institutionalized “advice and consent” confirmation of AIT’s senior officials, the managing director in Washington, the director in Taipei, and the chairman and members of the AIT board of trustees.

The AIT is the only one of the three wholly US government-funded “non-government” defense and diplomatic entities whose directors are not subject to senate confirmation; the chiefs of the other two, the Millennium Challenge Corporation and the National Endowment for Democracy, both must have senate advice and consent.

The senate’s “advice and consent” are all the more necessary for the AIT because, unlike the Millennium Challenge Corporation and National Endowment for Democracy, the AIT has no independent purpose but to implement US government policy under the exclusive direction of the US Department of State. Department adviser Herbert Hansell said in his testimony on the creation of the AIT on Feb. 5, 1979, that “of course, all of the activities that would be conducted by the American Institute would be, by definition, on behalf of and with the consent of this [US] government.”

When the AIT was created by the Taiwan Relations Act, the then-deputy secretary of state assured the US Congress that the AIT would carry out all the functions “previously performed by our embassy in Taipei.”

The AIT’s articles of incorporation and its bylaws specify that its personnel are entirely the choice of the “Affairs’ Contracting officer’s representative,” that is the US Department of State. They further mandate that all of the institutes’ funding is provided by the department and under the department’s complete authority.

There was a minor scandal a decade or two ago, when the AIT’s visa “telex” fees, running several hundred thousand US dollars annually, were misappropriated into a slush fund for miscellaneous AIT expenses with little oversight and opaque accountability. Indeed, the US Department of State inspector-general reported in 2012 that the institute still received US$21 million from retained visa fees, a third of its annual operating budget.

The report said: “In the absence of the routine internal controls that operate inside the department, financial management of these funds is left in large measure to the experience and goodwill of the personnel responsible for management within the AIT itself.” Apparently, these problems have been remedied, but the episodes heightened sensitivities in both US Congress and the department to an incipient culture of unaccountability at the AIT.

In the Formosan Association for Public Affairs’ library, we have a copy of a letter from then-US secretary of state Cyrus Vance to then-US Senate Foreign Relations Committee chairman Frank Church dated Feb. 23, 1979, which tried to assuage Church’s concerns about the proposed American Institute in Taiwan’s accountability.

In it, Vance explained that “because [the AIT] is not an agency or instrumentality of the [US] government, and because its trustees are not officers of the United States, it would not be appropriate for the Senate to advise and consent to the appointment of trustees or officers.”

Instead, Vance pledged that “the names of prospective trustees and officers will be forwarded to the [US Senate] 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.”

However, to our knowledge, the department has not ever forwarded such names to the senate.

Under the US constitution, it is the president’s duty to nominate, “by and with the advice and consent of the senate, ambassadors, other public ministers and consuls.” Therefore, given that the AIT — by definition — performs (at the direction of the department) all the functions of an embassy, that its director is the equivalent of an ambassador, and that its consular officers all have been commissioned by the senate as consuls,” we at the Formosan Association for Public Affairs believe that making the AIT’s senior appointments subject to US senate confirmation is constitutionally desirable. At the very least, the senate must demand that the department honor Vance’s 1979 pledge to consult with the Senate Foreign Relations Committee on all the institutes top appointments, including, at least, the directors in Washington and Taipei, the chairman and the board members.

This simple adjustment would surely have an enduring and positive influence on the execution of US laws and policies with regard to Taiwan and reassure concerned citizens in the US that constitutionally appropriate congressional oversight of foreign relations is secure.

Peter Chen is the president of the Formosan Association for Public Affairs.