Congressional oversight of AIT

Congressional Oversight of AIT

 by Peter Chen

Peter Chen is the President of the Formosa Association for Public Affairs.

Taiwan has been - literally - lucky in the recent sequence of superb American foreign service officers who capably have shepherded U.S. diplomacy with Taiwan.  Naturally, we at the Formosan Association for Public Affairs (FAPA) are delighted with the news that John J. Norris has been named by the Board of Trustees for the American Institute in Taiwan as the new Managing Director of AIT’s Washington Office.  FAPA’s U.S. members have known Mr. Norris for decades and have been impressed by his creativity in shaping constructive policies that promote America’s interests in East Asia and especially by his understanding of Taiwan’s special relationship with our country.

Historically, AIT’s leadership is selected from the ranks of the State Department’s most talented foreign service officers.  Of course, one of AIT’s most outstanding directors was the late Ambassador James R. Lilley who himself had been a career intelligence officer (not an FSO) before taking over at AIT Taipei in 1982. He later was Deputy Assistant Secretary of State and twice performed with legendary vision, courage and leadership as U.S. ambassador, first in South Korea and then in China.   Ambassador Lilley died in 2009, a passing that continues to sadden us at FAPA to this day.

Nonetheless, without getting into too much detail, it must be admitted 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 - ... (2) the operations and procedures of the Institute.”  Yet, there has been precious little oversight in this regard.   In many cases, stresses in U.S. policies regarding Taiwan could have been remedied by the 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.  AIT, in fact, is the only one of the three wholly U.S. 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 AIT because, unlike the MCC and NED, the American Institute in Taiwan has no independent purpose but to implement U.S. government policy under the exclusive direction of the Department of State. In fact, the State Department’s Legal Advisor, Herbert Hansell, emphasized in his testimony on the creation of AIT (February 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 Government.”   

When AIT was created by the Taiwan Relations Act, the then deputy secretary of state assured the Congress that AIT would carry out all the functions “previously performed by our Embassy in Taipei.”  AIT’s articles of incorporation and its bylaws specify that AIT’s personnel are entirely the choice of the “Contracting Officer’s Representative,” i.e. the Department of State.  They further mandate that all of AIT’s operating funds are provided by the Department of State and under the department’s complete authority.  There was a minor scandal a decade or two ago, when AIT’s visa “telex” fees, running several hundred thousand dollars annually, were misappropriated into a slush fund for miscellaneous AIT expenses with little oversight and opaque accountability.  Indeed, the State Department’s Inspector General reported in 2012 that AIT still received $21 million from retained visa fees, a third of its annual operating budget.  The State IG report noted: “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 AIT itself.”   Apparently, these problems have been remedied, but the episodes heightened sensitivities in both Congress and the State Department to an incipient culture of unaccountability at AIT.

In FAPA’s library, we have a copy of a letter from Secretary of State Cyrus Vance to Senate Foreign Relations Committee Chair Frank Church dated February 23, 1979, which tried to assuage Senator Church’s concerns about the proposed “American Institute in Taiwan’s" accountability.  In it, he explained that “because [AIT] is not an agency or instrumentality of the 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, Secretary Vance pledged that “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.”  Yet, to our knowledge, the State Department has not, in fact, ever forwarded such names to the Senate.

Under the 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 AIT - by definition- performs (at the direction of the Department of State) 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 FAPA believe that making AIT’s senior appointments subject to Senate confirmation is constitutionally desirable.  At the very least, the Senate must demand that the Department of State honor Secretary of State Vance’s 1979 pledge to consult with the SFRC on all AIT’s top appointments, including, at least, the directors in Washington and Taipei, the Chairman and the board members.

This simple adjustment will surely have an enduring and positive influence on the execution of U.S. laws and policies with regard to Taiwan and reassure concerned citizens in the United States that constitutionally appropriate Congressional oversight of foreign relations is secure.

 Peter Chen is the President of the Formosa Association for Public Affairs.