INTELLIGENCE IDENTITIES PROTECTION LEGISLATION

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83M00210R000300060002-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 120
• Document Creation Date: December 20, 2016
• Document Release Date: February 28, 2007
• Sequence Number: 2
• Publication Date: June 24, 1980
• Content Type: REGULATION

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INTELLIGENCE IDENTITIES PROTECTION LEGISLATION
HEARINGS
SELECT COMMITTEE ON INTELLIGENCE
UNITED STATES SENATE
NINETY-SIXTH CONGRESS
SECOND SESSION
S. 2216, ET AL.
INTELLIGENCE IDENTITIES PROTECTION LEGISLATION
41;
U.S. GOVERNMENT PRINTING OFFICE
67-1440 WASHINGTON : 1980
For sale by the Superintendent of Documents, U.S. Government Printing Office
Washington, D.C. 20402
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SENATE SELECT COMMITTEE ON INTELLIGENCE
[Established by S. Res. 400, 94th Congress, 2d session]
BIRCH BAYH, Indiana, Chairman
BARRY GOLDWATER, Arizona, Vice Chairman
ADLAI E. STEVENSON, Illinois JAKE GARN, Utah
WALTER D. HUDDLESTON, Kentucky CHARLES MCC. MATHIAS, JR., Maryland
JOSEPH R. BIDEN, Delaware JOHN H. CHAFEE, Rhode Island
DANIEL P. MOYNIHAN, New York RICHARD G. LUGAR, Indiana
DANIEL K. INOUYE, Hawaii MALCOLM WALLOP, Wyoming
HENRY M. JACKSON, Washington DAVID DURENBERGER, Minnesota
PATRICK J. LEAHY, Vermont
ROBERT C. BYRD, West Virginia, Em Officio Member
HOWARD H. BAKER, JR., Tennessee, Ew Officio Member
WILLIAM G. MILLER, Staff Director
EARL D. EISENHOWER, Minority Staff Director
AUDREY H. HAIRY, Chief Clerk
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' CONTENTS
HEARING DAYS
Page
Tuesday, June 24, 1980____________________________________________
1
Wednesday, June 25, 1980------------------------------------------
71
TUESDAY, JUNE 24, 1980
Hon. David Durenberger, A U.S. Senator from the State of Minnesota
5
Frank C. Carlucci, Deputy Director of Central Intelligence; accompanied
by Daniel Silver, General Counsel---------------------------------
6
Robert L. Keuch, Associate Deputy Attorney General_________________
17
Edward O'Malley, Assistant Director, Federal Bureau of Investigation--
34
Hon. Charles E. Bennett, A Representative in Congress from the State
of Florida------------------------------------------------------
36
Hon. Alan K. Simpson, A U.S. Senator from the State of Wyoming-----
38
John F. Blake, president, Association of Former Intelligence Officers ac-
companied by John Warner, legal adviser__________________________
45
John Stockwell, Author of "In Search of Enemies"____________________
52
WEDNESDAY, JUNE 25, 1980
The Honorable Lloyd Bentsen, a U.S. Senator from the State of Texas__-
71
Floyd Abrams-----------------------------------------------------
74
Morton H. Halperin, accompanied by Allen Adler, on behalf of the Ameri-
can Civil Liberties Union_________________________________________
87
Raymond J. Waldmann of Schiff, Hardin & Waite, intelligence consultant
to the Standing Committee on Law and National Security of the American
Bar Association-------------------------------------------------
99
Ford Rowan, attorney, and former NBC correspondent----------------
106
MATERIAL FOR THE RECORD
Opening remarks of Senator Walter D. Huddleston____________________
2
Prepared statement of Senator Dave Durenberger---------------------
5
Letter from Benjamin J. Civiletti, Attorney General to Chairman, Senate
Select Committee on Intelligence__________________________________
25
Prepared statement of Robert L. Keuch______________________________
25
Statement of John F. Blake before the House Permanent Select Commit-
tee, January 30, 1980--------------------------------------------
47
Prepared statement of John Stockwell ________________________________
52
Prepared statement of Jerry J. Berman and Morton H. Halperin --------
91
Prepared statement of Raymond J. Waldmann________________________
102
Prepared statement of Ford Rowan__________________________________
109
Telegram from the National Military Intelligence Association to Senate
Select Committee on Intelligence, June 23, 1980_____________________
116
APPENDIXES
Appendix I.-Letter from Arthur B. Sackler, general counsel of National
Newspaper Association___________________________________________
117
Appendix II.-Letter from Robert Lewis, chairman of Freedom of Infor-
mation Committee, Society of Professional Journalists________________
118
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INTELLIGENCE IDENTITIES PROTECTION
LEGISLATION
TUESDAY, JUNE 24, 1980
U.S. SENATE,
SELECT Coi &rrrEE ON INTELLIGENCE,
Washington, D.C.
The committee met at 10 a.m., pursuant to notice, in room 1202,
Dirksen Senate Office Building, Hon. Birch Bayh (chairman of the
committee) presiding.
Present: Senators Bayh, Leahy, Garn, Chafee, and Durenberger.
Chairman BAYa. May we bring our committee deliberations to order
this morning.
The committee's hearings this week will focus on a problem of deep
concern to the committee and I think to most thoughtful Americans.
It is the betrayal of trust by persons who are pledged to protect the
lives of American intelligence agents and who break that pledge by
disclosing the identity of intelligence agents.
Our Nation asks those who serve our intelligence agencies abroad to
take risks for the good of their country. Fortunately for all of us many
dedicated Americans are prepared to take this risk. Those risks are
real and CIA intelligence officers have in fact lost their lives in the line
of duty overseas.
At the same time we face the fact that at least one renegade employee
of the CIA has undertaken to disclose the names of intelligence officers
serving abroad and by doing so placed their lives in great jeopardy. As
the result, a great many proposals have been introduced in this Con-
gress to make it a Federal criminal offense if a present or former
Government employee who has been given access to information iden-
tifying intelligence agents uses that position of trust and intentionally
discloses the identity of agents working abroad.
Such criminal statute was an essential part of the intelligence charter
bill introduced earlier this year. However, the committee decided in
early May that it was impossible to bring comprehensive charter
legislation to the Senate floor this year and postponed that effort until
the next session of Congress.
Instead the committee reported and the Senate passed on June 3,
the Intelligence Oversight Act of 1980, which limits reporting of in-
telligence activities to two intelligence committees and established a
presumption of prior notice of significant intelligence activities, in-
cluding covert operations.
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As part of the agreement to report out the Oversight Act it was
decided that the committee would continue its active consideration of
other issues raised by the charter bill. The first of these issues is before
us today. We intend to consider other areas in this legislation so that
the committee can prepare to move ahead actively with additional
legislation that is necessary to place the intelligence committee on a
firm legal foundation.
The question of a criminal statute has been complicated for the com-
mittee by the large number of different approaches that have been pro-
posed. For the purpose of these hearings we have asked the witnesses
to address the provisions of five bills and the proposals submitted on
behalf of the administration by Admiral Turner.
We want to deal with this problem. I have been one of those who
have felt that it is critical that we have a comprehensive charter, that
indeed we make our intelligence community as effective as it possibly
can be and at the same time protect the rights of Americans. I have
done everything I know how to do and will continue to do what I can
to recognize the important oversight role of the Congress.
Having said this, and being one Member of the Senate who I think
the record will show has been a strong proponent of the protection of
the rights of the individual citizens of this country, I nevertheless
find it abhorrent that some employees or former employees of our in-
telligence community might be prepared, for reasons that appear good
to them, to violate the sacred oath they take to protect the informaion
that is theirs while they are working within the intelligence community.
I find that practice abhorrent, unacceptable and am prepared to
support legislation that will say that anyone who undertakes that kind
of activity does so at his own peril and should go to jail if indeed he
violates that kind of pledge and jeopardizes the lives of others who
are serving their country.
We are trying to find the best way to deal with this. I appreciate
the interest that has been expressed by my colleagues on the committee,
the distinguished colleague from Utah, the distinguished colleague
from Rhode Island who in his typical fashion of cooperation did not
propose an amendment to the oversight bill as it went through the com-
mittee and who is here today, as well as the other members of the com-
mittee who share a concern for resolving this problem.
[The opening remarks of Senator Huddleston are as follows:]
OPENING REMARKS OF SENATOR WALTER D. HUDDLESTON, HEARINGS ON
PROPOSED AGENTS' IDENTITIES STATUTES
Many loyal and decent Americans work for the intelligence agencies of this
country. They work long and hard to help give our country the strong and ef-
fective intelligence system it needs in today's world. Given the secrecy necessary
to their work, most of their efforts must go unrecognized in the outside world. In
many instances, even the families and closest associates of these individuals can-
not be privy to the nature of their work. Such people assume a solemn responsi-
bility with their jobs ; they are entrusted in the course of their work with some
of the most sensitive intelligence information in the possession of the United
States Government. They are granted access to this material on the condition
that they agree in writing not to disclose it publicly without appropriate au-
thorization. Theirs is not an easy task. It takes an extraordinary kind of person
to work within such strictures. It is fortunate that there are such dedicated,
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patriotic citizens working within the ranks of the U.S. intelligence community.
Most of these people handle their responsibility admirably, respect the condi-
tions under which they work, and do not abuse their privilege.
A few, however, do not. With increasing regularity these days, we learn of
individuals who fail to uphold the commitment they have made to maintain
the confidentiality of the information with which they work. The flood of leaks
of intelligence information in recent years has been alarming. One kind of leak
is especially irresponsible, it seems to me. I refer to the revelation of the iden-
tities of U.S. intelligence agents which appears to be in vogue these days. Certain
parties in our society have made it their business to publish lists of people they
claim are working for U.S. intelligence agencies overseas. They are prompted,
they assert, by the highest of principles, as if by exposing these names, they are
helping to eliminate, one man at a time, the evils of U.S. intelligence activities
overseas and the perils of American interventionism. Their approach is naive,
but the tactics they employ are terribly reckless. It is not an idea or a principle
that lies in the balance, it is the lives and livelihoods of people-of individuals
who serve their country under cover overseas, performing intelligence missions
necessary to the security of their fellow citizens and otherwise furthering the
principles for which this nation stands.
There is an impression abroad in certain quarters that intelligence activities,
by virtue of their clandestine nature alone, are inherently suspect-and that
therefore all facets of intergovernmental and international relations should be
open to public scrutiny. Such reasoning is simply wishful thinking in the com-
plicated times in which we live. We demand that our intelligence agencies act
in a responsible manner ; we have intelligence oversight committees in each
house of Congress to help ensure that they do, but we cannot reasonably ask to
be aware of every detail of their dealings. Often sensitive tasks which can be
crucial to the formulation and conduct of a sensible foreign policy lie in the
hands of the country's clandestine service. In short, in a number of instances,
confidentiality is not only a useful adjunct to but a key component of our rela-
tionships with other nations. To reveal the identities of people serving under
cover abroad or to expose their relationship with U.S. intelligence services would
radically reduce if not completely destroy their effectiveness in accomplishing
their mission overseas. And yet this is precisely what some individuals are
dead set on doing. A recent book of this genre, Dirty Work II, features an appen-
dix of biographies of individuals alleged to be U.S. intelligence agents overseas.
This "who's who" listing is entitled "Naming Names." Such naming of names
must stop.
Efforts are currently underway in the U.S. Congress to bring this practice to
a halt. I myself strongly support a provision which would prescribe a criminal
penalty for anyone who "having or having had authorized access to classified in-
formation identifying officers, employees, agents, or sources of operational assist-
ance of U.S. intelligence agencies, intentionally discloses this information to
an individual not authorized to receive it." The language of this provision, drawn
from S. 2284, as introduced, has been very carefully framed. It would subject
employees and former employees of U.S. intelligence agencies who intentionally
reveal the identities of U.S. intelligence agents overseas to a penalty of up to
$50,000 or imprisonment for up to ten years or both. The limits on prosecution
are designed in particular to protect a journalist or publisher who might print
material of this nature which had been released to him by a present or former
employee of a U.S. intelligence agency. This is an area where we as lawmakers
must exercise great caution in order to safeguard the First Amendment free-
doms guaranteed to our citizens under the Constitution.
The Administration would prefer to apply the criminal penalty more broadly,
to cover anyone who released identities of agents. Other pieces of legislation
currently pending before Congress also seek to extend the application of the
criminal statute to cover journalists and publishers. For example, S. 2216, the
Intelligence Reform Act of 1980, introduced by Senators Moynihan, Jackson,
Wallop and others, would cover anyone who "with intent to impair or impede
the foreign intelligence activities of the United States discloses to any individual
not authorized to receive classified information" the identities of U.S. intel-
ligence agents overseas. I believe such wording is too broad and might have
a "chilling effect" on legitimate discussion of CIA activities. This judgment has
been borne out by the views of a number of prominent attorneys around the
country.
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Leaks must be stopped. Ultimately, it is not the responsibility of the press
or the general public to see that this is done. It is the responsibility of those
who have undertaken a position of trust in the government. Any statute aimed
at them is necessary but must be carefully drafted. The Select Committee on
Intelligence has been reviewing the issues involved as part of the process of
writing comprehensive charter legislation for the U.S. intelligence agencies. I
am happy to hear additional thoughts on these matters. I myself view such a
statute as an integral part of the package of intelligence legislation referred
to as "charters".
Chairman BAYH. Do my colleagues have any comment to make?
Senator GARN. Mr. Chairman, I will say while we are pausing I have
no prepared statement but only briefly to say how strongly I support
legislation to attempt to solve this problem. The Philip Agees and
Stockwells of this world should be punished. In my opinion, their
actions border on treason and we must have a legislative vehicle to deal
with those types of people who would endanger the lives of their
colleagues and the security of this United States for their personal
financial gain.
Chairman BAYH. The Senator from Rhode Island?
Senator CIIAFEE. Thank you, Mr. Chairman.
First of all, I would like to thank you for holding these hearings.
I know your record as far as protection of individual rights is cer-
tainly not surpassed in this Congress and I applaud your willingness
to proceed with this area since you view it, as I do, as one of extreme
importance to our Nation and to those individuals who are serving our
Nation.
Last fall, Mr. Agee and his colleagues published a book, "Dirty
Work II : The CIA in Africa," which reveals the names of 729 persons
which they claim are CIA officers who serve or are now serving over-
seas in Africa. In his introduction to the book Agee stated that his in-
tention was "to expose * * * clandestine operations."
In the last few weeks Covert Action Information Bulletin, a maga-
zine whose stated purpose is to destroy the effectiveness of the Central
Intelligence Agency, has printed the names and countries and assign-
ments of an additional 38 alleged CIA agents, listing them in the rear
here alphabetically by country.
It is my opinion, Mr. Chairman, that this willful disclosure of the
names of persons who are lawfully engaged in intelligence work for
this Nation falls in the same category, as the Senator from Utah said,
as an act of treason.
Yet as we speak here today there is no law in this country which
can be used effectively to prosecute individuals who make their living
by the practice of "naming names," as this column in Covert Action
Bulletin is entitled. I find this very difficult to accept.
Mp purpose in asking for these hearings, and I know the purpose
of all of us here today, is to provide an open and public forum in which
this important issue can be discussed and resolved. We have before us
a number of leaislative proposals-I put in one, others have been put
in-which address the issue of protection of intelligence identities
and we have a number, of course, of highly qualified witnesses who
are able to make judgments about these proposals.
It is my hope in the 2 days allotted to us we can come up with a
legislative proposal which will help this Government and this Nation
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to protect itself and its people from those whose stated intention is to
damage, both the country and the individuals.
I realize these are difficult and controversial issues. Tomorrow we
will hear from some representatives of the press who oppose this
legislation but nonetheless I believe it is vitally important to our
country that we stop this hemorrhaging of sensitive information.
So I thank you, Mr. Chairman.
Chairman BAYH. The Senator from Minnesota.
TESTIMONY OF HON. DAVID DURENBERGER, A U.S. SENATOR
FROM THE STATE OF MINNESOTA
Senator DURENSERGER. Thank you, Mr. Chairman.
I express my appreciation to the chairman for the coffee and I do
have a statement and I will not take the time to read it into the rec-
ord. But I would ask that it be introduced in the record.
I will just add one additional comment that comes from our ex-
perience with charters, that everyone so far today and, I am sure
everyone on this committee is going to express himself with the con-
cerns that we have, the need to take corrective action.
You in your statement, Mr. Chairman, listed a long series of bills
and amendments that have been introduced. I think my great con-
cern is that we are going to fall all over ourselves with our combina-
tion of concerns and end up without a specific piece of legislation on
which we can all agree. Obviously I need not lecture any member
of this committee or anybody in the audience on the issue of give and
take, if you will, in the process of arriving at a conclusion.
I think in this particular case it is absolutely essential. While there
are strong principles involved here with the issue that we are in-
volved in on both sides, the existence of those principles certainly
does not make it impossible for us to put together an approach that
will satisfy the principles involved on all sides because it is so im-
portant that we take action and that we take it as soon as possible.
I trust that my statement reflects that as will my questions to the
witnesses.
[The prepared statement of Senator Dave Durenberger follows:]
PREPARED STATEMENT BY SENATOR DAVE DuRENBERGER
In holding these hearings, the Senate Select Committee on Intelligence is
embarking on an important-and somewhat difficult-endeavor. Our 'efforts
are important because employees and agents of U.S. government agencies are
endangered, and their effectiveness impaired, by persons who use disclosure as
a weapon in the campaign to undermine the effectiveness of our intelligence
services. And these efforts are difficult because the legislative remedy that we
construct must be effective without intruding upon the constitutional rights
of our fellow citizens.
The disclosure of agents' identities is an immoral, intolerable act. It bears
no relation to whistleblowing. The actions of Philip Agee and others have ex-
posed honorable public servants to personal peril and reduced their effective-
ness in their chosen careers.
These are acts of moral callousness. They go beyond the norms of the American
system, and represent a philosophy in which the end justifies the means and
politics outweighs humanity. Small wonder, then, that we often find those who
have disclosed agents' identities appearing in the pages of Soviet propaganda
organs, naming purported agents while villifying American policy. And small
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wonder that both our intelligence agencies and the American people are outraged
by this situation.
It is clear that the disclosure of agents' identities must be stopped. But there is
not yet a clear consensus on how this should be done. We need to counter those
who use classified information to expose agents ; but we want a law that is used
successfully, rather than one that clogs the lawbooks without ever leading to
prosecutions. We want to block a source of information that has been used in c
the media ; but we do not want to infringe upon the constitutional rights of
a free press and a free people.
I hope that as we examine the several bills before us, we will all keep open
minds regarding the means to our common end. It would be ironic if, in our haste
to correct this wrong, we were party to the creation of new wrongs.
I look forward to a reasoned discussion of the merits and difficulties in the
various approaches. It is a particular pleasure to see that this set of hearings will
feature both the Justice Department and the intelligence agencies, both the ACLU
and the Association of Former Intelligence Officers. I hope that some of the po-
litical battlelines that formed over intelligence charters will be blurred a little,
as we all work together to frame a law that is both effective and in keeping with
a free society.
Chairman BAYH. Thank you, Senator Durenberger.
We are fortunate to have a man who is highly qualified to speak on
the subject and the country is fortunate to have him serving in his pres-
ent capacity, the Deputy Director of the Central Intelligence Agency,
Mr. Frank C. Carlucci. Mr. Carlucci, it is good to have you with us.
TESTIMONY OF FRANK C. CARLUCCI, DEPUTY DIRECTOR OF
CENTRAL INTELLIGENCE; ACCOMPANIED BY DANIEL SILVER,
GENERAL COUNSEL
Mr. CARLUCCI. Thank you, Mr. Chairman. I am accompanied by our
General Counsel, Mr. Daniel Silver.
Mr. Chairman, I want to thank you and the other distinguished
members of this committee for the opportunity to discuss legislation
which I consider to be urgently needed and vital to the future success
of our country's foreign intelligence collection efforts.
I start this morning from the premise that our efforts to collect in-
formation about the plans and intentions of our potential adversaries
cannot be effective in a climate that condones revelation of a central
means by which those efforts are conducted. The impunity with which
misguided individuals can disclose the identities of our undercover
officers and employees and other foreign agents and sources has had
a harmful effect on our intelligence program.
Equally significant is the increased risk and danger such disclosures
pose to the men and women who are serving the United States in
difficult assignments abroad. It is outrageous that dedicated people
engaged or assisting in U.S. foreign intelligence activities can be
endangered by a few individuals whose avowed purpose is to destroy
the effectiveness of activities and programs duly authorized by the
Congress.
Mr. Chairman, recent world events have dramatically demonstrated
the importance of maintaining a strong and effective intelligence ap-
paratus. The intelligence community must have both the material and
the human resources needed to enhance its ability to monitor the mili-
tary activities of our adversaries and to provide insights into the
political, economic and social forces which will shape world affairs in
the 1980's.
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It is particularly important that every effort be made to protect
our intelligence officers and sources. It is imperative that the Congress
clearly and firmly declare that the unauthoribed disclosure of the iden-
tities of our intelligence officers and those allied in our efforts will no
longer be tolerated.
The President has expressed his determination to "increase . our
efforts to guard against damage to our crucial intelligence sources and
our methods of collection, without impairing civil and constitutional
rights." We recognize that legislation in this area must be carefully
drawn; it must safeguard the Nation's intelligence capabilities without
impairing the first amendment rights of Americans or interfering with
congressional oversight.
Mr. Chairman, at this point I would like to make clear for the record
the damage that is being caused by the unauthorized disclosure of in-
telligence identities. I would then like to address briefly several falla-
cies and misconceptions that have crept into public discussion and
debate about the problem.
Finally, I will deal with the issue of how a legislative remedy can be
structured so as to discourage these unauthoribed disclosures without
impairing the rights of Americans or interfering with congressional
oversight.
Obviously, security considerations preclude my confirming or deny-
ing specific instances of purported identification of U.S. intelligence
personnel. Suffice it to say that a substantial number of these disclos-
ures have been accurate. The destructive effects of these disclosures
have been varied and wide ranging.
Our relations with foreign sources of intelligence have been im-
paired. Sources have evinced increased concern for their own safety.
Some active sources and individuals contemplating cooperation with
the United States have terminated or reduced their contact with us.
Sources have questioned how the U.S. Government can expect its
friends to provide information in view of continuing disclosures of in-
formation that may jeopardize their careers, liberty, and very lives.
Many foreign intelligence services with which we have important
liaison relationships have undertaken reviews of their relations with
us. Some immediately discernable results of continuing disclosures
include reduction of contact and reduced passage of information. In
taking these actions, some foreign services have explicitly cited dis-
closures of intelligence identities.
We are increasingly being asked to explain how we can guarantee
the safety of individuals who cooperate with us when we cannot pro-
tect our own officers from exposure. You can imagine the chilling
effect it must have on a source to one day discover that the individual
with whom he has been in contact has been openly identified as a CIA
officer.
The professional effectiveness of officers so compromised is substan-
tially and sometimes irreparably damaged. They must reduce or break
contact with sensitive covert sources. Continued contact must be
coupled with increased defensive measures that are inevitably more
costly and time consuming.
Some officers must be removed from their assignments and returned
from overseas at substantial cost. Years of irreplaceable area experi-
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ence and linguistic skills are lost. Reassignment mobility of the com-
promised officer is impaired.
As a result, the pool of experienced CIA officers is being reduced.
Such losses are deeply felt in view of the fact that, in comparison with
the intelligence services of our adversaries, we are not a large organi-
zation. Replacement of officers thus compromised is difficult and, in
some cases, impossible.
Once an officer's identity is disclosed, moreover, counterintelligence
analysis by adversary services allows the officer's previous assignments
to be scrutinized, producing an expanded pattern of compromise
through association.
Such disclosures also sensitize hostile security services and foreign
populations to CIA presence, making our job far more difficult.
Finally, such disclosures can place intelligence personnel and their
families in physical danger from terrorist or violence-prone organiza-
tions.
Mr. Chairman, at the convenience of the committee, I am prepared
to discuss in executive session individual cases which exemplify the
damage done to our intelligence-gathering capabilities. These cases
serve to illustrate the pernicious effects which unauthorized disclosures
of intelligence identities have had in particular instances.
But it is also essential to bear in mind that the collection of intelli-
gence is something of an art. The success of our officers overseas de-
pends to a very large extent on intangible psychological and human
chemistry factors, on feelings of trust and confidence that human
beings engender in each other and on atmosphere and milieu. Unau-
thorized disclosure of identities information destroys that chemistry.
While we can document a number of specific cases, the committee
must understand that there is no way to document the loss of potential
sources who fail to contact us because of lack of confidence in our
ability to protect their identities.
Mr. Chairman, in a time when human sources of intelligence are
of critical importance, there can be no doubt that unauthorized dis-
closures of identities of our officers, agents, and sources constitute a
serious threat to our national security.
The threat may not be as direct and obvious as the disclosure of
military contingency plans or information on weapons systems. It
is indirect and sometimes hard to grasp. But the net key result is
damaged intelligence capability and reduced national security.
Those who seek to destroy the intelligence capabilities of the United
States, and others whose opposition to identities legislation is based
upon genuine concern about first amendment considerations, have
propagated a number of fallacies and misconceptions. Understand-
ably, some of these have found their wav into discussions of identi-
ties legislation before the Congress and in the press.
One of these fallacies is that accurate identification of CIA per- r
sonnel under cover can be made merely by consulting publicly avail-
able documents like the State Department's Biographic Register,
and that identities legislation would impinge on discussion of in-
formation that is in the public domain.
This is absolutely untrue. There is no official unclassified listing
anywhere that identifies undercover CIA officers. The intelligence
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relationships which we are seeking to protect are classified and a
great deal of money and effort is expended to maintain their secrecy.
The names of individuals who are intelligence officers do appear
in certain unclassified documents but they are not identified as in-
telligence officers. This is consistent with our need to establish and
maintain cover to conceal the officer's intelligence affiliation.
The State Department Biographic Register, an unclassified docu-
ment until 1975, and similar documents cannot be used without addi-
tional specialized knowledge and substantial effort to make accurate
identifications of intelligence personnel.
It is only because of the disclosure of sensitive information based
on privileged access and made by faithless Government employees
with the purpose of damaging U.S. intelligence efforts that the pub-
lic has become aware of indicators in these documents that can some-
times be used to distinguish CIA officers.
It is noteworthy, however, that these indicators do not invariably
lead to correct identification. The substantial number of accurate
identifications that are being made by the Covert Action Informa-
tion Bulletin long after the Biographic Register ceased to be pub-
licly available indicates that these disclosures are based on extensive
additional investigation, presumably using many of the same tech-
niques as any intelligence service uses in its counterintelligence efforts.
Another fallacy widely circulated by opponents of identities leg-
islation is that prohibition of the unauthorized disclosure of intel-
ligence identities would stifle discussion of important intelligence and
foreign policy issues.
This simply is not so. Identities legislation is not designed to fore-
stall criticism of intelligence activities, prevent the exposure of wrong-
doing, or "chill" public debate on intelligence and foreign policy mat-
ters. Rather such legislation would protect a narrow, essential element
of our Nation's foreign intelligence programs for which the Congress
appropriates taxpayer dollars year after year.
In this regard, it is important to recall that virtually all of the legiti-
3nate official and unofficial examinations of intelligence activities which
have taken place over the past several years have been accomplished
without the revelation of intelligence identities of the kind we are
seeking to protect. Extensive public and congressional scrutiny and
criticism of intelligence activities has taken place without recourse to
wholesale disclosure of the names of intelligence personnel.
Mr. Chairman, identities legislation is designed to discourage activ-
ity that threatens the very lifeblood of our Nation's intelligence ap-
paratus. I urge the committee to examine closely the claims of those
? who contend that there are legitimate reasons for the unauthorized
disclosure of intelligence identities and that such disclosures are in
the public interest.
These claims are without merit and must be rejected when weighed
against real and certain damage to the national interest.
Another serious misconception which has arisen in connection with
the debate over identities legislation is the contention that such a stat-
ute would prevent legitimate "whistle-blowing" by individuals whose
intent is to expose alleged illegality or impropriety. A properly drafted
statute will have no such effect.
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Provision can be made to insure that the transmittal of informa-
tion to the House and Senate Intelligence Committees is not covered
by the statute's prohibitions and we support language such as that
contained in subsection 502(d) of S. 2216. Identities legislation, there-
fore, need not impact at all on those whose legitimate purpose is to re-
port alleged wrongdoing.
Still another misconception is the contention that passage of identi-
ties legislation would spell the end of efforts to enact comprehensive
intelligence charter legislation. It has been suggested that the intel-
ligence
community would lose interest in a comprehensive charter if
an identities bill were to be enacted separately.
Mr. Chairman, the commitment of the intelligence community to
comprehensive charter legislation is well known and has been stated
often. I state it again before you today. We sincerely regret that it
was not possible to proceed with a full charter bill this year.
The intelligence community's interest in charter legislation will not
evaporate upon passage of a separate identities bill. Identities legis-
lation is urgently needed and should proceed on its own merit. It must
not be held hostage to comprehensive charter legislation.
Mr. Chairman, I would like now to discuss how identities legislation
can be structured so as effectively to proscribe the most damaging un-
authorized disclosures without impairing the rights of Americans or
interfering with congressional oversight.
Congress should enact legislation which will fully remedy the prob-
lems we face. Passage of a statute that is too limited in its coverage,
that could be easily circumvented. or which would go unenforced be-
cause of unmeetable burdens of proof would be counterproductive.
Such a statute would give the impression of solving the problem with-
out actually doing so.
Legislation in this area should, first of all, hold current and former
Government employees and others who have had authorized access to
classified identities information to a higher standard than persons
who have not had such access.
Such individuals, because of their employment relationships or other
positions of trust, can legitimately be held accountable for the deliber-
ate disclosure of any identity they know or have reason to know, is
protected by the United States.
With regard to such individuals the legislation should require proof
that a, disclosure is made with culpable knowledge or with knowledge
of sufficient facts to make the average person aware of the nature and
gravity of his actions.
This is an important element because it must describe a state of mind
which will support the attachment of criminal sanctions and at the
same time be capable of proof in the kinds of disclosure cases which
have been damaging. If a person with authorized access discloses in-
formation knowing that it identifies an intelligence officer under cover,
that person should be considered to have acted with culpable
knowledge.
The knowledge formulation must not be so difficult of proof as to
render the statute useless. We would oppose, therefore, any require-
ment such as the one contained in Representative Aspin's bill, H.R.
6820, for the Government to prove that the specific information dis-
closed was acquired during the course of the individual's official duties.
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Second, we believe it is essential that individuals who conspire with
or act as accomplices of persons having authorized access to classified
identities information not escape responsibility for their actions. Thus,
the legislation should not negate the normal applicability of the general
Federal accomplice and conpiracy statutes.
? Mr. Chairman, a statute in this area, if it is to be effective, must also
cover those who have not had an employment or other relationship of
trust with the United States involving authorized access to classified
identities information. The identities provisions in S. 2284 as intro-
duced, in Senator Bentsen's S. 191, and in Representative Aspin's H.R.
6820, are seriously deficient because they omit this broader coverage.
Additional safeguards are in order with respect to the broader cov-
erage which is sought by the administration. The approach contained
in section 501(b) of the proposed identities legislation in S. 2216 would
necessitate, in addition to the requirements applicable to individuals
who have had authorized access, that individuals who have not had
such access act "with the intent to impair or impede the foreign intelli-
gence activities of the United States."
This formulation would make possible prosecution of those who
seek to destroy the intelligence capabilities of the United States while
leaving untouched anyone who makes a disclosure without the requisite
intent.
The administration proposal drafted by the Department of Justice,
on the other hand, would cover persons who have not had authorized
access to classified identities information in a different way. Such per-
sons would be covered if they disclose a protected identity "with the
knowledge that such disclosure is based on classified information."
This formulation could cover the most egregious current cases, such
as the disclosure by Covert Action Information Bulletin, but only if
the use of criminal investigative techniques provided sufficient proof
that the disclosure were based on classified information.
Mr. Chairman, the suggestion has been made that criminal penalties
for the unauthorized disclosure of intelligence identities should apply
only when there is actual injury to the individual whose identity is re-
vealed or where the revelation could reasonably be expected to jeopard-
ize the individual's safety.
We strongly oppose such a limitation. While the personal safety of
our officers and sources is a very important consideration in our pur-
suit of this legislation, we are also concerned about the maintenance
of an effective intelligence apparatus.
Unauthorized disclosures of intelligence identities damage intelli-
gence capabilities, and criminal penalties should apply regardless of
whether the particular individual whose identity is revealed is physi-
cally harmed or immediately threatened by the disclosure.
Mr. Chairman, there is a pressing need for effective legislation to
discourage unauthorized disclosure of intelligence identities. The cred-
ibility of our country and its relationships with foreign intelligence
services and agent sources, the personal safety and well-being of pa-
triotic Americans serving their country and the professional effective-
ness and morale of our country's intelligence officers are all at stake.
As matters now stand the impunity with which protected intelli-
gence identities may be exposed implies a governmental position of
neutrality. It suggests that U.S. intelligence officers are "fair game"
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for those members of their own society who take issue with the exist-
ence of CIA or find other perverse motives for making these unauthor-
ized disclosures.
Specific statutory prohibition of such activity is critical to the main-
tenance of an effective foreign intelligence service. It is imperative
that a message be sent that the unauthorized disclosure of intelligence
identities is intolerable.
I sincerely appreciate your genuine concern about our intelligence
capabilities and wholeheartedly support your efforts to deal with this
serious problem. I encourage you to proceed to report legislation that
will provide an effective remedy.
Thank you very much, Mr. Chairman.
Chairman BAYH. Thank you very much, Ambassador Carlucci. We
appreciate your statement. I think you laid it pretty well on the line.
I would like to ask unanimous consent to put in a statement just prior
to Ambassador Carlucci's from Senator Huddleston.l
Mr. Carlucci, you mentioned that you regret that we were unable
to go ahead with comprehensive charters and I assume we are going
to continue to work in that direction.
I want to compliment you and Director Turner and others in the
intelligence community for the efforts that were made to try to put
together the first step in this package, S. 2284. We had your assistance
and the assistance of several members of your staff at the CIA in the
negotiations which took place.
This was a give and take matter as you know over a good long
period of time. I think it is fair to say nobody is entirely happy,
because it reconciles irreconcilable interests and responsibilities. I
guess the bottom line for some of us who feel that we have a respon-
sibility to see that you have the tools with which to work .to protect
all of us is: Can the CIA function under the provisions of S. 2284?
Mr. CARLUCCI. Mr. Chairman, as the committee is aware, we think
we can function under the statutory provisions but we do have some
problems with certain aspects of the dialog that took place. We are
hopeful that we can work these problems out in the course of this
dialog with the committee to which you have referred.
Chairman BAYH. I hope that reasonable people can recognize that
if we all act reasonably on the problems that occur that both your
function as the principal Intelligence Agency and others as the legis-
lative body of this country can be melded together and the country
will be better served because of our joint efforts.
Mr. CARLUCCI. I certainly support that, Mr. Chairman. I can speak
from the standpoint of the CIA that the relationship that we have
had with the committee and indeed the guidance and criticism and
support that we have received from the committee in my judgment
have all helped to make us a more effective organization.
So, I am certainly hopeful that the problems which have arisen in
connection with S. 2284 can be worked out as rapidly as possible.
Chairman BAYH. I must say that I think that if we are trying to
come up with legislation that meets the absolute requirements of either
side in this discussion we are going to end up with a big round zero.
3 Senator Huddleston's remarks appear on p. 2.
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Mr. CARLUCCI. I think I would agree with that, Mr. Chairman. We
are fully prepared to continue the process of dialog. I think both
sides have made accommodations. What we need is a better under-
standing of what the statutory language actually intends and I think
we can arrive at such an understanding.
Chairman BAYH. I must say that I thought the Senate had a pretty
good understanding of that with the measure that passed 89 to 1. I
would hope that we could put that to bed and get on to running the
Intelligence Agency and running the Congress in other areas.
This whole question of leaks has been a matter that has really wor-
ried the committee. I appreciate your addressing yourself specifically
to one aspect of leaks, the kind that we are gathering here to try to
insure against or rate as the critical kind of act that it is by assessing
appropriate penalties to those involved.
Could you update the committee? We have tried to deal with other
kinds of leaks. You have expressed concern, Admiral Turner has
expressed concern, and has written a letter to the Justice Department.
I think you are familiar with our letter to the Director of the Fed-
eral Bureau of Investigation urging him to conduct a full inquiry
and find out as best we can what we can do to stop some of this
hemorrhaging involving a wide variety of activities, invasion into
Afghanistan by the Soviet Union, the rescue mission undertaken by
brave Americans to free our hostages, the dispute which currently
exists between your Agency and the Pentagon over the strategic bal-
ance of power where you read in the local newspaper the page num-
bers of the defense intelligence estimates, where are we on that?
I am anxious to get to the bottom of that. The Philip Agee type
activity is highly publicized and I think we are determined to do
everything we can to stop that. What can we do to get at the people
who might do just as much damage to the whole security of the coun-
try but we cannot seem to get at them?
Mr. CARLUCCI. Mr. Chairman, I fully share your concern on this
subject. We have sent a number of letters, separate letters, to the At-
torney General requesting investigations of specific leaks, I think
the Justice Department would be better equipped to respond to the
actual status of those investigations than I would be.
Let me say that leaks cannot be stopped just by investigation. In-
deed, investigations of leaks are often fruitless. Leaks result from
an atmosphere which in my judgment has existed in this country for
the past 4 or 5 years. It is an atmosphere which is conducive to care-
lessness with national security information. an atmosphere which has
tended to glorify those who leak information, an atmosphere that
says in effect if you do not agree with the policy or what is printed
it is your obligation to go public, an atmosphere in which the term
"national security" has become a discredited word.
I think we have to put some content back into the term "national
security." Certainly we want to encourage dissent, whistle blowers,
oversight mechanisms, inspections. These have a very important role
but the kinds of dissent that do irreparable damage to our intelligence
apparatus need to be dealt with forcefully. There are appropriate
channels for expressing dissent.
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In terms of security requirements we have taken a lot of steps in
the CIA to tighten up on security practices. We have undertaken a
rather sweeping review of the way we handle documents and infor-
mation. We have stepped up our training courses. We have stepped
up our security reinvestigations and we have tightened physical se-
curity in coming to and leaving the building.
All of these are parts of a program, an overall program, which we
hope will convince everybody concerned, whether in the executive
branch or other branches of Government, that the leaking of informa-
tion can cause very serious damage to our country and can be harmful
to the lives of individuals.
I would suggest that legislation to deal with the practice of reveal-
ing the identities of CIA officers and agents overseas would be a very
important step in this direction.
Chairman BAYH. Let me ask you this, if I might, because if we are
passing legislation to deal with unauthorized leaking of information,
in this case names of agents, do you not feel that we should provide
legislative authority to deal with the atmosphere that you described
in which a good deal of the leaking is done by people who do not con-
sider themselves Philip Agees?
I get tired of reading in the newspaper information that has to come
from people in high places that would ostracize me, you or anybody
else. They were doing as much damage to the country as Philip Agee.
We went through this whole SALT verification and it was like a leak-
ing sieve. On one side you had somebody leaking a pro-SALT position,
the next day somebody leaking an anti-SALT position.
The Russians were sitting there lapping it all up. Should we not be
just as severe, perhaps more so, in directing our criticism at somebody
who knows better, who is a Presidential adviser or three-star general or
person in command in the Pentagon on either side of any of these
issues that if you leak that kind of information through the back door
to try to guide public opinion and direction of policy, that is of the
same character as Philip Agee, who is leaking the same kind of infor-
mation ? I want to get it stopped across the board.
Mr. CARLUCCI. I share your desire, Mr. Chairman. It is a question of
what means you can use. I do not know what kind of legislative remedy
you can fashion but I would be willing to work with the committee on
any ideas you might have on this subject.
Let me make a distinction, though. In the case of disclosure of intel-
ligence identities, this is a little bit more than just leaking. As I
indicated in my prepared statement, we are really grappling with a
sophisticated counterintelligence operation where people are using
sophisticated techniques to identify our people overseas. It is not just
the casual leak. It is not a leak for foreign policy purposes.
This is the revelation of classified information by people who are
avowedly out to destroy our Nation's intelligence capability. I suggest
that is very different from the misguided and possibly harmful leak by
some policymaker in the executive branch of Government.
Chairman BAYH. I think the motivation is different, though. It is
sort of like the fellow who shot his wife with an empty gun; she
is still dead. I just think that there are ways information should be
made available and people who try to govern policy by leaks I think
are doing great jeopardy to the country.
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We are talking about different kinds of problems but I just raise
this point because I think the result to the country is very negative
in both instances.
Mr. CARLUCCI. I agree with that.
Chairman BAYH. I yield to my colleague from Utah.
Senator GARN. I thank the chairman.
Ambassador Carlucci, the Snepp decision certainly held it was
constitutional for the United States to take preventive action and
prevent publication of classified information important to our na-
tional security. So I do not think there seems to be any constitutional
objection to reasonable restrictions concerning agents and former
agents and their disclosure.
There is some testimony that there is already such legislation,
which I do not happen to agree with, but do you believe that the Jus-
tice Department is effeccively enforcing existing law concerning
disclosure?
Mr. CARLUCCI. I would have to defer to the Justice Department on
whether they believe existing law is effective. My personal belief is
that it is not. We have not been able to prosecute anybody under the
Espionage Act. The threshold of proof I think there is very high. I
would like to defer to my General Counsel.
Senator GARN. I agree with you; I do not think there is. I do think
there is a necessity for more. Mr. Keuch testifies for the Justice De-
partment that wrongful disclosure of a covert CIA agent is a viola-
tion of current law, specifically the espionage statute.
I agree that there should be additional law. I am not convinced we
are doing as much as we can under current law to discourage this
kind of activity while we look for a new legislative solution.
There is a vote going on, so I will hurry along. There are just a
couple of quick questions.
I believe the language of S. 2216-the original Moynihan
bill-would effectively prohibit disclosure of classified information
by former agents?
Mr. CARLUCCI. Yes, I do.
Senator GARN. This afternoon, John Stockwell, whom we all know
very well as a former agent of the CIA, will testify. His book, "In
Search of Enemies," was published without security review. Do you
believe the publication of this book hurt the national security of the
United States?
Mr. CARLUCCI. Do I believe it did?
Senator GARN. Yes.
Mr. CARLUCCI. Yes, I do.
Senator GARN. He claims that he did not reveal the names of agents.
In your opinion, did he reveal or give out enough information that
tended to reveal directly the names of agents or sources?
i Mr. CARLUCCI. It has been a long time since I have read his book
but my impression is that-Mr. Chairman, this is a case that could
come under litigation. I think I had better not comment on it in a
public forum. Let me refer to my General Counsel. My General
Counsel agrees I should not comment on it.
Senator GARN. I respect your judgment there because I would like
to see the man prosecuted and I will tell him so personally this after-
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noon. I do appreciate your testimony and your continuing interest in
things that the chairman has talked about.
Some day, maybe we will achieve both some legislative remedies in
this area and also the areas that the chairman is talking about.
Thank you. I think I had better run and vote.
Senator CIIAFEE. I understan- there are going to be several votes in
a row. So I think perhaps I ha: better ask my questions now of Mr.
Carlucci so that he might be able to go.
Mr. Ambassador, in your statement and in answer to a question from 0
Senator Garn, you said that you thought the provisions of S. 2216
would take care of the problem we are trying to wrestle with. Yet as
you know, those provisions have raised intense opposition.
I thought your statement was a good one on trying to meet that
prospective opposition which we will hear tomorrow. Is there anything
else we might do to alleviate that fear on the part of the media?
Mr. CARLUCCI. Let me clairfy my statement, Senatox Chafee. I said
that S. 2216, in my judgment, would deal effectively with the problem
and I so testified on the House side on a companion bill.
Since that time, we have worked with the Justice Department and
the Department and the administration position has been reformulated.
The Agency is now supporting the Justice Department bill which is
somewhat different in its approach. In S. 2216, those who were not for-
mer employees would have to pass a threshold of proof and that would
involve intent to impair and impede foreign intelligence activities and
the knowledge that the United States is concealing the identities of the
persons involved.
The Justice Department formulation would provide a separate nexus
to classified information; that is to say, they would find anyone culpa-
ble who discloses information with the knowledge that such disclosure
is based on classified information.
So, the threshold of proof is somewhat different here. We think that
both bills will deal with the problem but the Justice Department for-
mulation, as I indicated in my prepared statement, would require the
use of criminal techniques to determine that the information released
was based on classified information.
Senator CHAFEE. I thought you said that made a pretty difficult
burden of proof, as far as you are concerned?
Mr. CARLUCCI. I think it would be a more difficult burden of proof.
I do not find it an impossible burden of proof. Let me ask my General
Counsel.
Mr. SILVER. I think it would depend entirely on the circumstances
of the case. We are hopeful that in the egregious cases that exist today,
we would be able to support prosecution under the Justice Depart-
ment proposal.
Senator CHAFEE. It seems to me that we could have a situation where
you could have a skilled trained person who would, like Agee, take
some assistant and teach him or her the techniques without that person
ever having had access to classified information. That person could
then publish in certain journals and publications that one could read.
They would publish with the intent to disclose that information and
to do damage to the CIA.
Now would that person be prosecuted under this Justice Department
legislation?
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Mr. CARLUCCI. Senator Chafee, I think we perhaps had better defer
to the Justice Department to answer that question since it is their
legislation and they would be responsible for prosecution. My own
belief is that, yes, we probably could but I think Justice can better
describe it.
" Senator CHAFEE. My real question to you is, are you saying you are
supporting the Justice Department's position because that is the party
line or because you believe it?
Mr. CARLUCCI. We believe that the Justice Department bill, with
the use of good investigative techniques, would be an effective bill. We
think that bill does accommodate some of the concerns that were raised
subsequent to my testimony last time, concerns to which you have
referred, and in the interest of getting legislation to deal with this
critical problem, we are supporting the Justice Department measure.
Senator CHAFEE. You are happy with it, content with it?
Mr. CARLUCCI. We are content with it.
Senator CHAFEE. There is the second bell. We will have to recess now
subject to the call of the chair for probably 20 or 25 minutes or a half
hour. Ambassador, there is no point in your staying around. You can
go. If we have any questions we will submit them to you for the
record.
Mr. CARLUCCI. I thank you very much, Senator.
[Whereupon, a brief recess was taken.]
Senator CHAFEE [presiding]. Gentlemen, we will start. We have
Mr. Keuch from the Justice Department here. Of course, the Justice
Department has a profound interest in this because they are the
people in the end who will have to do the prosecuting in the event
we come up with a law.
Mr. Keuch is Associate Deputy Attorney General. We welcome you
here.
TESTIMONY OF ROBERT L. KEUCH, ASSOCIATE DEPUTY
ATTORNEY GENERAL
Mr. KEUCH. Mr. Chairman and members of the committee, I am
here today to discuss a serious problem in American intelligence opera-
tions : how to safeguard the confidential identities of the agents and
sources who serve our country overseas.
Current proposals for a new criminal statute to punish unauthorized
disclosure of agent and source identities are important and merit
thorough consideration. I would like to begin today by discussing why
we should think about a new statute at all, then describe the Depart-
ment's proposed identities protection statute, and finally comment at
some lengh on current Senate and House proposals on identities, espe-
cially S. 2216, and indicate in what respects we believe the Depart-
ment's alternative proposal may be advantageous.
Identities protection is an area where we must steer carefully
between two monumental interests : On the one hand, the protection of
freedom of speech, the constitutional right of citizens to discuss and
debate issues concerning politics and government, including issues of
American foreign policy; and on the other hand, the need to protect
the effectiveness of American intelligence gathering abroad.
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The reasons for protecting the identities of covert foreign intelli-
gence agents and sources are utterly clear in a world where a strong
intelligence capability is essential to national security. Unauthorized
disclosure of our undercover personnel and sources can measurably
diminish the quality of our intelligence gathering, inhibit our ability
to conduct covert operational activities and expose individual agents
and sources to physical danger.
No source will cooperate with the United States if he believes he is in
serious danger of exposure. ' Even for career intelligence personnel
operating under relatively light cover, naming names puts them out of
business because of loss of cooperation from foreign governments,
hazards from local groups, and loss of camouflage effective against
less sophisticated foreign intelligence services.
Wrongful disclosure of classified information concerning agent
identities is considered by the Department of Justice to constitute a
violation of the existing espionage statutes. These are in title 18 of the
United States Code, sections 793 (d) and (e).
Those two sections would penalize any knowing identification of a
covert agent or source of the Central Intelligence Agency or a foreign
intelligence component of the Department of Defense if the disclosure
is knowingly based on classified information and the individual had
reason to believe the disclosed information could be used to the injury
of the United States or to the advantage of any foreign nation.
Why then are the existing espionage statutes not enough ? There are
three problems which new legislation can usefully address in our view.
Publication as a prohibited means of disclosure : The first is to make
explicit that publication of classified information in a newspaper,
book, or magazine is prohibited just as much as any clandestine deliv-
ery of such information to an unauthorized person.
The Department has consistently taken the position that acts of pub-
lication in a newspaper, book, or magazine are covered by sections 793
(d) and (e) when based on classified information relating to the
national defense, just as any other means of communication or trans-
mission of classified information to unauthorized persons is so cov-
ered. That was our position in the Pentagon Papers case 9 years ago.
But the language of 793 (d) and (e) is not explicit; it speaks of
wrongful attempts to "communicate, deliver, or transmit" information
and at least one lower court judge in the Pentagon Papers litigation,
the late Judge Gurfein, then of the district court, rules against us in
holding this did not include newspaper publication. 328 F. Supp. 324,
329 (S.D.N.Y. 1971).
The Supreme Court did not resolve the issue when it heard the
Pentagon Papers appeal. (See New York Times v. United States, 403
U.S. 713, 714 (1971) ; id. at 737-739 and n. 9 (White, J., concurring) ;
id. at 720-722 (Douglas, J., concurring).)
Under these circumstances it seems to the Department prudent to
settle the question for agent covert identities by explicit statutory lan-
guage prohibiting, in so many words, the publication of identity infor-
mation knowingly based on classified sources.
Avoiding extra elements of proof : Any prosecution under the exist-
ing espionage statutes requires proof that the disclosed information
"relates to the national defense" and is information which the defend-
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ant had "reason to believe could be used to the injury of the United
States or to the advantage of any foreign nation."
While those elements are not difficult to establish as a theoretical
matter in regard to any covert agent or source identity, the necessary
proof at trial might require revelation of additional sensitive informa-
tion concerning the agent or source's activities.
A statute that avoids those elements of proof would be fair to the
individual yet would avoid the augmented cost to national security
from additional revelations which must be weighed in deciding
" whether to bring any particular prosecution.
Use of inside methodology by former Government employees : The
third important reason to consider new legislation is that we have all
been witness to a new sort of problem in protecting covert identities :
the possible use by former intelligence employees of their inside ex-
perience and expertise as a way of piecing together available informa-
tion from the public record to establish and disclose numerous agent
identities.
Potential problems in treating such acts of disclosure under existing
espionage statutes include not only whether the act of publishing is
covered and the added elements of proof the espionage statutes require,
but also a question remaining from a case decided 35 years ago of
whether the espionage statutes penalize compilation of materials from
the public record.
The skeptical source on this last question is a Second Circuit Court
of Appeals decision, United States v. Heine, 151 F. 2d 813 (1945), writ-
ten by Judge Learned Hand, which held that assembling materials
from public sources was not covered by the espionage statutes, even if
performed with the worst intent in the world.
While one may question the persuasiveness of Heine's reasoning and
while one certainly may question any extension of Heine to former
intelligence employees who have gained inside expertise through their
employment, it is nonetheless prudent to have an explicit statutory
prohibition of public record compilations by former Government
intelligence personnel that have the effect of disclosing identities.
The Department's proposed bill : After extensive review within the
Department and consultation with representatives of the intelligence
community, the Department of Justice concluded last fall that it
should propose and support new legislation to punish unauthorized
identification of covert intelligence agents and sources who serve over-
seas.
The Department has formulated a draft bill which we title the "For-
eign Intelligence Identities Protection Act." A copy of the bill is
? attached to my prepared statement. In the judgment of Attorney
General Civiletti, who reviewed the House Intelligence Committee
bill, H.R. 5615, and the Department's draft proposal last November,
the Department bill
* * * stands the best chance of providing an effective tool for the presecution
of the most egregious disclosures, while avoiding potential first amendment
difficulties.
As an aid to effective law enforcement, the proposal would enable
the Government to avoid the several potential hurdles which, exist in
prosecutions brought under the present espionage statutes.
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The first section of the Department's proposed bill would create a
new criminal -statute, 18 U.S.C. 801, to prohibit any identity dis-
closures knowingly based on classified information. Disclosure of in-
formation correctly identifying a covert agent or source by any person
acting with knowledge that the disclosure is based on classified in-
formation would be punishable by up to 10 years and a $50,000 fine.
Persons gaining unauthorized access to classified information are
covered as much as those with authorized access. Even if matte abroad,
disclosure by any American citizen or permanent resident alien can
be prosecuted. An "attempt" provision would permit prosecution of
any person who has taken a substantial step toward disclosure of
identifying information with the requisite intent, even though de-
tected before completing the offense.
The statute includes within the scope of its protection any covert
agent, employee, or source who is currently serving outside the United
States or who has served abroad within the last 5 years.
This part of the Justice Department bill would extend to classified
identity information the same protection currently provided under
Federal law for classified communications information and crypto-
graphic information in 18 U.S.C. 798.
It removes any question about the covered means of disclosures,
making crystal clear in its definition of "disclosure" that publication
in a newspaper or book is as much prohibited as any other means of
communication or transmission.
And paralleling section 798's protection of communications or
cryptographic information, once it is shown that a defendant dis-
closed covert identity information which he knew to be based on classi-
fied sources, there is no further required proof involving potential
revelation of sensitive information, that he had "reason to know" the
disclosure could injure the T7nited States.
The Department's bill contains a second provision U.S.C. 802, which
would impose a powerful constraint on the class of current and former
Government employees who have ever had access to information con-
cerning covert identities in the course of their employment.
These persons would be prohibited from making any disclosures of
agent or source identity even if the particular identification is based
purely on speculation or is deducted from information compiled from
public sources. Such a restriction on discussion of public available
information is justified for this limited group of Government em-
ployees because their prior inside access to identify information can
give them a special expertise in discerning how covers are arranged
and a special authority and credibility when discussing covert in-
tt Iligence activities.
The persons coming within the reach of this provision have occupied
ensitive positions of trust within the Government and have been in
a position to learn how the United States establishes cover for its
agents abroad and conceals its relationships with foreign intelligence
sources.
To permit such persons to piece together covert identities, even
though the conclusions as to particular agents and sources are based on
publicly available information, would pose a concerted threat to the
maintenance of secret intelligence relationships.
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In addition, conclusions drawn by such persons concerning intelli-
gence identities will be imbued with a special credibility and au-
thority stemming from the prior Government service that makes the
identifications especially injurious to the security of personnel.
As a result, the Department believes that additional restrictions are
justified and can be sustained for this class of persons even for identifi-
cations based on unclassified information. Under the Department's
bill, a 5-year and $25,000 sentence could be imposed on any such per-
son who knowingly discloses information that correctly identifies a
covert agent or source or attempts to do so.
S. 2216/H.R. 5615. I would like to spend some time commenting on
the identities protection bill introduced by Senator Moynihan as part
of S. 2216, the Intelligence Reform Act of 1980. The same bill was in-
troduced by Congressman Boland in the House as H.R. 5615.
I appeared before the House Intelligence Committee at the end of
January to discuss the provisions of this bill and my remarks today
will bear a suspicious resemblance to my remarks on that occasion.
We believe the Department's bill would serve the same end as S.
2216 and yet would avoid some areas of constitutional controversy and
unnecessary difficulties for effective prosecution that S. 2216 might
present.
S. 2216, unlike the Department's proposed legislation, does not
seek any enhancement protection against the disclosure of classified
information as such. Instead, both identity provisions contained in
title V of S. 2216 would give uniform treatment to the disclosure of
classified and unclassified information concerning agent identity.
The first section, 501 (a) is quite similar to the second provision of
the Department's bill, 802. Both specially limit disclosures by former
Government employees who have had authorized access to inside in-
formation about identities.
These are the people who from their former position of trust
reasonably owe a special duty of confidentiality even in their later
handling of publicly available information. S. 2216, like the Depart-
ment bill,,w_ould criminalize any disclosure of identifying information
even based on publicly available sources by such former employees.
Our suggestions hexes are only limited ones. Section 501 (a) differs
in two ways from the Department's bill and in each we believe the
Department's formulation is probably preferable on policy grounds.
First the Department bill covers any former employee who had in-
side access to identities information, whether or not the inside infor-
mation was technically classified. In contrast, S. 2216 would cover only
those employees who had authorized access to classified identities in-
formation.
Second, the Department bill would cover anyone who conspires
with or aids and abets a former Government employee in violating his
trust, whereas S. 2216 would exclude cooperating persons unless intent
to impair or impede foreign intelligence activities could be shown.
Under the circumstances we believe that the Department's broader
coverage aimed at preventing breach of trust is more appropriate.
The second provision of S. 2216, section 501(b) , is the provision that
gives us pause. It would create a misdemeanor offense that covers any
disclosure of identifying information by any person, including ordi-
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nary citizens who never have served in the Government and never have
had access to classified or inside inforan- tion.
The prohibition of section 501 (b) applies to disclosures even of
publicly available information by any voter, journalist, historian or
dinner table debater, if the disclosure is made "with the intent to im-
pair or impede the foreign intelligence activities of the United States."
To fall within the prohibition a person need not realize that his
disclosure of indirect information has the cumulative impact of iden-
tifying an agent or source but only have "reason to know." To fall
within the prohibition a person need not have any special expertise,
authority or credibility stemming from prior Government service.
Our reservations regarding section 501 (b) are based both on policy
and on constitutional uncertainty. In proposing a section of such
breadth, S. 2216 marches overboldly, we think, into a difficult area of
political, as opposed to scientific, "born classified" information, in a
context that will often border on areas of important public policy
debate.
Conversational speculation about whether foreign official X may
have been a CIA source and whether we have covert operatives in
country Y, ordinary discussions by citizens about foreign affairs and
the nature and extent of our intelligence activites abroad, could come
chillingly close to criminality under the standard of section 501 (b).
A speaker's statement about covert activities could be punished even
though they are not based on direct or indirect access to classified in-
formation, do not use inside methodology acquired by the speaker in
Government service, and are unimbued with any special authority
from former Government service.
Section 501 (b)'s specific intent requirement that an individual must
have acted with "intent to impair or impede the foreign intelligence
activities of the United States" and that such intent cannot be inferred
from the act of disclosure alone is not a fully adequate way of narrow-
ing the provision, either in serving first amendment values or in fa-
cilitating effective prosecutions.
The specific intent requirement may itself have the effect of addi-
tionally chilling legitimate critique and debate on CIA policy be-
cause general criticism of the intelligence community could seem to
corroborate an intent to- impair or impede.
A mainstream journalist who occasionally writes stories based on
public information concerning which foreign leaders are thought to
have intelligence relationships with the United States may fear that
and other stories by him critical of the CIA will be taken as evidence
of an intent to impede foreign intelligence activities.
Speculation and debate concerning intelligence activity and actors
would be seemingly more hazardous if one had ever taken a general
position critical of the conduct of our covert foreign intelligence
policy.
Taking the problem from the other direction, since any past or
present criticism of the CIA might provide the something extra be-
yond the act of disclosure to prove specific intent, citizens may be un-
willing to hazard a speculative discussion of covert intelligence policy
for fear they will unwittingly name an intelligence source correctly.
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The specific intent requirement also can hamper effective enforce-
ment by creating a difficult jury question. Any person willing to gam-
ble on the outcome of a prosecution can claim to a jury that his intent
was to inform the American people of intelligence activities he be-
lieved to be improper or unnecessary rather than to disrupt success-
ful intelligence gathering; the government may often find it difficult
to convince a jury beyond a reasonable doubt that there was intent to
impede in light of such a claim.
A related serious enforcement problem is that the specific intent
requirement could provide an opening to defendants to use the trial as
a forum to demonstrate alleged abuses by the intelligence community
or to press for disclosure of sensitive classified information on the
ground that it was relevant to showing their intent was to reform
rather than disrupt. The Justice Department is concerned that the
specific intent element will facilitate graymail efforts to dissuade
the Government from prosecuting offenders.
In my appearance last January I was asked by the House Intelli-
gence Committee whether the Department believes section 501(b) of
H.R. 5615 and S. 2216 would be held constitutional. Our sincere answer
has to be that we do not know.
Under the first amendment the viability of a criminal statute does
not depend entirely upon how it is applied in a particular prosecution.
Even if the conduct that the Government seeks to punish is not pro-
tected by the first amendment, the court may ask whether the statute is
drafted so broadly that it could be applied in other cases to reach pro-
tected speech and by that overbreadth perhaps chill protected speech.
If the court so finds, it may hold the statute void. Though the doc-
trine of overbreadth is apparently now undergoing some change and
may not carry the force it once had, as was witnessed in the Supreme
Court's decision in Broadrick v. Oklahoma, 413 U.S. 601 (1973), it still
is a doctrine to be reckoned with.
In our view section 501(b) has the potential for constitutional and
unconstitutional application. Given the current uncertainty regarding
the overbreadth doctrine, I simply do not know whether a court would
find this measure so substantially overbroad as to be unsuitable as a
vehicle for prosecution in any and every case.
There are certainly other approaches, such as the Department's bill,
which far more clearly fall on the safe side of the constitutional mark.
The Department's approach is tailored not on the criterion of intent
but rather on the wrongful use of inside information, whether it be
classified information obtained from an inside source or inside method-
ology and expertise applied by former Government intelligence person-
nel to public record information.
This focus on inside access will we believe seem to courts more care-
fully fitted to the harm the Government is seeking to avoid and far
less burdensome on the right of the general public to discuss policy
questions concerning foreign affairs and intelligence activities.
We believe that the Justice Department bill will provide significant
protection against any escalation of the undesirable actions of anti-
intelligence groups over the last several years. Undisclosed methods
of creating intelligence covers will not be subject to breach in a show-
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and-tell display by irresponsible former Government employees unless
they are willing to suffer a felony consequence.
By restricting the ability of persons who formerly occupied posi-
tions of trust within the intelligence community to abuse that service-
acquired expertise, the Department bill will go far toward inhibiting
the purposeless revelation of covert identities.
Other Senate and House bills : I have talked at length about S. 2216.
Let me say a few words about the remaining bills which Chairman
Bayh has informed me are presently being considered by the select
committee.
Title VII of S. 2284, as introduced by Senator Huddleston, is sub-
stantially similar to section 501 (a) of S. 2216 and to section 802 of
the Department's proposal. My first suggestion above concerning sec-
tion 501 (a) is thus applicable here too.
As another minor matter, S. 2284's coverage of extraterritorial of-
fenses is narrower than our bill or S. 2216, excluding permanent resi-
dent aliens who commit acts of disclosures abroad. S. 2284 also includes
no penalty for those who act in concert with former Government em-
ployees, which we believe is an unwarranted omission.
S. 191, introduced by Senator Bentsen, is more or less akin to the
first part of the Department's bill in that it deals with unauthorized
disclosures of classified information.
From our point of view, however, it has several hampering limita-
tions. It only covers persons who have had "authorized" possession of
classified information, excluding those who gain unauthorized access
to classified documents or information.
Second, it does not especially define the term "disclosure" to include
"publishing" and thus does not resolve once and for all the Pentagon
Papers question. Third, it covers only CIA identities and not the covert
identities used by other defense intelligence agencies.
Amendment 1682 to the Criminal Code Revision, introduced by Sen-
ator Simpson, substantially embodies the two provisions of S. 2216
but with one radical difference : It would also restrict identity informa-
tion concerning undercover agents and informants cooperating in
domestic law enforcement activities with the Federal Bureau of Inves-
tigation, the Drug Enforcement Administration, and any other Fed-
eral law enforcement agency.
In our view, the problems of domestic law enforcement and of
foreign intelligence operations are sufficiently dissimilar and the scope
of the interests at stake so different that it is a mistake to try treating
both at the same time.
Senator CHAFEE. Does Mr. O'Malley agree with that? Mr. O'MALLEY. Yes. I would like to comment on that.
Mr. KEUCH. The final bill under consideration is title II of H.R. 6820,
introduced in the House by Representative Aspin. Like the second
provision of the Department's bill, Congressman Aspin's proposal
covers present and former government employees.
H.R. 6820 would penalize any disclosure of inside identity informa-
tion that was "acquired as a result of having authorized access to classi-
fied information." In addition, it would penalize any "use" of such
inside information to publicly identify covert agents.
This appears to be quite similar. in aim to section 802 of the Depart-
ment's bill seeking to prevent former intelligence employees not only
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from disclosing inside information but also from using inside method-
ology and expertise to assemble public record information.
However, while carefully targeted at the objectionable use of inside
information, the Aspin bill may create some almost impossible prob-
lems of proof for the Government. It is one thing to show that a for-
mer employee had access to covert identity information in the course
of ? his employment; the Department favors restricting all identity
statements even when based on public information by such individ-
uals on the rationale that their employment has probably given them
special expertise in discerning covers.
It is much more difficult to prove in each particular case that be-
yond a reasonable doubt a former intelligence employee's sifting of
publicly available information "used" his inside methodology or ex-
pertise, that is, could not have been performed by an outside person.
Because of the difficulties in proof created by Congressman Aspin's
formulation, the Department prefers the broader coverage provided
for in our draft bill prohibiting all knowing statements about identity
by former insiders.
In light of our comments concerning the various bills under dis-
cussion today, the Department of Justice would recommend that con-
sideration should be given to its current draft proposal. We would be
happy to work with the staff of your committee to draft a bill which
would avoid the problems we believe inherent in S. 2216 and several
of the other proposals.
Senator Chafee, I have a personal letter from the Attorney General
of the United States which I would like to enter as part of the record.
This letter evidences his support for the concept of this legislation.
Dear Mr. Chairman, I would like to take this opportunity to express to you and
to the 'ommittee the great importance that I attach to legislation to protect the
identities of United States intelligence agents, and to share with you some of my
personal views on the subject.
While we must welcome public debate about the role of, the intelligence com-
munity as well as the other components of our government, the wanton and indis-
criminate disclosure of the names and cover identities of covert agents serves no
salutary purpose whatsoever. As public officials, we have a duty, consistent with
our oath to uphold the Constitution, to show our support for the men and women
of the United States intelligence service who perform duties on behalf of their
country, often at great personal risk and sacrifice.
The proposed legislation drafted by the Department of Justice carefully estab-
lishes effective prohibitions on egregious disclosures of identities of intelligence
agents, while recognizing essential rights of free speech guaranteed to us all by
the First Amendment and the important role played by the press in exposing the
truth.
In summary, I would like to join personally in urging the positive consideration
and ultimate enactment of this important legislation. Sincerely, Benjamin R.
Civiletti, Attorney General.
Mr. Chairman, that concludes my prepared statement. If you or the
other members of the committee have any questions, I would be
pleased to attempt to answer them at this time. Thank you very much.
[The prepared statement of Robert L. Keuch follows:]
PREPARED STATEMENT OF ROBERT L. KEUCH, ASSOCIATE DEPUTY ATTORNEY GENERAL
Mr. Chairman and Members of the Committee : I am here today to discuss a
serious problem in American intelligence operations-how to safeguard the con-
fidential identities of the agents and sources who serve our country overseas.
Current proposals for a new criminal statute to punish unauthorized disclosure
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of agent and source identities are important and merit thorough consideration.
I would like to begin today by discussing why we should think about a new
statute, at all, then describe Department's proposed identities protection sta-
tute, and finally, comment at some length on current Senate and House pro-
posals on identities, especially S. 2216, and indicate in what respects we believe
the Department's alternative proposal may be advantageous. Identities protec-
tion is an area where we must steer carefully between two monumental inter-
ests-on the one hand, the protection of freedom of speech, the Constitutional
right of citizens to discuss and debate issues concerning politics and govern-
ment, including issues of American foreign policy ; and on the other hand, the
need to protect the effectiveness of American intelligence gathering abroad.
The reasons for protecting the identities of covert foreign intelligence agents
and sources are utterly clear in a world where a strong intelligence capability
is essential to national security. Unauthorized disclosure of our undercover per-
sonnel and sources can measurably diminish the quality of our intelligence gath-
ering, inhibit our ability to conduct covert operational activities, and expose
individual agents and sources to physical danger. No source will cooperate with
the United States if he believes he is in serious danger of exposure. Even for
career intelligence personnel operating under relatively light cover, naming
names puts them out of business because of loss of cooperation from foreign gov-
ernments, hazards from local groups, and loss of camouflage effective against
less sophisticated foreign intelligence services.
Wrongful disclosure of classified information concerning agent identities is
considered by the Department of Justice to constitute a violation of the exist-
ing espionage statutes. These are in Title 18 of the United States Code, sections
793 (d) and (e). Those two sections would penalize any knowing identification of
a covert agent or source of the Central Intelligence Agency, or a foreign intel-
ligence component of the Department of Defense, if the disclosure is knowingly
based on classified information and the individual had reason to believe the dis-
closed information could be used to the injury of the United States or to the ad-
vantage of any foreign nation.
Why then are the existing espionage statutes not enough? There are three
problems which new legislation can usefully address. in our view.
a. Publication as a prohibited means of disclosure.
The first is to make explicit that publication of classified information in a
newspaper, book, or magazine is prohibited just as much as any clandestine
delivery of such information to an unauthorized person. The Department has
consistently taken the position that acts of publication in a newspaper, book,
or magazine are covered by sections 793 (d) and (e) when based on classified
information relating to the national defense, just as any other means of commu-
nication or transmission or classified information to unauthorized persons is so
covered. That was our position in the Pentagon Papers case nine years ago.
But the language of 793 (d) and (e) is not explicit-it speaks of wrongful
attempts to "communicate, deliver, [or] transmit" information-and at least one
lower court judge in the Pentagon Papers litigation, the late Judge Gurfein, then
of the District Court, ruled against us in holding this did not include newspaper
publication. 328 F. Supp. 324, 329 (S.D.N.Y. 1971). The Supreme Court did not
resolve the issue when it heard the Pentagon Papers appeal. See New York
Times v. United States, 403 U.S. 713, 714 (1971) ; id. at 737-739 & n.9 (White, J., ?
concurring) ; id. at 720-722 (Douglas, J., concurring). Under these circumstances,
it seems to the Department prudent to settle the question for agent covert identi-
ties by explicit statutory language prohibiting, in so many words, the publication
of identity information knowingly based on classified sources.
b. Avoiding extra elements of proof.
Any prosecution under the existing espionage statutes requires proof that
the disclosed information "relat[es] to the national defense" and is information
which the defendant had "reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation." While those elements
are not difficult to establish as a theoretical matter in regard to any covert
agent or source identity, the necessary proof at trial might require revelation
of additional sensitive information concerning the agent or source's activities.
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A statute that avoids those elements of proof would be fair to the individual, yet
would avoid the augmented cost to national security from additional revela-
tiQns which must be weighed in deciding whether to bring any particular prose-
cution.
c. Use of inside methodology by former government employees.
The third important reason to consider new legislation is that we have all been
witness to a new sort of problem in protecting covert identities-the possible use
by former intelligence employees of their inside experience and expertise as a way
of piecing together available information from the public record to establish and
disclose numerous agent identities. Potential problems in treating such acts of
disclosure under existing espionage statutes include not only whether the act of
publishing is covered and the added elements of proof the espionage statutes
require, but also a question remaining from a case decided 35 years ago of
whether the espionage statutes penalize compilation of materials from the public
record. The skeptical source on this last question is a Second Circuit Court of
Appeals decision, United States v. Heine, 151 F.2d 813 (1945), written by Judge
Learned Hand, which held that assembling materials from public sources was
not covered by the espionage statutes, even if performed with the worst intent in
the world. While one may question the persuasiveness of Heine's reasoning, and
while one certainly may question any extension of Heine to former intelligence
employees who have gained inside expertise through their employment, it is none-
theless prudent to have an explicit statutory prohibition of public record compila-
tions by former government intelligent personnel that have the effect of dis-
closing identities.
2. THE DEPARTMENT'S PROPOSED BILL
After extensive review within the Department and consultation with represent-
atives of the intelligence community, the Department of Justice concluded last
fall that it should propose and support new legislation to punish unauthorized
identification of covert intelligence agents and sources who serve overseas. The
Department has formulated a draft bill, which we title the "Foreign Intelligent:
Identities Protection Act." A copy of the bill is attached to my prepared state-
ment. In the judgment of Attorney General Civiletti, who reviewed the House
Intelligence Committee bill, H.R. 5615, and the Department's draft proposal last
November, the Department bill "stands the best chance of providing an effective
tool for the prosecution of the most egregious disclosures, while avoiding poten-
tial First Amendment difficulties." As an aid to effective law enforcement, the
proposal would enable the Government to avoid the several potential hurdles
which exist in prosecutions brought under the present espionage statutes.
The first section of the Department's proposed bill would create a new crimi-
nal statute, 18 U.S.C. 801, to prohibit any identity disclosures knowingly based on
classified information. Disclosure of information correctly identifying a covert
agent or source, by any person acting with knowledge that the disclosure is
based on classified information, would be punishable by up to ten years and a
x:50,000 fine. Persons gaining unauthorized access to classified information are
covered as much as those with authorized access. Even if made abroad, disclosure
by any American citizen or permanent resident alien can be prosecuted. An
"attempt" provision would permit prosecution of any person who has taken a
substantial step toward disclosure of identifying information with the requisite
intent, even though detected before completing the offense. The statute includes
within the scope of its protection any covert agent, employee, or source who is
currenly serving outside the United States or who has served abroad within the
? last five years.
This part of the Justice Department bill would extend to classified identity
information the same protection currently provided under Federal law for clas-
sified communications information and cryptographic information in 18 U.S.C.
798. It removes any question about the covered means of disclosure, making
crystal clear, in its definition of "disclosure", that publication in a newspaper
or book is as much prohibited as any other means of communication or trans-
mission. And paralleling section 798's protection of communications or crypto-
graphic information, once it is shown that a defendant disclosed covert identity
information which he knew to be based on classified sources, there is no further
required proof, involving potential revelation of sensitive information, that he
had "reason to know" the disclosure could injure the United States.
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The Department's bill contains a second provision, 18 U.S.C. 802, which would
impose a powerful constraint on the class of current and former government
employees who have ever had access to information concerning covert identities
in the course of their employment. These persons would he prohibited from mak-
ing any disclosures of agent or source identity even if the particular identification
is based purely on speculation or is deduced from information compiled from
public sources. Such a restriction on discussion of publicly available information
is justified for this limited group of government employees because their prior
inside access to identity information can give them a special expertise in discern-
ing how covers are arranged and a special authority and credibility when dis-
cussing covert intelligence activities. The persons coming within the reach of this
provision have occupied sensitive positions of trust within the government, and
have been in a position to learn how the United States establishes cover for its
agents abroad and conceals its relationships with foreign intelligence sources.
To permit such persons to piece together covert identities, even though the con-
clusions as to particular agents and sources are based on publicly available infor-
mgtion, would pose a concerted threat to the maintenance of secret intelligence
relationships. In addition, conclusions drawn by such persons concerning intel-
ligence identities will be imbued with a special creditibility and authority stem-
mining from the prior government service that makes the identifications especially
injurious.to the security of personnel. As a result, the Department believes that
additional restrictions are justified and can be sustained for this class of persons
even for identifications based on unclassified information. Under the Depart-
ment's bill, a five year and $25,000 sentence could be imposed on any such person
who knowingly discloses information that correctly identifies a covert agent or
source, or attempts to do so.
a. 6. 2218/5.8. 5615
I would like to spend some time commenting on the identities protection bill
introduced.by Senator Moynihan as part of S. 2216. the intelligence Reform Act
of 1980. The same bill was introduced by Congressman Boland in the House as
H.R. 5615. I appeared before the House Intelligence Committee at the end of
January to discuss the provisions of this bill, and my remarks today will bear
a suspicious resemblance to my remarks on that occasion.
WP believe the Department's bill would serve the same end as S. 2216. and yet
would avoid some areas of constitutional controversy and unnecessary difficulties
for effective prosecution that S. 2216 might present.
S. 2216, unlike the Department's proposed legislation, does not seek any en-
hanced protection against the disclosure of classified information as such. instead.
both identity provisions contained in Title V of S. 2216 would give uniform treat-
ment to the disclosure of classified and unclassified information concerning agent
identity.
The first section, 501 (a), is quite slmi]9r to the second provision of the Depart-
ment's bill, section 802. Both specially limit disclosures by former government
employees who have had authorized access to inside information about identities.
These are the people who, from their former position of trust, reasonably owe a
special duty of confidentiality even in their later handling of publicly available
information.
S. 2216, like the Department bill, would criminalize any disclosure of identi-
fying information even based on publicly available sources, by such former
employees. Our suegestions here are only limited ones. Section 501 (a) differs
in two ways from the Department's bill, and in each we believe the Department's
formulation is probably preferable on policy grounds. First.. the Department
bill covers any former employee who had inside access to identities informa-
tion, whether or not the inside information was technically classified. In con-
trast. S. 2216 would cover only those employees who had authorized access to
classified identities information. Second, the Department bill would cover
anyone who conspires with or aids and abets a former government employee
in violating his trust, whereas S. 2216 would exclude cooperating persons unless
intent to impair or impede foreign intelligence activities could be shown. Under
the circumstances, we believe that the Department's broader coverage aimed at
preventing breach of trust is more appropriate.
The second provision of S. 2216, section 501 (b). Is the provision that gives
us pause. It would create a misdemeanor offense that covers any disclosure of
identifying information by any person. Including ordinary citizens who never
have served in the government and never have access to classified or inside
information. The prohibition of section 501(b) applies to disclosures even
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of publicly available information by any voter, journalist, historian or dinner
table debater, if the disclosure is made "with the intent to impair or impede the
foreign intelligence activities of the United States." To fall within the prohi-
bition, a person need not realize that his disclosure of indirect information has
the cumulative impact of identifying an agent or source, but only have "reason
to know." To fall within the prohibition, a person need not have any special
expertise, authority or credibility stemming from prior government service.
Our reservations regarding section 501(b) are based both on policy and on
constitutional uncertainty. In proposing a section of such breadth, S. 2216
marches overboldly, we think, into a difficult area of political, as opposed to
scientific, "born classified" information, in a context that will often border on
areas of important public policy debate. Conversational speculation about
whether foreign official X may have been a CIA source and whether we have
covert operatives in country Y, ordinary discussions by citizens about foreign
affairs apd the nature and extent of our intelligence activities abroad, could
come chillingly close to criminality under the standard of section 501(b).
A speaker's statements about covert activities could be punished even though
they are not based on direct or indirect access to classified information, do not
use inside methodology acquired by the speeaker in government service, and are
unimbued with any special authority from former government service.
Section 501(b)'s specific intent requirement, that an individual must have
acted with "intent to impair or impede the foreign intelligence activities of the
United States," and that such intent cannot be inferred from the act of disclosure
alone, is not a fully adequate way of narrowing the provision-either in serving
First Amendment values or in facilitating effective prosecutions. The specific
intent requirement may itself have the effect of additionally chilling legitimate
critique and debate on CIA policy because general criticism of the intelligence
community could seem to corroborate an "intent to impair or impede." A main-
stream journalist, who occasionally writes stories based on public information
concerning which foreign leaders are thought to have intelligence relationships
with the United States, may fear that any other stories by him critical of the
CIA will be taken as evidence of an intent to impede foreign intelligence activi-
ties. Speculation and debate concerning intelligence activity and actors would
be seemingly more hazardous if one had ever taken a general position critical
of the conduct of our covert foreign intelligence policy. Taking the problem from
the other direction, since any past or present criticism of the CIA might provide
the "something extra" beyond the act of disclosure to prove specific intent, citi-
zens may be unwilling to hazard a speculative discussion of covert intelligence
policy for fear they will unwittingly name an intelligence source correctly.
The specific intent requirement also can hamper effective enforcement by cre-
ating a difficult jury question. Any person willing to gamble on the outcome of a
prosecution can claim to a jury that his intent was to inform the American
people of intelligence activities he believed to be improper or unnecessary, rather
than to disrupt successful intelligence gathering ; the Government may often find
it difficult to convince a jury beyond a reasonable doubt that there was intent to
impede in light of such a claim.
A related, serious enforcement problem is that the specific intent requirement
could provide an opening to defendants to use the trial as a forum to demonstrate
alleged abuses by the intelligence community or to press for disclosure of sensi-
tive classified information on the ground that it was relevant to showing that
their intent was to reform, rather than disrupt. The Justice Department is con-
cerned that the specific intent element will facilitate "graymail" efforts to dis-
suade the Government from prosecuting offenders.
In my appearance last January, I was asked by the House Intelligence Com-
mittee whether the Department believes section 501(b) of H.R. 5615 and S. 2216
would be held constitutional. Our sincere answer has to be that we don't know.
Under the First Amendment the viability of a criminal statute does not depend
entirely upon how it is applied in a particular prosecution. Even if the conduct
that the Government seeks to punish is not protected by the First Amendment,
the court may ask whether the statute is drafted so broadly that it could be
applied in other cases to reach protected speech and by that "overbreadth" per-
haps chill protected speech.
If the court so finds, it may hold the statute void. Though the doctrine of over-
breadth is apparently now undergoing some change and may not carry the force
it once had, as was witnessed in the Supreme Court's decision in Broadrick v.
Oklahoma, 413 U.S. 601 (1973), it still is a doctrine to be reckoned with.
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In our view, ? 501(b) has the potential for constitutional and unconstitutional
application. Given the current uncertainty regarding the overbreadth doctrine,
I simply do not know whether a court would find this measure so "substantially
overbroad" as to be unsuitable as a vehicle for prosecution in any and every
case. There are certainly other approaches, such as the Department's bill, which
far more clearly fall on the safe side of the constitutional mark. The Depart-
ment's approach is tailored not on the criterion of intent, but rather on the
wrongful use of inside information-whether it be classified information obtained
from an inside source, or inside methodology and expertise applied by former
government intelligence personnel to public record information. This focus
on inside access will, we believe, seem to courts more carefully fitted to the
harm the Government is seeking to avoid, and far less burdensome on the right
of the general public to discuss policy questions concerning foreign affairs and
intelligence activities.
We believe that the Justice Department bill will provide significant protec-
tion against any escalation of the undesirable actions of anti-intelligence groups
over the last several years. Undisclosed methods of creating intelligence covers
will not be subject to breach in a show-and-tell display by irresponsible former
government employees unless they are willing to suffer a felony consequence. By
restricting the ability of persons who formerly occupied positions of trust with-
in the intelligence community to abuse that service-acquired expertise, the De-
partment bill will go far towards inhibiting the purposeless revelation of covert
identities.
I have talked at length about S. 2216. Let me say a few words about the re-
maining bills which Chairman Bayh has informed me are presently being con-
sidered by the Select Committee.
Title VII of S. 2284, as introduced by Senator Huddleston. is substantially
similar to Section 501(a) of S. 2216, and to Section 802 of the Department's
proposal. My first suggestion above concerning Section 501(a) is thus applic-
able here too. As another minor matter, S. 2284's coverage of ext.-'territorial
offenses is narrower than our bill or S. 2216, excluding permanent resident
aliens who commit acts of disclosure abroad. S. 2284 also includes no penalty
for those who act in concert with former government employees, which we be-
lieve is an unwarranted omission.
S. 191, introduced by Senator Bentsen, is more or less akin to the first part of
the Department's bill in that it deals with unauthorized disclosures of classified
information. From our point of view, however, it has several hampering limita-
tions. It only covers persons who have had "authorized" possession of classified
information, excluding those who gain unauthorized access to classified docu-
ments or information. Second, it does not especially define the term "disclosure"
to include "publishing", and thus does not resolve once and for all the Pentagon
Papers question. Third, it covers only CIA identities, and not the covert identities
used by other defense intelligence agencies.
Amendment 1682 to the Criminal Code Revision, introduced by Senator
Simpson, substantially embodies the two provisions of S. 2216 but with one radi-
cal difference : It would also restrict identity information concerning undercover
agents and informants cooperating in domestic law enforcement activities with
the Federal Bureau of Investigation, the Drug Enforcement Administration, and
any other Federal law enforcement agency. In our view, the problems of domestic
law enforcement and of foreign intelligence operations are sufficiently dissimilar,
and the scope of the interests at stake so different, that it is a mistake to try
treating both at the same time.
The final bill under consideration is Title II of H.R. 6820, introduced in the
House by Representative Aspin. Like the second provision of the Department's
bill, Congressman Aspin's proposal covers present and former government em-
ployees. H.R. 6820 would penalize any disclosure of inside identity informa-
tion that was "acquired as a result of having authorized access to classified
information." In addition, it would penalize any "use" of such inside informa-
tion to publicly identify covert agents. This appears to be quite similar in
aim to section 802 of the Department's bill, seeking to prevent former intelli-
gence employees not only from disclosing inside information but also from using
inside methodology and expertise to assemble public record information. How-
ever, while carefully targeted at the objectionable use of inside information, the
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Aspin bill may create some almost impossible problems of proof for the Govern-
ment. It is one thing to show that a former employee had access to covert
identity information in the course of his employment; the Department favors
restricting all identity statements, even when based on public information, by
such individuals on the rationale that their employment has probably given
them special expertise in discerning covers. It is much more difficult to prove in
each particular case that beyond a reasonable doubt a former intelligence
employee's sifting of publicly available information "used" his inside metho-
dology or expertise, that is, could not have been performed by an outside per-
son. Because of the difficulties in proof created by Congressman Aspin's formu-
lation, the Department prefers the broader coverage provided for in our draft bill,
prohibiting all knowing statements about identity by former insiders.
In light of our comments concerning the various bills under discussion today
the Department of Justice would recommend that consideration should be given to
its current draft proposal. We would be happy to work with the staff of your
Committee to draft a bill which would avoid the problems we believe inherent in
S. 2216 and several of the other proposals.
Mr. Chairman, that concludes my prepared statement. If you or the other mem-
bers of the Committee have any questions, I would be pleased to attempt to
answer them at this time.
APPENDIX-DEPARTMENT OF JUSTICE BILL
A BILL To prohibit the disclosure of information identifying certain individuals engaged
or assisting in foreign intelligence activities of the United States
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That this Act may be cited as the "Foreign
Intelligence Identities Protection Act."
Sec. 2. The Congress hereby makes the following findings :
(a) Successful and efficiently conducted foreign intelligence activities are
essential to the national security of the United States.
(b) Successful and efficient foreign intelligence activities depend in large part
upon concealment of relationships between components of the United States gov-
ernment that carry out those activities and certain of their employees and sources
of information.
(c) The disclosure of such relationships to unauthorized persons is detrimental
to the successful and efficient conduct of foreign intelligence and counterintelli-
gence activities of the United States.
(d) Individuals who have a concealed relationship with foreign intelligence
components of the United States government may be exposed to physical danger
if their identities are disclosed to unauthorized persons.
Sec. 3. Title 18, United States Code, is amended by adding the following new
chapter:
"Chapter 38-Disclosure of information identifying certain individuals engaged
or assisting in foreign intelligence activities"
Section 800. Definitions. As used in this Chapter :
(a) "Discloses" means to communicate, provide, impart, transmit, transfer,
convey, publish, or otherwise make available to any unauthorized person.
(b) "Unauthorized" means without authority, right, or permission pursuant to
the provisions of a statute or Executive Order concerning access to national
security information, the direction of the head of any department or agency en-
gaged in foreign intelligence activities, the order of a judge of any United States
court, or a resolution of the United States Senate or House of Representatives
which assigns responsibility for the oversight of intelligence activities.
(c) "Covert agent" means any present or former officer, employee, or source of
an intelligence agency or a member of the Armed Forces assigned to duty with
an intelligence agency (i) whose present or former relationship with the intelli-
gence agency is protected by the maintenance of a cover or alias identity, or, in
the case of a source, is protected by the use of a clandestine means of communi-
cation or meeting to conceal the relationship and (ii) who is serving outside the
United States or has within the last five years served outside the United States.
(d) "Intelligence agency" means the Central Intelligence Agency or any for-
eign intelligence component of the Department of Defense.
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(e) "Classified information" means any information or material that has been
determined by the United States government pursuant to an executive order,
statute, or regulation, to require protection against unauthorized disclosure for
reasons of national security.
Section 801. Disclosure of Intelligence Identities.
(a) Whoever knowingly discloses information that correctly identifies another
person as a covert agent, with the knowledge that such disclosure is based on
classified information, or attempts to do so, is guilty of an offense.
(b) An offense under this section is punishable by a fine of not more than
$50,000 or imprisonment for not more than ten years, or both.
(c) There is jurisdiction over an offense under this section committed outside
the United States, if the individual committing the offense is a citizen of the
United States or an alien lawfully admitted to the United States for permanent
residence.
Section 802. Disclosure of Intelligence Identities by Government Employees.
(a) Whoever, being or having been an employee of the United States govern-
ment with access to information revealing the identities of covert agents, know-
ingly discloses information that correctly identifies another person as a covert
agent, or attempts to do so, is guilty of an offense.
(b) An offense under this section is punishable by a fine of not more than
$25,000 or imprisonment for not more than five years, or both.
(c) There is jurisdiction over an offense under this section committed outside
the United States if the individual committing the offense is a citizen of the
United States or an alien lawfully admitted to the United States for permanent
residence.
Senator CHAFEE. Thank you, Mr. Keuch. That was very helpful. As
I understand it, the reason that the Department did not prosecute Agee
is based upon the doubt deriving from the Pentagon Papers case as to
whether publication qualifies under the existing statutes.
Mr. KEUCH. Senator, that would be part of our concern in consider-
ing prosecution. The full reasons for the failure to date to prosecute
Mr. Agee, I think, are matters that could be covered only in executive
session. In response to your question, however, the concern whether or
not we believe the passage of legislation such as the committee is dis-
cussing here would meet some of the concerns that have lead to the
failure to prosecute Mr. Agee at this point, I think the answer to that
has to be yes.
Senator CHAFEE. Let me see if I can get the difference between the
prosecution of a former employee and the prosecution of one who
conspires with and aids and abets a former employee in violating his
trust. Let us take the situation of Agee who, with this expertise, hires
some bright young college student who has never been near the CIA
and who has never had access to classified information, but who Agee
trains to use existing documents.
Can we nail that person? I refer to page 10 of your testimony.
Mr. KEUcx. I would say that the individual could be covered under
the formulation of the Department's bill in two separate ways : First,
if the methodology itself is, in fact, protected by the classification
process-that is, the system and method of discerning agents is classi-
fied-then it seems to me the individual could directly if it could be
established he was aware of that fact, be prosecuted under the first
section of the Department of Justice bill.
The second is foreshadowed by the introduction to your question,
that is the conspiracy or aiding and abetting section, the second part
of the Department of Justice bill. If the prior employee is using
methodology, using his background and expertise to provide a means
by which the intelligence agents identity can be disclosed, the Depart-
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33
ment would be in a position that that individual could be prosecuted
as an aider, abettor, or conspirator with Mr. Agee under the second
section.
We think there are two methods under the present formulation by
which that individual could be reached.
Senator CHAFEE. You keep referring to it as the Department bill.
Mr. Carlucci says his agency supports your bill. Why don't you call
it the administration bill?
Mr. KEUCH. I think that is probably a better terminology. It is the
administration's bill.
Senator CHAFEE. It is the administration's bill?
Mr. KEUCH. Yes.
Senator CHAFEE. Let us look at page 10. The Department bill would
cover anyone who conspires with or aids and abets a former Govern-
ment employee in violating his trust, whereas S. 2216 would exclude
cooperating persons unless intent to impair and impede foreign intel-
ligence activities can be shown. Under your bill, do we have to show
that the former agent was using classified information?
Mr. KEUCII. No. It is our concept that the individual who is a former
employee, who was in a position of special trust, is violating that trust
and there is no need to show that the disclosure of the covert identity
was based on classified information. Of course, there are provisions of
the bill that would require that the identities that are being disclosed
are, in fact, identities that the Federal Government and intelligence
services are taking steps to protect.
The definition of "covert agent" in the bill has a number of require-
ments that indicate the individual must be presently in covert status
or with regards to a source he must be protected by clandestine means
of communication. My point is that it does not cover those individuals
who are in fact not secret, covert agents.
Senator CIIAFEE. If we had your bill on the books now, what could
we do to Mr. Agee? Would we have to get personal jurisdiction over
him?
Mr. KEUCH. No, sir; he is a citizen of the United States at this
point. The bill would have extra territorial application to citizens and
resident permanent aliens of the United States. Even though they were
acting outside the United States, there would be criminal jurisdiction.
Investigations could be conducted and if proof could be developed,
an indictment could be returned, and if Mr. Agee returned to the
jurisdiction at any time, we could take effective criminal prosecution
steps.
Senator CHAFEE. As a member of the Justice Department, how con-
fident would you be in proceeding-forget Mr. Agee-against someone
of his ilk under this statute? Would you feel that you had a reason-
able opportunity to obtain a guilty verdict?
Mr. KEucH. Yes.
Senator CHAFES. In other words, you do not think that we are
wandering into a new thicket here that is fraught with problems of
constitutionality and objections of that nature?
Mr. KEUCH. One of the reasons the Department of Justice and the
administration support the Department of Justice formulation is that
we do believe that in legislating in this area we are raising constitu-
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tional concerns, and there are questions, very important questions, of
public policy. That is why we feel that the narrow, more limited ap-
proach taken, in our view, in the Department of Justice formulation
is the preferable approach.
But we do believe we have met those constitutional concerns and
claims, and do feel it would be an effective prosecutive tool.
Senator CHAFEE. I think we would be a pretty helpless nation if
we are so tangled up with the first amendment that we are not able to
obtain prosecution and convictions in a case as flagrant as this. I
cannot believe that was the objective of the Founding Fathers when
they included the first amendment.
Mr. KEUCH. I absolutely agree, Senator.
Senator CHAFEE. Mr. O'Malley, Mr. Keuch stated he did not think
we really ought to include the FBI in the legislation? That is the
comment on Senator Simpson's bill. I guess that the Justice Depart-
ment believes that we would be getting into too much to try to cover
the FBI situation in this legislation. What do you think?
TESTIMONY OF EDWARD O'MALLEY, ASSISTANT DIRECTOR,
FEDERAL BUREAU OF INVESTIGATION
Mr. O'MALLEY. Senator, I have a brief opening statement.
Senator CxAFEE. Go ahead.
Mr. O'MALLEY. Mr. Chairman and members of the committee it is a
pleasure to be here this morning to examine the provisions of ?. 2216
and related measures designed to protect covert sources and employees
from disclosure by employees or former employees and others who in-
tend to damage the national security of the United States.
The last few years have been examples of those who seek to cause
injury to our intelligence efforts and at that same time place the lives
of our employees and sources at risk. There is no question that this
issue must be addressed before additional damage occurs.
Mr. Chairman, Director Webster, in his recent appearance before
this committee on the intelligence charter, supported a criminal statute
to protect the security of individuals who are in a covert relationship
with the United States and suggested that the charter version of
identities protection include protection for FBI foreign counterintel-
ligence and international terrorist sources and employees within the
United States and abroad.
As you recall, Admiral Turner introduced the administration ver-
sion of identities protection at the time of his testimony before the
committee and the FBI fully supports this formulation.
I recognize that CIA personnel have received the brunt of harmful
disclosures to date but there is no assurance that any intelligence en-
tity will be exempt from these disclosures in the future. I find it diffi-
cult to distinguish between the potential harm from disclosure of a
CIA employee or source and an FBI employee or source.
All of us in the intelligence community need this measure of deter-
rence so that our efforts will not be compromised. It is my suggestion
that any proposal for protection of identities should include covert em-
ployees or assets of any U.S. intelligence agency or entity.
There has been some controversy about the application of some of
the versions of the bill to coconspirators or aiders and abetters of the
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principal, particularly as it may relate to a journalist who might pub-
lish the identities. The FBI does not support the proposition that these
versions are aimed specifically at journalists or any other class of per-
sons but I do not believe that any immunity should be granted from
the criminal laws if in fact a conspiracy exists.
There is some concern that the provision of S. 2216, which requires
the element of specific intent to impair or impede the foreign in-
telligence activities of the United States, may be an extremely difficult,
if not impossible, standard of proof to meet.
It is my belief that a knowing disclosure based on classified infor-
mation or current or former access to covert identities information
should be the appropriate standards. As we all know this protection
could be very significant to the intelligence efforts of the United States
and to the lives of those whose affiliations are disclosed.
Mr. Chairman, that concludes my statement. I will be pleased to an-
swer any questions the committee may wish to ask.
Senator CHAFEE. Mr. O'Malley, we have a little difference of ap-
proach here. As I understand your statement, you would like some
protection, some coverage for your people, and your sources, and Mr.
Keuch does not wish to go into that.
Mr. O'MALLEY. There is no difference of opinion here. The expres-
sion that Mr. Keuch used was "domestic law enforcement." I am dis-
tiguishing between the domestic law enforcement side of the FBI and
the foreign counterintelligence area.
Mr. KEUCH. The administration and Department of Justice fully
support the FBI's wish to be covered insofar as it relates to counter-
intelligence personnel.
Senator CHAFES. You think your act does that?
Mr. KEUCH. Not at the present time but we would certainly agree
with an amendment of the definition of covert agent to cover that class
of FBI agent, source, or employee.
Senator CHAFES. How complicated would that be?
Mr. KEIICH. Not complicated at all, sir.
Senator CHAFES. But you do not yet have it. Do you have an
amendment prepared?
Mr. KEIICH. No, sir, but I can have it to the committee staff very
quickly. We would agree with that amendment and support it.
Senator CHAFES. Here is my problem. I do not know whether I am
representative of the whole committee on this. Yes, we would like to
accommodate the FBI because the counterintelligence is an area obvi-
ously in which they deal as well. Whether that makes our problems
more difficult in that it might insure that we would have to go to the
Judiciary Committee for review I do not know.
I suppose that probably it would have to go there anyway. In any
event, why don't you send up that amendment, maybe by the first of
next week. Do you think you could get it up then?
Mr. KEIICH. Yes.
Senator CHAFEE. Show us where to incorporate it and we will do
that.
These comments are very helpful, particularly your statement,
where you refer to the bills presented both by Senator Simpson and
Mr. Aspin, both of whom are going to be here this afternoon. So, I will
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be able to discuss with them their approach and the approach that the
administration feels is a more favorable one as regards their proposals.
We may have questions we want to get back to both you gentlemen
on after we complete the hearings and hear from the opposition.
We thank you very much for coming. We appreciate your patience
while we were absent for the vote.
Mr. KEUCH. Thank you, sir.
Chairman BAYH. We will recess now until 2 o'clock this afternoon.
[Whereupon, at 12:35 p.m., the committee was recessed to reconvene
at 2 p.m. the same day.]
AFTER RECESS
[The committee reconvened at 2:25 p.m., Hon. Jake Garn
presiding.]
Senator GARN. The committee will come to order.
We are happy to welcome as the first witness this afternoon our
colleague Alan Simpson and Representative Charles Bennett. Do you
have anything you would like to say, Senator Chafee ?
Senator CHAFEE. I would like to welcome Representative Bennett,
whom I had the great pleasure to work with when I was in the Navy
Department. I am glad to see you once again.
Mr. BENNETT. Thank you, sir.
Senator GARN. Proceed.
Senator SIMPsoN. Congressman Bennett and I have been speaking
with each other. He has a time problem and I am certainly prepared
to defer to him so that he might proceed if that is acceptable to the
committee.
Senator GARN. Certainly.
TESTIMONY OF HON. CHARLES E. BENNETT, A REPRESENTA.
TIVE IN CONGRESS FROM THE STATE OF FLORIDA
Mr. BENNETT. We are having a series of rollcalls.
I appreciate the opportunity to appear before your distinguished
committee to give testimony on the need for legislation to provide
criminal penalties for the unauthorized disclosure of information
identifying individuals engaged in foreign intelligence activities.
These types of disclosures have no redeeming social value and have
been made mainly by individuals who are openly undermining our
Nation's vital intelligence efforts. Leading the list is Philip Agee, a
former CIA employee, who has published the names of some 1,200
alleged CIA personnel and whose most recent book, "Dirty Work,"
purports to identify over 700 past and current CIA employees in
Europe alone.
That these disclosures have been made with relative impunity and
commercial success is a travesty and serves no purpose but to en-
courage others in the continuation and expansion of such destructive
activity.
Such disclosures not only place in jeopardy the lives and safety of
this Government's intelligence officers and their families as well as
the lives and safety of those who cooperate with the United States in
fulfilling its intelligence mission but also have an adverse effect on
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the foreign intelligence and counterintelligence efforts of the United
States.
The fact that the United States to date has not been able to fashion a
legal remedy to put a stop to such disclosures has severely damaged
this Nation's credibility in its relationship with essential foreign
sources of intelligence.
The problem can be simply stated as follows : Current law is insuffi-
cient to cover the type of conduct that must be protected against; Con-
gress has been unable to legislate a remedy; the disclosures continue to
be made; the net result is a damaged intelligence capability and re-
duced national security.
A remedy is needed now. It is urgent that the 96th Congress clearly
and compellingly demonstrate that the unauthorized revelation of the
identities of our intelligence officers and those allied in our efforts will
no longer be tolerated.
The bill I have introduced provides the needed remedy. Subsection
(a) of H.R. 3762 would make it a criminal offense for any present or
former officer or employee of the United States or member of the mili-
tary to knowingly disclose to anyone not authorized to receive it in-
formation which identifies anyone not publicly associated with the
U.S. Government's foreign intelligence or counterintelligence efforts
and whose association therewith is classified.
Subsection (b) would criminalize the same activity as described
above for subsection (a) but is focused on those who, even though not
present or former U.S. Government officers or employees or military
personnel, have or have had a position vis-a-vis the U.S. Government
which granted them access to identifying information. The U.S. Gov-
ernment contractor or his employee is an example of the subsection (b)
potential defendant.
Subsection (c), in turn, would make it a criminal offense for anyone
not described in subsection (a) or (b) to knowingly disclose to any-
one not authorized to receive it information which identifies anyone not
publicly associated with the U.S. Government's foreign intelligence or
counterintelligence efforts and whose association therewith is classified
where, as a result of the disclosure, the identified individual's safety or
well-being is prejudiced or where such disclosures damage the foreign
intelligence or counterintelligence activities where this prejudices the
individual's safety or adversely affects the foreign affairs functions of
the United States.
The individual identified as being associated with the U.S. intelli-
gence efforts, whether correctly or incorrectly, may be nonetheless
prejudiced and his or her future effectiveness called into question as
W ayy be the role he or she plays in the foreign affairs functions of the
.S. Government.
In addition, my bill provides injunctive relief and makes provision
for an in camera proceeding so that the court in camera may determine
whether the information about to be disclosed is that for which a
criminal penalty may be imposed.
The bill does not purport to criminalize disclosures made pursuant
to a Federal court order or to either of the Intelligence Oversight Com-
mittees or disclosures otherwise authorized by Executive order or by
directive of the head of any U.S. department or agency engaged in
foreign intelligence or counterintelligence activities.
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On the other hand, the bill would allow prosecution of accomplices
or conspirators, including, if guilty, members of the news media in
those cases of prosecution under subsection (c). The courts have con-
sistently recognized that the first amendment freedom of speech does
not prevent legislation such as I propose. Our distinguished fore-
fathers who drafted the first amendment clearly never intended it to
be a shield behind which those who would wish to undermine the in-
telligence efforts of the United States might stand with impunity.
Mr. Chairman, I urge my colleagues to take swift and sure action in
the 96th Congress?to pass legislation to accomplish the purposes I have
outlined. I am optimistic that the 96th Congress will be remembered
as one that dared to speak out against those who currently are working
to destroy our intelligence agencies.
Thank you. I appreciate the courtesy shown me in allowing me to
testify out of order.
Senator GARN. We are happy to have you today. We certainly agree
there is a loophole as large as a barn door that is open and we must do
something about these disclosures.
Senator CHAFES. Do you have to dash out right now?
Mr. BENNETT. Within 2 or 3 minutes I do.
Senator CHAFES. Let me ask you quickly : Where do things stand
now on your bill or on the House version?
Mr. BENNETT. The testimony has been taken. It is being written up
and I think it will be enacted but it has not yet passed the House. It
has not come out of the Intelligence Committee but I am sure it will.
Senator CHAFEE. Will that have to be referred in any way to the
Judiciary Committee?
Mr. BENNETT. It is my understanding it goes straight to the floor.
My prognosis is that it is going to pass.
Senator CHAFES. This year?
Mr. BENNETT. This year, yes, sir.
Senator CHAFEE. Thank you very much.
Mr. BENNETT. I appreciate both of you fine gentlemen with whom I
have served in a military capacity. You are doing an excellent job.
Senator GARN. Mr. Simpson.
TESTIMONY OF HON. ALAN K. SIMPSON, A U.S. SENATOR FROM
THE STATE OF WYOMING
Senator SIMPSON. Thank you, Mr. Chairman and Senator Chafee.
Obviously these are times of crisis and concern with the crises over-
seas and the flood of illegal immigration and unparalleled crises in
drug traffic and insidious growth in organized crime. I think we should
be doing everything possible to strengthen the ability of our intelli-
gence and our counterintelligence and our Federal law enforcement
agencies to function effectively and efficiently.
Senator CHAFEE. I wonder if you could speak into the mike a little
bit. It is a little hard to hear.
Senator SIMPSON. I do not think that we can afford the luxury of
handcuffing the CIA and the FBI and the DEA and other agencies
with restrictions. I realize fully that I am on the scene only 18 months
but, observing from afar when I was in private life, we have observed
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with an almost morbid fascination the near destruction and disman-
tling of the American intelligence and counterintelligence capability
and the crippling of this Government's ability to conduct undercover
investigation. Obviously that is true or we would not be dealing with
these many aspects of legislation.
This, of course, has come about in part because of the inability of the
Justice Department to successfully prosecute those individuals who
intentionally disclose the identities of undercover employees and
agents and informants working in behalf of those Federal agencies
which are charged with human source intelligence collection and law
enforcement investigative functions.
Of course, one such international disclosure led to the assassination
of our CIA station chief in Athens, Greece, and for the same reason
now many foreign intelligence-gathering services which had previ-
ously cooperated quite willingly with us refuse to do so out of the
simple fear that the fact of their cooperation will be made public or
their sources of intelligence will be compromised.
I think we have been responsible in recognizing, however belatedly,
the absolute necessity for simplifying the awesome, difficult task of the
CIA by repealing the Hughes-Ryan amendment and legislating the
appropriate oversight functions of the Intelligence Committees in
Congress.
I am very pleased by the fact that so many other Senators and Con-
gressmen have proposed legislation that would also provide for CIA
agents the type of legal protection that, in my judgment, the proposed
criminal code will provide. I join in support of these efforts.
I doubt, however, that members of this committee can predict if or
when such legislation will be reported, and I am one who believes that
the criminal code is here and should be considered on the floor of the
Senate and it will be considered on the floor of the Senate before the
end of this session.
So my amendment is also more appropriately considered in conjunc-
tion with the criminal code since it is a. general criminal provision and
it does not in any way deal with the substance of the CIA or the FBI
or any other Federal agency in their daily operations. It merely serves
to protect those CIA. FBI and DEA and other Federal agency per-
sonnel who are daily risking their lives in undercover capacities from
having their undercover identities deliberately and maliciously dis-
closed by those who are often hostile even to the very idea of the exist-
ence of these agencies, or those who are in league with elements whose
hostile or criminal activities threaten international harmony or domes-
tic tranquility.
Domestic law enforcement agencies, including the FBI and the Drug
Enforcement Administration, have also experienced great difficulty in
recruiting agents and informants because those persons rightly fear
simply that their lives are in danger.
Three years ago we witnessed the spectacle of the DEA's trying to
prevent a local newspaper from publishing the names of DEA agents
who were risking their lives working in undercover operations in the
Washington metropolitan area. In order to prevent those and similar
aberrations of logic from recurring, I have introduced this amendment
to the proposed criminal code.
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40
The amendment will make it a crime to deliberately reveal the iden-
tity of any undercover agent or a criminal offense to reveal the iden-
tity of any person giving assistance to a Federal law enforcement or
intelligence agency. This amendment, I think, would assure that there
will no longer be any doubt concerning this Government's willingness
or ability to protect those of its citizens and the citizens of other na-
tions who choose to risk their lives by providing their Government
with the information necessary to protect our country from those who
would seek the obstruction of our various freedoms.
The first portion of the amendment makes it unlawful for any
present or former employee of any intelligence or law enforcement
agency to use that position to reveal the identity of any undercover
employee or agent of a Federal law enforcement or intelligence
agency. This strict criminal liability for present or former employees
of such Federal agencies, I believe, is entirely consistent with the vol-
untary contractual agreement that the employee and the employer
enter into upon their appointment not to intentionally disclose classi-
fied or sensitive information.
This is very important, Mr. Chairman and members. In those in-
stances where prosecution is sought against a third party who pub-
lishes such a disclosure, it would be necessary under this amendment
for the Government to prove a premeditated intent to impair or im-
pede the Federal law enforcement or intelligence functions of our
Government.
The requirement to establish that intent protects the first amend-
ment provisions which, I think, are so necessary to protect the news
media in the legitimate conduct of their constitutionally guaranteed
functions.
For too long, in my mind, it has been fashionable in certain self-
styled circles to deride and pooh-pooh the need for a strong
intelligence-gathering and counterespionage capability. It has simi-
larly been, I think, the "in" thing to deride the FBI and other law
enforcement agencies as somehow being out of touch with the will of
the people.
I have found that, in my observations from afar, some, I think, have
thought that by attacking and crippling the CIA and the FBI, they
might ride that political tiger into high political prominence and
office because of those elements who enjoy giving them an audience for
those views.
So it took the kidnaping of our diplomatic personnel in Tehran
and the brutal Soviet invasion of Afghanistan to suddenly convince
this administration that perhaps there are those in the world who
perceive restraint and desire for human understanding as a weakness
to be exploited at any and every opportunity. If we desire to know
their intentions before their actions, then we need a functioning, CIA
and not just a lifeless shell to tell us about it and necessarily do
something about it.
In conclusion, Mr. Chairman, I appreciate your courtesy. I do not
want in these remarks to imply that I unreservedly approve anything
or everything that is done in the name of national security by the FBI
or CIA during the past 30 years, but I do think that it is time to get rid
of the orgy of guilt and self-flagellation through which we have now
come to this end.
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The errors have been exposed and corrected, and I think this able
and very effective committee, your committee, in which I have
tremendous confidence, stands ready to exercise the necessary oversight
to assure that the abuses do not occur; but we can't continue to demand
that the CIA and the FBI of the 1980's pay for the errors and
omissions and the sins of those who preceded them in the 1950's and
1960's.
It is a new ball game and a far more dangerous world and we must
face those realities. I feel this amendment is a small step in that
direction. I solicit your assistance and will try to answer any
questions I can about the amendment specifically.
Senator LEAHY. May I ask a couple of questions first since I have to
go to a caucus at 3 unless you would like to go to the caucus, Jake, and
I will stay here.
Senator GARN. He is talking about a Democrat caucus and I don't
think I have too much influence.
Senator LEAHY. Probably as much as I have.
Let me make sure I fully understand the gist of what you are saying.
I have said over and over again during my days in private practice
of law, during my days as a law enforcement official and since I have
been in the Senate that anybody is naive to think that a country as
militarily powerful as ours could operate without a very effective and
very good intelligence service.
In fact, if we had an absolutely perfect intelligence service with the
ability to give us intelligence on any matter we wanted, to that extent
it would be one of the greatest things possible for peace. We would
not make military mistakes with perfect intelligence; we don't make
foreign policy mistakes.
We don't live, however, in a perfect world and while we strive and
will strive to have the best intelligence service conceivable, there will
always be some areas of less than perfection. To the extent that we
have less than perfection, we are diminished in our ability to carry out
foreign policy and military policy, and so forth.
I also feel that, if we have an intelligence service that acts in a
clandestine fashion and the operation requires acting in a clandestine
fashion, it is also diminished to the extent that that clandestine action
becomes public. While there is a lot that our intelligence services can
do, and do, in the open, there is a great deal that they have to do in a
secret fashion. Again, anybody would be naive to suggest otherwise or
to want that secret activity made public. I think we are all in agree-
ment on that.
Having said that, let us go back another step. What happens if
somebody within the intelligence service leaks something to the press
and the press publishes it? Let me go another step : The Justice
Department knows who published it because it is in the morning paper
but they have no idea who leaked it to the ones who published it.
Who do they prosecute? Do they go after the one who published it or
do they find out who leaked it in the first place?
Senator SIMPsoN. Senator Leahy, under this amendment of mine,
under the section on page 3, the prosecution must prove an intent to
impair or impede the intelligence or law enforcement functions of
the United States. That is a difficult burden of prosecution. Thus, in
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my mind, this provision will not hinder the news media in the proper
conduct of their constitutionally guaranteed right to inform the public.
The whistle-blower under this amendment is given confidentiality if
he goes to your committee. Hopefully, then, instead of leaks and
instead of that type of activity, they will begin to leak it to the right
spot, and that is the intelligence committees of the House and of the
Senate.
Senator LEAHY. As the principal author of the basic whistle-blowers
provisions, my main reason for doing that was to make sure that the
people did come to the appropriate oversight committees and the
appropriate arms of the Government prior to going public, whether it
is within the intelligence service or other agencies.
Senator SIMPSON. Let me add that whistle blowers under this
amendment would still be able to use the news media but they must not
disclose identities in establishing an impropriety. The news media can
still choose to publish identities as long as their intent is to disclose
such identities to reveal impropriety and not to impair and impede
the legitimate intelligence-gathering capability of the agencies.
Senator LEAHY. Let me, as devil's advocate, go further. I am increas-
ingly concerned, as we sit here in the Intelligence Committee, and we
are very, very protective of the secrets that come before us. I know
of no member of either party on the committee who would or has
knowingly or wittingly revealed anything that has come before us in
secret fashion, but we are constantly bothered by the fact that we will
have a closed hearing and almost coterminously the information
becomes public.
We can buy an afternoon edition of either one of the two local
dailies in Washington or some of the others and find exactly what we
are being told in the utmost secrecy, leaks obviously coming from
within the administration itself. I have been here under two different
administrations and it has happened with both of them.
There seems to be a kind of feeling on the part of someone in the
White House or within the various agencies, as there was when Presi-
dent Ford was here, and I am sure there were back with President
Nixon and President Johnson and everybody else, that on the one
hand, they stand up and say with righteous indignation that they are
concerned with sending anything to Congress because it may leak out
and some of the news media will reprint that and say, "Yes, that is
terrible up there," but then the same news media and the same agencies
will quickly collaborate to leak something that will help to carry out
a particular administration policy.
We have seen it just this year alone in several instances. We saw it
following the situation in Iran. If there was ever a time when the
public postmortem should have been withheld until everybody was
back safely out of that country, it was then. In at least one instance,
we could read more in the local papers about matters that had been
given freely to the press in press conferences by the Defense Depart-
ment than we were able to get up here in secret session.
What do we do in a situation where someone can legitimately argue
that the net result of publishing something indeed impedes the ac-
tivities of one particular intelligence agency? It has not been unknown
to have rival intelligence agencies within the Federal Government
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leaking things to the detriment of the others. We have seen that hap-
pen in the last 10 or 15 years in a number of instances. It leas not been
unknown to find one department of the Government leaking something
to the detriment of the other.
I am not suggesting any solution to that. Do you see a problem
with that?
Senator SIMPsoN. It is something that I have given a lot of care-
ful thought to, and that is why I have stayed with the specific word
"identities." Identities are described in the amendment and they are
important because people's lives are at stake. Leaks that have to do
with letting something leak out with great glee and the revelation of
some secret of Government or policy or action of the United States
are bad enough; but when we leak that and a man's identity is at stake,
a person who is involved in an operation for this Government that is
clandestine, then, I think that must be protected above all else.
Just one little bit of philosophy of the Wyoming variety. There are
persons who greatly enjoy doing that. They get a great visceral re-
action out of leaking materials. There is a glee that accompanies that.
That is what I have found in my travels here. You can look around
this room and then wonder how you protect confidentiality just by the
size of staffs that inhibit this particular location of the Earth.
That is the most significant reason why there will always be leaks,
because there are those who are involved in the observation or the
internal processes who really would like to dismantle some of these
agencies and get quite a charge out of that because everything is high
drama in this place. We thrive on that, apparently. There is a great
issue of self-importance that goes with us in our jobs and the egos of
our staff people.
It is something that you can leak to the New York Times, and when
you are in Georgetown sucking the suds on Saturday afternoon, you
can really tell them a story that is really something and certainly
better than anything you would be doing around here.
Senator LEAIIY. I don't think you will find anybody here engaged
in that type of activity, but my concern still goes very much to those
in our Government who don't do it so much gleefully but with very cold
calculation, figuring that it can be done to advance a momentary
policy of the Government or as part of interdepartmental or inter-
agency rivalry.
I think that kind of activity is absolutely reprehensible and I find
it especially so because those people probably have more of a sense
of collegial politics. Members of this committee, for example, have
not done that.
I see the names of agents published, especially those people in the
field who are not the "James Bondian" super-trained war machine but
could very well be an economist or language specialist or somebody
else with a family abroad, who suddenly finds that the job they are
doing is a dangerous one.
I have taken more than my share of time and I apologize.
Senator GAIN. Senator Chafee.
Senator CHAFEE. Senator Simpson, I would like to thank you for
your contribution here and your interest. You might be interested that
previously we had testimony this morning from the Justice Depart-
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ment in which they discussed the various bills, including yours, which
they indicated an opposition to because your bill would not restrict the
identity information to solely those involved with the CIA but would
also include the FBI and DEA and other Federal law enforcement
agencies.
Perhaps through your powers of persuasion and certainly with the
support of the FBI the administration is now going to come in with
a revision to the bill which will include protection for counterintelli-
gence agents and, I suppose, also for the Drug Enforcement Admin-
istration agents, although I am not sure. So your views are becoming
more accepted, which, I think, is encouraging.
Now, yours is an amendment to the criminal code provision. How
would you envision that occurring? What is the status of the criminal
code? I remember, when we dealt with it a year or so ago, all amend-
ments were very, very strongly resisted by both Senator Kennedy and
Senator Thurmond for fear that if one came in, then the floodgates
would be open. So you had this unusual tandem of Senator Kennedy
and Senator Thurmond standing together fighting off amendments
from the right and from the left with equal skill.
First my question is: Where is the criminal code revision? Has it
come out of the committee yet? If so, what chance does your amend-
ment to that have?
Senator SIMPSON. Senator Chafee, the criminal code came out of
committee-I can't recall the exact date-2 or 3 months ago and
will be ready for floor action about July 23 of this year. One of the
vexatious things to me-and I am a cosponsor of it-was that on the
very last day of the markup, when we met in what I guess is the old
barber shop-I felt that I got trimmed in there anyway-there were
some 200 amendments presented. I may be wrong on the figure.
I guess they were weighing them instead of counting them, because
a bale of amendments was presented at that time which no one had any
opportunity to properly view and there was a great deal of what we
are all aware of here, tradeoff and so on.
But within that we didn't deal with the proper addressing of crimi-
nal penalties for intentional disclosure. We did not deal with labor
extortion being outside the scope of the criminal code. We did not
deal with the death penalty. We did not deal with decriminalization
of marihuana. We did not deal with abortion. All of the hot stuff
went to the bottom.
I can understsand that process, but those things are going to cone
up in the debate because they are very important parts of the criminal
code. Hopefully this can be presented as a reasonable approach. I
have no pride of authorship here. Well, I did do it, and my staff, but
I don't care whether it comes out as Simpson's effort or whatever, if
we just address the issue.
So I intend to present it on the floor and hopefully get it to a vote or
you can adapt it or meld it into whatever might be appropriate com-
ing out of here.
The thing I found, Senator Chafee, is that I was conducting the
hearings with regard to the FBI charter, which is where I came to
my interest here, suddenly realizing that the lifeblood of the FBI is
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the informant, not the charter. There is no more appropriate intelli-
gence-gathering device than the informer. Sometimes they are paid;
sometimes they are not. But that is the guts of the FBI.
When we are finding that they are refusing to do things because of
the Freedom of Information Act and because their cover is blown,
you dry up the richest source of law enforcement. That is where my
interest came from.
I think Judge Webster is doing a tremendous job with the FBI.
I think we will find as time goes on he was probably one of the finest
at it because he has a great judicial background and temperament of
protection of persons and civil rights and first amendment rights.
Senator CHAFEE. Thank you very much. I originally came into this
reluctant to get any further afield than the CIA, which is, of course,
the agency that we on this committee deal with closest. After hearing
your testimony and the testimony this morning of Mr. Keuch from the
Justice Department and Mr. O'Malley from the FBI, I am persuaded
that we should adopt the approach you have taken, not going with
the criminal code necessarily-we will see how that comes out; I see
a lot of problems there-but incorporating protection against dis-
closure of identites of individuals involved in those agencies, the DEA,
and others.
it. think you have made a very valuable contribution. We appreciate
.
Senator SIMrsoN. Let me say, John, after sitting next to you for
18 months, I know you are a reasonable man who will listen, and I
appreciate that very much. I mean that.
Senator CHAFEE. Thank you, Mr. Chairman.
Senator GARN. Thank you very much, Alan. We appreciate your
testimony.
Senator SIMrsoN. Thank you for your courtesy. I appreciate the
opportunity.
Senator GARN. Is Willliam Colby here?
Senator LEAHY. The next witness, then, will be John F. Blake,
president of the Association of Former Intelligence Officers.
Mr. Blake, I will note that I am going to be leaving. That is not
in any way a comment on your testimony, which I will read. I do
have to go to a caucus at 3 o'clock. I know that any questions I want
to ask will be asked by Senators Garn and Chafee. If there are any
questions that have not been covered, I might submit some questions
to you to get your feelings on them.
Mr. BLAKE. Thank you, Senator.
Senator GARN. Mr. Blake, you may proceed. If you don't want to
read the entire statement, we will be happy to put the entire state-
ment in the record. You may summarize in any way you would like.
TESTIMONY OF JOHN F. BLAKE, PRESIDENT, ASSOCIATION OF
FORMER INTELLIGENCE OFFICERS, ACCOMPANIED BY JOHN
WARNER, LEGAL ADVISER
Mr. BLAKE. If I may, I would like to identify John Warner, legal
adviser of the association, a former intelligence officer, who is sitting
with me today.
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Gentlemen, the American sense of fair play is a universally known
and respected characteristic of our people and their Government.
There exists no need to cite evidence to this body to support the fair-
ness thesis. It is in connection with this spirit of fair play that I would
like to postulate my observations to you today as you undertake your
study of the various legislative proposals designed to protect the
identities of intelligence officers and agents who are serving their
Government under cover.
Allow me to develop my position. What is involved is this : The
Congress of the United States, through the National Security Act of
1947 and the annual appropriations process, authorized and directed
the conduct of the foreign intelligence functions by this Government.
The executive branch, through the CIA and other elements of the
intelligence community, implements the congressional authorization
and undertakes the recruitment of men and women to perform intelli-
gence tasks. Included are individuals whose duties consist of acquiring
information in foreign countries by the use of clandestine methods.
Some of these countries will have hostile attitudes toward the United
States. Some of these countries will give safe haven to international
terrorists who are hostile to the United States.
The intelligence agencies, in pursuit of their mandated missions,
will post many of these U.S. Government employees abroad in a
guise other than their true purpose. To develop the necessary cover
requires much imagination. the cooperation of other entities in the
Government as well as in the private sector and it is an expensive and
time-consuming process.
Our Government, the employer, expects much from these people.
They will have to perform not only their cover function which is the
ostensible reason for being at a foreign location but also, most im-
portantly, they must perform their clandestine intelligence mission.
The day is just so long for all of us, but for this group of people
it cannot be long enough. The performance of these dual roles can
come at only some expense of normal family life and deprivation of
their own leisure time.
Because of the high degree of selectivity exercised in picking these
people and because of their extraordinary degree of motivation and
dedication, the Government is blessed by their services and they
quietly and effectively pursue their chosen lot. These people are ex-
posed to risks to their persons as well as to their families. It is a fact
that some have been injured, some killed, some murdered, and some
have been arrested and jailed.
Up to this point of posting people abroad the Government has
acted as a responsible and honorable employer. But at this point the
matter of fair play comes to the fore. It is at this point that the Gov-
ernment must say, in honesty, that there is just one thing it cannot
do for these people.
The Government cannot take steps to prevent any American citizen
from undoing all it has done to establish proper cover abroad for these
employees so that the missions for which the Government hired and is
paying them can be performed. It is forced to say the following to
each :
It makes no difference concerning the taxpayers' expense in hiring
and training you ;
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It makes no difference what diplomatic difficulties may be encoun-
tered by your exposure as an intelligence operative ;
It makes no difference that you and your family may have to be
preemptively removed from your local scene;
It makes no difference that your son or daughter is only three months
away from high school graduation;
It makes no difference that you cannot immediately reoccupy your
house in the United States;
It makes no difference that you must immediately sever all intelli-
gence contacts you have established in order to protect them;
It makes no difference that your career, and all the time and expense
involved in creating it is now perhaps ended because of your exposure;
and, lastly and most seriously,
It makes no difference that not only your own personal safety and
welfare is perhaps fatally put in jeopardy abroad but also the lives
of your wife and children who accompany you to your foreign station.
In sum, all that our Government can say to its overseas intelligence
employees is that a witting American whose political biases are con-
trary to the politics of his country can expose you abroad so that your
life and that of your family may be forfeited. And the Government
today can do absolutely nothing about it but say : "Farewell, thou
good and faithful servant."
And that employee, quite properly and correctly, has the right to
ask : "But where is the American sense of fair play?" And that, gen-
tlemen of this committee, is, in my opinion, what this matter of the
protection of intelligence identities is all about.
Of equal importance, of course, is the fact that the furtherance
of the intelligence mission of the U.S. Government is impaired and
impeded. But the gut issue is that the U.S. Government put these
people in their perilous positions and that the U.S. Government, in
its own enlightened self-interest as well as in a sense of fairness, owes
them protection which to date it has seen fit to provide.
This is not the first time that this issue has been aired in the halls
of Congress. In January of this year the House Permanent Select
Committee on Intelligence held hearings on H.R. 5615, the "Intelli-
gence Identities Protection Act." I testified in favor of that legislation
and I heard those who opposed it. I am submitting for the record today
a copy of my statement read before the House committee.
[The statement follows:]
STATEMENT OF JOHN F. BLAKE BEFORE THE HOUSE PERMANENT SELECT COMMITTEE,
JANUARY 30, 1980
Mr. Chairman and members, I wish to thank you for requesting me to appear
before this committee on behalf of the Association of Former Intelligence Officers,
AFIO, to give our views on H.R. 5615, the intelligence Identities Protection Act.
I note that this bill is sponsored by all of the members of the House Permanent
Select Committee on Intelligence.
We in AFIO fully support this bill and urge early committee action looking
toward enactment into law. The need for this legislation is clear and compelling.
It is appalling that the names of confidential employees, agents and informants
of our intelligence services can be spread about or published with impunity. There
must be a law to deter those who would disclose those identities. Not only is the
safety and well-being of such employees and agents put in jeopardy, but there
is significantly harm to ongoing intelligence activities.
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In the aftermath of excessive charges and certain ill-founded allegations of
the mid-1970's, this legislation is a concrete step to enhance the effectiveness of
intelligence. Against the backdrop of world events, positive action will be seen
as well timed. Furthermore, the men and women engaged in intelligence activi-
ties will see this as a positive effort to protect them in their daily work and the
resulting boost in morale wil' be immeasurable.
Many times legislative objectives are shared, but the proposals when drafted
cause difficulties. We recognize the considerable effort and care which have gone
into the specific wording of H.R. 5615. We wish to express our appreciation to
the Subcommittee on Legislation which sent to AFIO in March of last year pre-
liminary drafts dealing with the subject matter of H.R. 5615. Prior to forward-
ing our written comments, AFIO representatives met with your staff for candid
discussions. We believe these efforts were worthwhile and produced an excellent
result.
The problem, Mr. Chairman, addressed by your committee today is both very
real and very current. I should like to call your committee's attention to the most
recent edition of the Covert Action Information Bulletin, December 1979-Jan-
uary 1980. This bulletin is published by Covert Action Publications, a District
of Columbia nonprofit organization. Its board of directors is listed on page 2,
and prominent among those mentioned is Mr. Philip Agee. A regular feature of
this bulletin is a section entitled "Naming Names and Sources and Methods." In
this particular, most recent issues, three pages are devoted to names. The intro-
duction to the names says, in part, and I quote, "As a service to our readers,
and to progressive people around the world, we will continue to expose high-
ranking CIA officials whenever and wherever we find them."
In this particular issue to which I make reference, 16 names are mentioned.
I will not address myself to the accuracy of the identifications because to do so
would only give aid and comfort to the enemy. The potential harm to the in-
dividual and his fancily stands the same, whether identification is correct or not.
The impediment to the work of the Government, let alone the potential damage
to the individual and his family, screams forth if the identifications are correct.
I would also call your attention, Mr. Chairman, to the latest edition of Counter
Spy magazine, identified as volume 4, No. 1, but undated. This piece of jour-
nalism ceased publication for a period but now has resumed. In its current issue,
under the title of "U.S. Intelligence," it lists the names of 34 individuals resi-
dent in five different foreign countries as U.S. intelligence operatives. Every-
thing I said previously about names in the Covert Action Information Bulletin
applies with equal force to the situation here. In the two issues of these maga-
zines alone you have 50 potential examples of U.S. Government employees who
today are bereft of protection from their Government. Swift passage of H.R. 5615
would remedy this egregious wrong.
In conclusion, Mr. Chairman, I would merely state that the membership of the
Association of Former Intelligence Officers is grateful to this committee for its
collective sponsorship of legislation so necessary to protect the best interests
of this country and to protect the welfare of those who in circumstances that
can be both trying and dangerous, labor in the best interests of the Republic.
We hope the enlightened leadership shown here by the Congress will also be
followed in matters pertaining to the protection of sources and methods, modifi-
cations to the Hughes-Ryan Amendment of the Foreign Assistance Act of 1961,
and more reasonable treatment of sensitive information under the amendments
to the Freedom of Information Act.
The main opposition argument was based on the assertion that leg-
islation such as we are discussing today would be an abridgement of
the first amendment rights. I was not impressed or persuaded by that
argument. The first amendment does not give any of us unfettered
rights. In the absence of a conflagration, I have no right to scream
"Fire" in a crowded theater. In the absence of documented proof, I
have no right to question the parentage of a fellow citizen. I have no
right to tell an untruth to this committee or on a court of law.
Identical language on this subject is included in S. 2216 and H.R.
5615, to which previous mention has been made. There are basically
two provisions in each. The first makes it a crime for one having had
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access to classified information to disclose the identity of an under-
cover officer or agent to anyone not authorized to receive classified
information.
The second provision makes it a crime when whoever, with intent to
impair or impede the foreign intelligence activities of the United
States, discloses to anyone not authorized to receive classified informa-
tion the identity of an undercover officer or agent of an intelligence
entity.
It is this second provision which has caused cries of anguish from
an assorted group of critics, some of whose motives are open to ques-
tion. They assert that first amendment rights include the right to
publicize the identities of undercover intelligence officers and agents.
We flatly disagree with this interpretation of the Constitution. The
Government has a right and a duty to conduct intelligence activities.
I have shown earlier that a truly enormous effort is put forth to
recruit and. put in place trained intelligence officers. It is a misreading
of the Constitution to say that the Government is powerless to pre-
serve the laboriously constructed network of intelligence officers and
agents and powerless to provide a degree of protection for the physical
safety of the persons concerned.
As I said earlier, first amendment rights are not absolute. The
critics of this legislation ere composed of some of those who raised
howls of first amendment rights when the Government sought in court
to enforce contract rights against Marchetti and Snepp. CIA went to
the courts to have determi?iect the cuestion of first amendment rights.
And the courts, all the way to the Supreme Court, held that the Gov-
ernment was not powerless to protect its secrets and that its contracts
of secrecy were enforceable in the courts and that first amendment
rights were not being infringed.
If you believe that the identities of intelligene officers and agents
should be protected with criminal sanctions from disclosure, I urge
passage of this legislation. I do not believe we should be moved by
seemingly specious arguments hiding behind the assertion of first
amendment rights. I say: Let the courts rule on the constitutional
issue. The critics have raised their issues before and have lost in the
courts.
What redeeming social purpose is served by permitting, in the name
of the first amendment, a person intending to impair the foreign in-
telligence activities of the United States to publicly disclose the iden-
tity of an undercover intelligence officer or agent, thus knowingly sub-
jecting such officer or agent and his family to the risk of physical
harm or death?
It is simply incredible to us that such action is believed to come
under the umbrella of the first amendment. I say again : Let us at-
tempt to protect our intelligence activities and the persons engaged in
them with appropriate legislation and then let the constitutional ques-
tion be placed before the courts.
In closing, I ask each one of you to answer honestly whether, in
today's world, you would place yourself in the position I have previ-
ously described and in which the Government places its intelligence
employees today. I ask you if you would have peace of mind if your
son or daughter placed themselves in that position. I ask you if you
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can reasonably expect patriotic but intelligent Americans to continue
to assume and bear this intolerable and unfair burden.
I believe it is time we Americans, both individually and in our insti-
tutions, realize that we live in a dangerous and complex world. I be-
lieve it is time we give as much weight to our obligations and re-
sponsibilities as we do to our rights and freedoms. I believe it is time
we practice what we preach-namely, the American sense of fair play.
For if we fail to do it in this instance, we may well contribute to a
future situation where we will be unable to speak of, much less exer-
cise, the American sense of fair play. Thank you.
Senator GARN. Thank you, Mr. Blake. I appreciate your testimony
very much. I certainly agree with it. As I have said before, I think
legislation must be enacted to solve these problems. Senator Chafee.
Senator CHAFEE. Thank you, Mr. Chairman. Mr. Blake, I would
like to thank you also for that very well reasoned statement. As you
know, we are working hard on this problem. I think the pendulum has
swung the other way. You have seen the pendulum swing a long way
in the other direction and now we have what we hope will be final
legislation passing both branches dealing with repeal of Hughes-Ryan
and then getting on with this legislation. Perhaps you heard Mr. Ben-
nett give a very optimistic prognosis of what will happen in the
House.
Mr. BLAKE. I did.
Senator CHAFEE. I was not sure that much could be accomplished
this year because of the heavy schedule in the Senate and I do not
know what we can accomplish, but nonetheless we are going to try in
this committee to come up with a bill and get it out.
I don't know whether you heard the testimony of Mr. Keuch this
morning.
Mr. BLAKE. I did not, sir; I was not present.
Senator CHAFEE. He stated that there is a question on disclosure
under the currently existing law, whether that covers publication. I
am talking about existing law. I guess it is section 793 of U.S.C. 18.
Mr. BLAKE. Would that be the National Espionage Act?
Senator CHAFEE. Yes. He stated that the problem with that was the
question of whether it pertained to publication and they had this in
the Pentagon papers and one lower judge ruled that it did not cover
newspaper publications. After all, this "covert action bulletin" will
qualify as a publication.
Mr. BLAKE. I believe so.
Senator CHAFEE. So that is based on the defense that was used in
the Pentagon Papers case.
Have you known of any prosecutions that have taken place in the
CIA under the Espionage Act?
Mr. BLAKE. Sir, if I may, I would like to turn that question to
Mr. Warner, whose previous incarnation was General Counsel of the
CIA.
Senator CHAFEE. Mr. Warner.
Mr. WARNER. Yes, there have been some prosecutions arising out of
employees' acts in CIA and there have been prosecutions under both
793 and 794, title 18. However, these cases were clearcut espionage
cases-that is, trafficking with the Soviets. That is what those laws
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were designed to deal with. They were not designed to deal with leaks
and disclosures of the kinds we are talking about. The fact that there
have been no prosecutions of people who have named CIA officers
shows the complete ineffectiveness of those statutes to deal with the
problem.
Senator CHAFES. Have you looked at the Justice Department's
bill?
Mr. WARNER. Yes, sir.
Senator CHAFES. Give me your thoughts on that.
Mr. WARNER. Certainly it is a step in the right direction. My
analysis of the Justice Department's bill as contrasted with the provi-
sions of S. 2216 and H.R. 5615 leads me to believe that the latter two
bills afford a more useful remedy in this kind of situation.
Senator CHAFEE. As you know, the Justice Department's bill is now
the administration's bill supported by the CIA itself.
Mr. BLAKE. I understand that, sir.
Senator CHAFES. So that gives it a powerful push.
Mr. WARNER. Of course, it does.
Senator CHAFES. I think there will probably be some tendency in
the committee to go with a bill that is acceptable to the administra-
tion, particularly the Justice Department. I am not sure that it will
but it gives it a tilt. Ambassador Carlucci indicated he supported it.
I was wondering how much trouble you found with it.
Mr. WARNER. Sir, again I have worked with Bob Keuch over the
years and I understand his views and the views of the Department
of Justice very well. It is just that I feel that the provisions, again,
of S. 2216 and H.R. 5615 have a slightly broader reach than the cur-
rent administration bill. Therefore I would rather see it. I would not
be adverse to seeing the Justice Department bill going on the books but
let us go as far as we can. I do not believe there are valid reasons for
not going the few steps further as in H.R. 5615 and S. 2216.
Senator CHAFEE. I do not want to pin you down too much but could
you give us exactly what you mean by "in going further?" What are
your specific references?
Mr. WARNER. I have in mind the second provision basically of H.R.
5615 and S. 2216 when whoever, with intent to impede our foreign
relations, publishes or discloses to unauthorized persons the name of
an individual under cover is subject then to criminal penalties without
ifs, ands and buts. All you have to do is establish intent to harm or
impede foreign intelligence activities of the United States.
I believe that is enough. What more do we want? If a man tells his
name because he wants to destroy the CIA, let him go to jail.
Senator CHAFEE. We want to bear in mind always the possible
around here.
Mr. WARNER. I agree, sir.
Senator CHAFES. We don't want to get bogged down in a long fight
that might make us come up with nothing. We are going to hear tomor-
row from the representatives of the press, the ACLU and so forth. I
will be interested in their reaction both to the Justice Department bill
and to S. 2216.
Thank you very much, gentlemen. We appreciate your taking the
time to give us your thoughts. They are very helpful. Thank you, Mr.
Chairman.
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Mr. BLAKE. Thank you, Mr. Chairman.
Senator GARN. Thank you very much.
John STOCKWELL. If you are prepared to proceed we will be happy
to hear your testimony at this time and then have you respond to
questions.
TESTIMONY OF JOHN STOCKWELL, AUTHOR OF "IN SEARCH OF
ENEMIES"
Mr. STOCKWELL. Thank you, Senator Garn.
Senator GARN. I assume you would like your full statement included
in the record.
Mr. STOCKWELL. I would like my full statement included in the
record. I must draw to your attention the fact that the CIA read my
statement because I am under injunction not to publish and it was
ruled that a statement to your committee was a publication. Therefore
on page 12 there are portions that are deleted by the CIA.
Senator GARN. We will be happy to include your full statement in
the record.
[The prepared statement of John Stockwell follows:]
PREPARED STATEMENT OF JOHN STOCKWELL BEFORE THE SENATE SELECT
COMMITTEE ON INTELLIGENCE
Senator Bayh, members of the select committee for intelligence. Gentlemen. I
would like to express my appreciation for having this opportunity to testify on a
bill which I consider to be of monumental importance to the free functioning of the
United States' system of government, and one that affects me personally.
First, let me introduce myself. I am John Stockwell, the son of an engineer
who worked for a chemical plant during World War II and then went to Africa to
build a hydro-electric plant for a mission hospital in the Belgian Congo, a man
who after retirement carried a sticker on the bumper of his car which read, `4I
support my local police." With the help of a Naval ROTC scholarship, I worked
my way through the University of Texas and took my commission in the Marine
Corps, serving 3 years active duty as a parachute reconnaissance officer.
Altogether I served 4 years in the Naval Reserves and 15 years in the Marine
Corps Reserves, until I was summarily dropped from the Marine Corps reserve
program when I left the CIA in March 1977, and criticized it publicly.
In 1964, I voted for Senator Barry Goldwater in the presidential election, and I
joined the Central Intelligence Agency as a clandestine field case officer. I was
fully convinced I was joining the elite of our foreign service and that our activ-
ities would serve to keep the world free from tyranny. For the next 121/2 years, I
served under cover for the CIA, running operations on four continents ; for six
of my seven CIA tours I managed other undercover agents. I was promoted regu-
larly at the head of my peer group and on December 18, 1975 I was awarded by
William Colby the CIA's Medal of Merit for my conduct during the collapse and
evacuation of South Vietnam.
However, during my 12 years of service I had become increasingly aware that
e CIA was not the elite foreign policy action arm I had thought it to be. In
three tours in Africa, where I rose to chief of station, I became convinced that
v?a were running operations for their own sakes, because it was our function as
case officers to run operations. What we did had little if anything to do with
United States' national security. Our activities were illegal, unnecessary, dis-
ruptive of the local political situations, and they discredited the legitimate diplo-
matic efforts of the State Department officers in the embassies from which we
worked.
I was not alone in my conclusions. Simultaneously the Macomber report, an
in-depth review of the State Department's effectiveness in managing our foreign
affairs was reaching the same conclusions about the CIA that I was. The
Macomber report concluded that the CIA's presence in Africa was not justi-
fied in terms of our foreign policy interests.
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53
In 1975, I was part of the CIA's dishonorable, cowardly, bungling evacuation
of South Vietnam in which it failed to produce reliable intelligence of what
was happening and it disowned any responsibility for the lives of three thou-
sand of its own agents.
Also in 1975, in Langley, Virginia, I served as chief of the CIA's Angola task
force and participated in the management of a secret war in which 10,000 lives
were lost. I watched first hand as the directors of the CIA and of its Angola
program willfully and deliberately planned the lies and cover stories that would
be used to thwart the efforts of the press in general and very specifically the
committees of the Senate and the House of Representatives to determine what
the CIA was doing in Angola. I watched CIA managers speak contemptuously
of the Senate, and heard case officers laugh about the things they had done to
thwart this committee's investigations.
At exactly the same time the CIA director, William Colby, was testifying to
the Senate Select Committee for Intelligence that "we have taken particular
caution to ensure that our operations are focused abroad and not at the United
States to influence the opinion of the American people about things from the
CIA's point of view" (Senate Select Committee Study, April 26, 1976, p. 129), the
Angola Task Force was doing exactly the opposite. With the full knowledge of the
National Security Council, we were funding and guiding paid propaganda agents
who were working in New York and Washington, D.C., planting fabricated
propaganda stories directly and indirectly in United States newspapers and
national television shows to present to the American public and the Members of
Congress a distorted view of the issues and factions in Angola.
By 1976, I was thoroughly skeptical of the worth of the CIA operations I
had been part of and I was troubled by the CIA's arrogance. I felt that its
secrecy was primarily intended to keep the American people and their elected
representatives from knowing the full and often shocking truth of what it was
doing, whereas it was callously insensitive to the victims of its overseas activi-
ties. It was indifferent to the security and safety of its own agents and activities
abroad. Behind the CIA's cover stories and the often altruistic rationales of its
operations lay numerous activities that could only be described as crimes against
humanity. Even pragmatically, its secret activities had in the long run been
counterproductive to our national security interests.
I felt that if the American people knew the full truth about what the Central
Intelligence Agency was doing in their name and with their tax dollars, then
and only then would they be qualified to judge whether or not they wanted their
Government to include such an organization, involved in such activities.
Again, I was hardly alone in my skepticism of the CIA. In 1975, the press and
the Congress focussed on the CIA's 27-year history. They probed and docu-
mented a seemingly endless succession of covert activities that ranged from
felonious, to violent, to depraved. Coups, assassination plots, massive programs
to deceive the American people, and even long term programs of experimenta-
tion on unwitting American citizens with debilitating, mind-altering drugs were
uncovered. And even as the Senate Select Committee for Intelligence was prob-
ing its past crimes, CIA directors were actually seeking to thwart its investi-
gations and they were lying to the Congress to cover up ongoing covert activities.
In the spring of 1977, I sincerely believed I had the constitutional right of
freedom of speech, the right to criticize my own Government. I believed I had
the responsibility to expose the CIA when I saw that it had set itself above
the law, the Congress, and the Constitution. On April 10, 1977, I published a
letter in the Washington Post documenting my reasons for leaving the CIA. In
June 1977, I testified for 5 days to two Senate committees, including this one,
reporting full detail of how they had been manipulated by the CIA during the
Angola War. In May 1978, I published a book, "In Search of Enemies," docu-
menting my observations.
I sincerely believed in the wisdom and determination of the Senate to re-
spond to its findings about the CIA, including my revelations, by subduing it
and bringing it firmly back in line with what is legally and morally acceptable
under the laws of this country.
In February 1980, the Supreme Court ruled in the case of U.S. v. Frank Snepp
that I had been wrong in presuming that my responsibility to the Constitution
and constitutional rights superseded the CIA's secret oaths and codes. The court
decided that it was proper for Frank Snepp to be punished by having to pay
to the Government all of the proceeds of his book, "Decent Interval." The ma-
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jority argued that its action was necessary in order to protect the confidenti-
ality essential to the functioning of our intelligence organizations, thereby en-
acting new law, usurping the powers of the Congress.
On March 10, the CIA sued me under the Snepp precedent, claiming the right
to the proceeds of my book. That its motive was purely political rather than
to protect sources or methods is proven by the fact that it never accused either
myself of Mr. Snepp of revealing any secrets. Its objective was to muzzle ue
and to intimidate other potential critics.
My astonishment and confusion were increased when I learned that instear,
of moving to punish the CIA for its past activities, instead of moving to enact
legislation that would protect the cherished rights of the American people, in.
stead of developing legislation to restore to Mr. Snepp and me our freedom of
speech and our rights to our just enrichment for our courage and career sac-
rifices to publish meaningful books about epic historic events, the Senate was
considering legislation that would give the CIA legal protection for a continu-
ation of its deplorable activities. It is as though I had gotten on the wrong
plane and landed in some other country than the one I had served and believed
in for nearly all of my adult life. It seemed to confirm the accusations of our
enemies that I had discounted as propagandistic, that we were in fact a callous
nation, hypocritical in our pretensions of highest regard for human rights and
civil liberties, and insensitive to the lives and needs of the rest of the world.
You are assembled today to hear testimony on a bill that would make it a
criminal offense to publish the identities of CIA secret agents or information
about secret activities that might spotlight the agents involved. This bill would
clearly infringe on the most cherished and unique American freedoms : Freedom
of speech and freedom of the press. In so doing it would restrict the very
freedoms for which our forefathers fought and died, and our fathers, and some
of ourselves, the basic principle of government that has made us unique among
major nations of the world.
This monumental sacrifice of our cherished freedom is not being considered
as a desperate measure to save the United States from some cataclysmic threat,
but rather to bolster an intelligence organization that has a long and continuing
record of arrogance, incompetence, cruelty and irresponsible activities.
There is no question in my mind that the founders and directors of the CIA
sincerely thought of themselves as honorable men. Their original objectives were
sincere and patriotic. They set out to protect this Nation from what they thought
to .be a grave international challenge. But somewhere along the course of years
their motives were corrupted by the nature of what they were doing, by their very
zeal, until they actually betrayed the principles they set out to defend. There
was little honorable about the activities discovered by this committee in 1975.
The CIA has failed dramatically in its primary objective, of stopping inter-
national communism. In 1947, when the CIA was founded, there were perhaps
two countries whose governments were based on Marxist ideologies. Today
there are 30 or 40 and country after country continues to turn to Marxism for
relief from the dictatorships and brutal, oppressive police forces the CIA has
installed, supported. and trained.
In the Hoover Commission report of 1954, the CIA's credo was enunciated,
that the United States must duplicate the activities of our enemies (the KGB),
that it must : "learn to subvert, sabotage and destroy our enemies by more clever,
more sophisticated and more effective methods * * *" Toward that objective, the
CIA has succeeded. It has persuaded much of the world that, whatever we may
proclaim about human rights, the United States in fact regularly engages in ac-
tivities as brutal and subversive as the Soviet Union. The United States' credi-
bility as the true leader the peace, democracy and human rights is vastly di-
minished from 1947, because of the CIA's activities.
The resentment and hostility that is currently directed toward the United
States in nearly every corner of the world is well deserved because of the CIA's
bloody, secret operations. It has engineered and sponsored violent enterprises
in dozens of countries. The toll of victims, people killed as a direct result of those
activities, exceeds 300,000. The indirect victims, people who died in situations
that had escalated from CIA covert operations in Vietnam. Cambodia, Laos,
would be counted in the millions. More tragic yet, the 300,000 dead include a
trivial number of enemies of the United States-perhaps a dozen KGB officers,
possibly 2 or 3 percent Communist part cadres. The rest were people : Vietnamese.
Cambodians, Kurds, Angolans, who had the misfortune of being caught in the
CIA's line of fire.
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And yet, incredibly, this committee is now considering a bill that would reward
the CIA for its brutality, incompetence, and violation of American law by giving
it unprecedented license for its operatives, at the expense of our unique and
cherished liberties.
The KGB and international communism have never succeeded much in their as-
saults on the United States and its envied way of life, but the CIA and its covert
actions have dragged us into major wars, the first military defeat in our history,
and a series of policy debacles that have included Chile, the Bay of Pigs, Iran,
Angola, Brazil, Indonesia ... the list is almost endless. And now, in these hear-
ings, this country is threatened with the abrogation of our most basic and cher-
ished freedoms, not because of anything the KGB has done, but on behalf of the
CIA.
On a recent television show the CIA Director, Stansfield Turner, referred to
individuals who had exercised their freedom of speech to criticize the CIA as
"traitors." He made an impassioned plea for a law-this bill we are discussing
today-to protect the identities of his agents. In the same breath he admonished
that in the Soviet Union such people (as his traitors) would never be permitted
to do the things they had done. Who. I ask you, is the traitor to the American
way of government?
Admiral Turner and Deputy CIA Director Frank Carlucci like to point out
that in other countries, England and France, a citizen would never be permitted
to publish expose's of the secret police. This is exactly the point that makes the
United States different than those countries. We control our police forces and
not vice versa. The French SDECE and surete have monstrous reputations for
brutality, kidnapping and killing private citizens with immunity, and censor-
ship of the press. It is difficult to have a private conversation with a British
journalist without their bringing up stories of reprehensible activities of British
Government officials against the people that go unpublished because of their
official secrets act. If Admiral Turner and Mr. Carlucci are uncomfortable with
the American way, perhaps they would like to emigrate to England or France
or Russia where they would find protection for the things they want to do out
of sight of public.scrutiny.
By curtailing the freedom of the press, the bill would seriously jeopardize
the delicate balances of power and healthy controls on which our system of
government depends. Had it been in existence 6 years ago, Woodward and Bern-
stein would not have been able to bring out the Watergate revelations because
they would have pinpointed the identities of secret agents. Frank Snepp would
never have been able to publish his book, nor I mine. Of course, the CIA would
have preferred that we not be permitted to publish such critical books-freedom
of speech is the anathema of a secret police-but these books contributed im-
portant knowledge about recent events in Southeast Asia and Africa, events
that affected the lives of thousands of Americans in myriad personal and profes-
sional ways. It is a constitutional right of the American people to have access
to such information. However, rather than adjust to the American system, the
CIA has instead exercized its enormous leverage and power to punish Frank
Snepp, me, Victor Marchetti, and Philip Agee, and to gain support for the bill
you are now considering.
I personally have chosen not to publish CIA officers' names simply to expose
them. However, on June 16 two individuals associated with the Space Research
Agency were sentenced to jail for the illegal sale of arms to South Africa. They
had been intially exposed by journalists, then investigated by U.S. Customs
Officers. I cooperated with those investigations but if the bill had been in ex-
istence, I would not have been able to do so and the crime might have gone
unpunished.
The implications of this bill are mind boggling. For example, if a citizen were
to learn of CIA involvement in something monstrous, say a plot to kill a presi-
dent or drug/sex experimentation on American citizens, he might be unable
to go public with the information without risking indictment and a jail sentence.
Moreover, the objective of the bill is clearly not to protect the safety of secret
agents as its proponents claim, but rather to gain an important weapon for
the CIA to use in silencing its critics in its domestic fight for existence.
In fact, the CIA itself is flagrantly careless of the identities of its own agents
and the very principle of cover is routinely accepted by people inside the CIA
as a superficial mechanism. Their agents are widely and well known in the com-
munities in which they live and function to be CIA. This dates back to experi-
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ences of Allen Dulles in World War II when he found it advantageous to be
widely known to have intelligence connections (see p. 7, "The Craft of Intelli-
gence." Allen Dulles). Since then CIA directors have annually toured the world,
holding regional meetings in hotels with case officers that were much like public
sales conferences. [Deleted.] In Kinshosa the Chiefs of Stations traditionally
required all members of their station to attend cocktail parties that were given
for the host government police officials. In Rome, both official cover and non-
official cover officers openly met with well-known CIA officers. [Deleted.] In
Vietnam, CIA officers up country, drove green Jeeps; in Saigon, they drove
yellow Datsuns with sequential license plates. In the real world of overseas
communities it can never be otherwise as our own embassies' local employees
and members of the diplomatic communities watch our operatives come and go,
Year after year.
This disregard of cover was tolerated because it posed no serious hazard
to CIA operatives' lives or their ability to function as case officers. In its 30-
year history, the CIA has had three dozen officers die violent deaths in the line
of duty. This is fewer than the State Department lost to assassinations and
kidnappings, and it is a remarkably small number considering the hot war
situations, especially in Southeast Asia, in which thousands of CIA officers func-
tioned freely. Well over 1,000 CIA officers' names have been published in recent
years, and not one has been killed as a result. The CIA made much out of the
death of its Chief of Station, Richard Welch, in Athens, December 19, 1975.
They even used assassination to attack and discredit this committee's hearings
that were being conducted at that time. However, the facts are now clear : Welch
was killed because he was flagrantly and widely known to be CIA and because
the CIA was resented for is subversive activities in the Mediterranean and not
because his name had been published in a local newspaper.
The victims of CIA activities nearly always know they are under CIA as-
sault-but because of the might and strength of the United States they are
often helpless to do much about it, and the CIA rarely worries much about their
knowledge.
However, the CIA puts an enormous amount of energy into deceiving, prop-
agandizing and manipulating the people who can stop its depradations, namely
the American people and their elected representatives. For example, the CIA's
prolonged wars against China and Cuba, its 7-year covert operation in Vietnam
that dragged us into that war, were carefully shielded from public awareness
at home, while massive propaganda campaigns were waged to incite the Ameri-
can people to anger against the Chinese, Cubans, and Vietnamese.
The bottom line for all arguments defending the CIA seems to be that its
clandestine operations are essential to our national security; therefore it must
be coddled, forgiven everything, and protected, if necessary by making a radical
change in our cherished constitutionally guaranteed freedoms. The now popular
argument that modern times are more dangerous and threatening than ever be-
fore, therefore dictating the absolute necessity at any price of keeping the CIA
In action and protecting its secrets, is specious. It is only to say that we have
less courage and determination than our forefathers did when they saw our
capital sacked by the British in 1812, or faced the Kaiser and then Hitler,
without signing away our unique constitutional heritage.
And a system of government that depends on such a brutal organization for
its survival may have lost its moral right to exist and function. This is equally
true of the United States as it was of Nazi Germany with its Gestapo, Stalinist
Russia with the KGB, or Pol Pot's regime in Cambodia.
However, I personally do not believe it to be true that the CIA's covert
activities are essential to our existence. To the contrary, had the CIA never
existed, had the United States stubbornly and courageously restrained from
emulating the KGB and sincerely committed itself to the advancement of democ-
racy, peace, human rights, and open commerce, there is little doubt that the
nation would be stronger today, our credibility in the international forum would
be greater, and the world that is now teeming with bitter conflict would be a
safer place in which to live and function.
We must never yield our cherished freedoms to the CIA. If it or any other
organization cannot adapt to the American system of government, then it and
not the system must be modified or even abolished.
Gentlemen, it is your sacred responsibility to reject this bill. Take whatever
measures are necessary to protect the American people and the less fortunate
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people of the world from the depradations of such an organization. Reject this
bill and exercise your responsibility to defend our cherished system of govern-
ment of, by and for the people.
Senator CHAFEE. Mr. Stockwell, it will, be necessary to keep that
microphone close there. It is a little hard to hear in here.
Mr. STOCKWELL. Senator Chafee and members of the Select Com-
mittee on Intelligence, I want to express my appreciation for being
able to come and talk to you about this bill that I think we all agree
is of great importance. It is one that indirectly affects me perhaps
more than some other people who are testifying. It is called in the
press sometimes the Agee bill.
I have in common with Phil Agee that I quit the Government, quit
the CIA and published a book without prior review. The difference
between me and Agee is that I have chosen not to reveal names of
agents and he has, and this is a significant difference. So perhaps the
bill is not aimed directly at me.
Nevertheless I am greatly concerned about this bill for the license
it will give CIA operatives and the degree to which it would prevent
what I consider to be the very healthy and constitutionally guaranteed
function of journalists and citizens to investigate what their officials
are doing. Obviously if the bill had been in existence, for example, 6
years ago, Messrs. Woodward and Bernstein would not have been able
to reveal the Watergate revelations without committing a crime.
Senator CHAFEE. I do not mean to interrupt. You have to substan-
tiate that a good deal more than just giving the statement. I would not
want the record to show that the lack of interruption indicates assent
in anyway on the part of this committee to that statement.
Mr. STOCKWELL. Certainly.
As I understand this bill, it would provide that it was a crime to
reveal an intelligence agent's name or information that would pin-
point agents' identities. Clearly the Woodward and Bernstein revela-
tions revealed activities that had been done by intelligence agents.
Senator Ganz. Certainly it would not have prevented them from
doing their story. Possibly it could have inhibited them from giving
names. That would hardly change the character of their story. But
please continue.
Mr. STOCKWELL. In my case, for example, my book would not have
been published under this law because you could not discuss the An-
gola situation without talking about the liberation leaders involved.
Senator GARN. You must understand that some of us don't think
your book should have been published.
Mr. STOCKWELL. On the other hand, I think my book presented a
detailed and accurate account of events that happened in a part of
the world that this Goverment claimed to be of national security im-
portance. There were thousands of Americans who were affected by it,
their professional lives, by events that happened in Angola and they
will be affected in the future by what happened in Angola.
I submit that the Constitution is quite clear on the matter of free-
dom of speech. I did have the right to write that book according to
the Constitution, not according to the CIA. I also submit that it is
the right of the American people to have access to such information
that does concern them.
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Senator CHAFEE. Why don't you go ahead with your statement ;
then we will question you when you are through.
Mr. STOCKWELL. My statement is 14 pages and, of course, you and
your staff can read it later. I think we can move directly to the point
that I can contribute that, that other people who are testifying cannot
contribute so much.
I was a clandestine case officer for 121/2 years. I lived under cover.
I did CIA operation on four continents. For six of my seven tours, I
managed other case officers who were under cover and therefore I think
it is fair to say that I know how cover functions.
What I would like to suggest to you is that the entire mechanism of
cover is a great deal more superficial than you might realize. It is not
intended to be nor has anyone in CIA ever pretended that the 95 per-
cent of its officers are, in fact, safely and completely covered when
they go overseas. They live and work mostly out of embassies in over-
seas posts but everyone around them knows they are CIA.
In most countries in the world where there is a large CIA presence,
they have a separate installation for the CIA people. In Vietnam,
for examplee, we were the Office of the Special Assistants. All CIA
operatives in the country drove green jeeps as opposed to gray and
other jeeps that other members drove. In Saigon we drove yellow
Datsuns. We had sequential license plates.
Allen Dulles wrote in his book "The Craft of Intelligence" that he
found it to be of advantage for people to know he was CIA. This was
the first thing my first chief of station overseas told me. He said :
Forget everything you learned in training about cover. You want people to
know you are CIA so that they will come to you, they will report to you, they
will know where to go with their information.
In this environment the CIA has functioned, and this is true in
every continent I served in, with the officers widely known to be CIA
and finding it to be an advantage to be known that you are CIA, and
very little effort to cover up CIA identity, playing to it rather than
against it.
The reason it functions this way and the CIA perimtted it to func-
tion this way is because it was not dangerous for CIA people to be
known as CIA and, in fact, I believe that the record is clear that there
have been a thousand or so CIA agents' names revealed in the last few
years, which is obviously very offensive to the CIA; but the fact is:
Not one of those agents has been killed as a result of having the name
revealed.
That, in sum, is what I came here to tell you because I do not believe
that you are having this situation, the superficiality of cover, explained
to you clearly by the proponents of this bill.
Senator GARN. Does that conclude your statement?
Mr. STOCKwELL. Yes, sir.
Senator GARN. Mr. Stockwell, it is a little bit difficult for me to
handle this because I have such disgust for your activities and your
book and your disloyalty to this country.
Mr. STOCKWELL. I cannot let anyone challenge my loyalty to this
country. I have been awarded medals. I have served in three wars for
this country. I was 19 years in the Marine Corps Reserve. I am sorry
I cannot let you challenge my loyalty to this country. The CIA is not
the United States of America.
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Senator GARN. I just did, Mr. Stockwell-you can deny it-I just
did challenge your loyalty to this country because of the harm that
you and the Snepps and others who, in the name of profit or whatever
else your motivation is, have done this country. That is the end result.
Deny it if you want.
I have my freedom of speech to say that I do think you have been
disloyal to this country, this Congress, the people of this country, and
you have harmed the legitimate intelligence-gathering activities of this
country.
I want to give you a little bit of background. Yes, you have been a
station chief. Yes, you were in the CIA for 12 years. But you totally
ignore that for the last 4 years there has been an oversight committee
that, I would suggest, knows a great deal more about the CIA in total
than you do because it is compartmentalized, and we do happen to
know and have had for 4 years knowledge of and approve all covert,
clandestine operations. They do not go on without the approval of
this committee.
Mr. STOCKWELL. Approve operations or are you briefed about op-
erations ?
Senator GARN. We have the right to express our disapproval.
Mr. STOCKWELL. You are not talking about stopping operations CIA
purposes to run. You can express disapproval but you cannot stop it.
Senator GARN. We can, and I will not get into circumstances of how
we can. You have a diverse committee. If you look at the names around
here, we are deliberately very broad-based from liberal Democrats to
conservative Republicans. There have been no leaks from this commit-
tee as far as I know. There has been considerable cooperation, and I
make the point of the diverse political interests from Pat Leahy to a
Jake Garn or Birch Bayh or Barry Goldwater and others.
I am proud of the job that we have done. We know every line item
now that didn't used to be known. There were problems in the CIA,
greatly magnified by the press and some of your colleagues as if that
was a majority of the CIA operation, defaming, hurting morale there.
But for the last 4 years there is intimate knowledge and oversight
by this committee and the one in the House. Yet your book was writ-
ten in 1977 or 1978, and I have read your book, and from a great deal
of testimony that you would never be privy to, and would not have
knowledge as a station chief or an individual operator, the exaggera-
tions in your book are incredible to where they are leading.
Now that I have gotten that off my chest, let me ask you some
questions.
Mr. STOCKWELL. OK, but I have to comment. I was station chief.
At one point I was also Chief of the Angola Task Force sitting on the
Subcommittee of the International Security Council and reading every
document that had to do with the Angola situation. I testified to this
in the Senate at length in 1977.
I would be delighted for you to have hearings about the Angola
operations. I conducted every detail in this book and I testified to this
committee, chapter and verse, cable and date.
Senator GARN. You stated in a telegram to this committee asking to
testify :
* * * Numerous CIA agents publish regular columns and articles and over 100
are currently writing their memoirs in various forms.
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I would suggest that that comment in your telegram even strengthens
the need for the legislation that you oppose. I doubt very much if you
seriously think that more than 100 former agents can write books and
talk about methods, sources and names without destroying the effec-
tiveness of the CIA and our legitimate intelligence gatherinactivities.
I am sure you are very well aware, as you talk about it in-your open-
ing statement, the Supreme Court in Snepp v. the United States, and
I quote :
The government has a compelling interest in protecting both the secrecy of
information important to our national security and the appearance of confiden-
tiality so essential to the effective operation of our foreign intelligence service.
Even in the absence of an express agreement the CIA could have acted to protect
substantial government interests by imposing reasonable restriction on employees'
activities that in other context might be protected by the First Amendment.
No one will fight harder for the first amendment than I and this
Supreme Court is hardly known as a conservative court with some of
the Justices there, but that is their statement. Yet you are here in the
cloak of the first amendment that you can say anything that your
conscience tells you to say without regard to the security of this coun-
try or the lives of some of your fellow former agents.
The Court held that if fiduciary relationship existed between CIA
employees and the agency, that when a former agent relies on his own
judgment about what information is detrimental, he may reveal infor-
mation that the CIA, with its broader understanding of what may
expose classified information, confidential sources could have been
identified and harmed.
Even in the dissenting opinion, the Court points out that the Gov-
ernment may regulate activities of its employees that would be pro-
tected by the first amendment in other contexts. I repeat : the Court
correctly points out that "the Government may regulate certain activi-
ties of its employees that would be protected by the first amendment
in other context."
With all your background and experience-are you a constitutional
lawyer?-you have decided you are the supreme law and you have
made this decision and the Supreme Court is wrong? Is that what you
are telling me?
Mr. STOCKWELL. I wrote my book before that ruling. At the time I
wrote that book, I really thought we had freedom of speech in this
country. I had been trained that way. The wars that your forefathers
and ours had fought for were for freedom of speech, freedom of the
press. You are supporting a bill curtailing that freedom. You are set-
ting up a few individuals, including yourself and 10 others, who will
decide whether or not the people have these freedoms.
You are doing this not to save this Nation from some great holocaust.
You are doing it on behalf of an intelligence organization whose activi-
ties in the past have ranged from the illegal to the depraved. Its record
does not justify this. The CIA is not our national security.
Its own self-proclaimed objective at the outset and throughout-
what they trained me for-was to counter international communism.
It has failed. In 1947 when it started, there were two countries that
were on marxism ideology. Now there are 30 or 40. It is not
succeeding.
Senator GARN. You attribute all that failure to the CIA?
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Mr. STOCKWELL. Clearly, it has failed.
Senator GARN. It has nothing to do with the Soviet ideology, KGB,
the Communist stages in Cuba?
Mr. STOCKWELL. Country after country is turning to marxism today
for support to free themselves from dictatorship that has been set up
by the CIA. Mind you, as Mr. Colby has said in criticizing me
Senator GARN. You mean that is why they are turning to marxism?
They are just sitting back there benignly waiting for these things to
fall in their lap and there is no subversion? You must know of the
KGB operations in this country alone, the incredible numbers of agents
within this country and their subversive activities. Why don't you
write a book about what you know about them?
Mr. STOCKWELL. Because I was not a specialist on the Soviet Union
but I was a specialist in CIA activities.
Senator GARN. You seem to be an apologist for them.
Mr. STOCKWELL. I never apologized for the KGB. I have criticized
the CIA. The CIA has killed in its covert activities over 300,000 people
in the Third World and not 12 of them, perhaps 12 of them, were KGB
officers and 1 or 2 percent Communist-add it up from the Senate
committees' own revelation.
You add up the Kurds, the Iranians, not to mention the Vietnamese
killed under the Phoenix program and the Chileans and Laotians and
Thai. You can get easily 300,000. Those are the direct victims killed
in CIA activities.
Senator GARN. I find that an incredibly ridiculous statement that
you can attribute that loss of life to CIA operations.
Mr. STOCKWELL. What would you attribute the dead bodies to? It is
activities like Angola where the CIA escalated the fight and there were
10,000 people killed and we did not have a serious national security
interest there. The CIA lied to this committee to cover it up. This
committee did nothing about those lies. The people went on being
killed.
Senator GARN. What an incredible distortion in your mind of the
fact of who started things in Angola and Vietnam.
Mr. STOCKWELL. That is the CIA chronology of events before I
joined that program.
Senator GARN. Mr. Stockwell, I listened to you. Please be quiet while
I say what I want to say. Look at what has happened. I am sure you
must really be proud of the millions of Cambodians starving to death
since Vietnam fell. What has happened in the last 2 days, going into
Thailand and overrunning refugee villages?
I am sure you can justify in some way 40,000 Cuban stooges in Africa
killing black Africans. Come on, let us be realistic. I repeat, you are
disloyal to this country.
Mr. STOCKWELL. I cannot permit that statement to go unchallenged.
My record stands on its own. I have never defended the Vietnamese
activities in Cambodia and Thailand.
Senator GARN. I thank God that somebody like you has the right to
come and say these things, that we still have freedom of speech in this
country. Try it in Cuba. Try it in Russia.
Mr. STOCKWELL. Your objective is to make this country more like
Russia in terms of freedom of speech?
Senator GARN. Don't be asinine.
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Mr. STOCKWELL. You are proposing a bill for it to be illegal for me
to say what I have said.
Senator GARN. You can write the book. The issue is whether you dis-
closed classified information and endangered people's lives.
Mr. STOCKWELL. No one is accusing me of disclosing classified infor-
mation. The CIA has never accused me of that. The war was over and
done when I wrote this book.
Senator GARN. You describe yourself and others like you as whistle-
blowers. Yet I think you defend the right to do what in time of war
would be considered treason. Mr. Stockwell, at this point, I probably
had better stop and let Senator Chaffee take over because I am so biased
against you and others like you and my disgust level is so high at your
disloyalty that it is probably better that I stop at this point and turn
it over to Senator Chafee.
Mr. STOCKWELL. OK, but I have to answer one question you raised.
That is about this committee's role in relation to the CIA. You noticed
I asked for the opportunity to come and testify to this Senate commit-
tee about a bill that affects this Nation's freedom of speech.
Everyone is a witness that I have been castigated by one of the mem-
bers of this committee. In 1977, I came and testified in an executive
session of this committee for 5 days giving great detail about how this
committee had been lied to, to cover up an operation in Africa.
I was guaranteed at the outset of that hearing that my testimony
would be secret, that it would be held secret from the CIA. I did not
ask for this protection but it was given to me. I was told by the com-
mittee that it would have no credibility at all if someone could not
come and testify to this committee and be protected from CIA's knowl-
edge of that testimony.
My testimony was transcribed and a copy was delivered by the com-
mittee to the CIA before I saw it myself.
Senator GARN. Senator Chafee?
Senator CHAFEE. Mr. Stockwell, the reason we are here today is to
discuss legislation that we are proposing and the position you have
taken is against that legislation. As you know, the legislation is di-
rected to protect the identities of agents for the CIA, the FBI, and the
Drug Administration.
Let us set aside those others and let us concentrate on the CIA.
As I understand your testimony, you are saying there is no need
for such legislation because, first, you say the CIA itself makes no
effort to provide cover for its agents and you recount that they drive
around in different colored jeeps and they hold gatherings in hotels
that are like sales meeting.
Now your testimony flies exactly counter to that that has been
given by the Deputy Director of CIA. Now what do you say to that?
Mr. STOCKWELL. Mr. Carlucci never served as a case officer in his life.
He was the Ambassador in Portugal at a time when our station in Por-
tugal included a few officers who were all well known to be CIA. He is
familiar with at least the general situation.
I do not know where he gets his information but I have functioned
for years in CIA stations with cover. I have no problem in swearing
to my statement and, if you would like, to take you to the field and show
you the truth of what I am saying.
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Senator CHAFEE. Indeed I have been in the field and visited a num-
ber of stations where the question of cover was discussed in some de-
tail. Cover was sought and given and cherished indeed by those agents
operating there. Those are 10 countries that I have been in that I have
observed that.
What you are doing today is giving us evidence that is quite con-
trary to the evidence by the former head of the Association of Intel-
ligence Officers, wl_om you just heard, that of Mr. Carlucci, that of sta-
tion chiefs that we have met. We have had long hearings dealing with
the subject of cover in which station chiefs have come in, retired, active,
and all of them have stressed not only the need for better cover but the
need to keep the cover that they currently have available to them.
Now you seem to be taking an absolutely different tangent.
Mr. STOCKWELL. Yes. You have to note that my role as a whistle
blower is trying to tell the truth on issues that I have seen the CIA
elaborately mislead the Senate as well as the public on. The great
weakness in your effort, and obviously I accept the fact that you are
all conscientiously trying to function as oversight of the CIA, but the
great weakness in your effort is that you only know what you are told
by CIA briefers.
The CIA people come to you and say :
This is what we are doing; this is what we propose to do. Here are some
papers and files that prove that. You do not go into the buildings and get down
on the desks-
Senator CHAFEE. That really is not so. As I pointed out to you, I
do not know what you can do more in the field than to meet with a
station chief, meet with his operatives, meet with those who are right
there on the firing line, as I have done, as Senator Garn has done.
Mr. STOCKWELL. You sit with them probably in their home and they
tell you the party line of what cover is supposed to be just like they
tell young case officers in training. It is not that way. You have been
deceived in those conversations.
Senator CHAFEE. Is this a master plot that involves the junior op-
eratives, senior operatives, station chiefs, wherever they are all over
the world?
Mr. STOCKWELL. And who are the people you have named who will
stand up while they are working on their careers and say : "Senator,
this cover does not work; every one in town knows who I am?" It is
not a plot. It is the sense that it is a party line. It is part of the role they
play.
Senator CHAFEE. It is not quite that either, Mr. Stockwell, because
it is not what they say that they are not claiming that the cover does
work. As a matter of fact, what they are saying is that :
* * * We have great trouble with cover and why can we not have A, B, C, and
D changes in the law to give some protection to us or to aid us?
So, it is not that they are standing up and spouting any party line
saying :
We find cover is a magnificent thing and we would like to go around with
capes and black coats and sneak around corners.
They are not saying that at all. They are saying :
We have a difficult job to do and that we need greater cover and greater pro-
tection than we currently have.
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They are not at all saying what you are saying.
Mr. STOCKWELL. I was trying to answer your question. You were
telling me what they had said and I was trying to answer your
question.
Senator CHAFEE. Yes; you are suggesting, as I gather it, that they
are all in some kind of cabal together. Yet I have not found that at all.
Mr. STOCKWELL. If they have been telling you that their cover works,
and they are conscientious about their cover is true, I was trying to
answer the question, if they have been telling you that the cover is very
superficial and it does not work and it cannot work the way the CIA
operates overseas, then I would agree with them.
Setnator CHAFEE. They are not saying that it cannot work. They
are saying that they have great difficulty making it work and unani-
mously they deplore the publication of a Covert Action Bulletin. What
do you say about that? Do you think it is helpful?
Mr. STOCKWELL. That certainly is highly offensive to them but my
understanding is that that information in the Covert Action Bulletin
is overt. The people who publish it are not inside the CIA. They are
getting that information from the Library of Congress.
The CIA is that careless of its own cover. I personally do not reveal
names. I do not see the point of revealing names. I make that clear
in that book. I think on the other hand, the Constitution until it is
amended does permit Mr. Snepp and crew to republish public infor-
mation.
Senator CHAFEE. Yes; but the very law that we are dealing with
here, working on, would take care of this situation. That is what we
are trying to do.
Mr. STOCKWELL. How would it, sir?
Senator CHAFEE. It would make the publication by those who have
been former employees of the CIA or those who are working under
them. using the skills that they have been taught, would make it pun-
ishable and punishable very severely. That is what we are trying to do.
Mr. STOCKWELL. It would also make the press punishable for pub-
lishing.
Senator CHAFEE. We are going to deal with that tomorrow. We
have very able representation from the press in the form of the Ameri-
can Civil Liberties Union, in the form of those who are going to
testify-don't worry about their views being represented.
Mr. STOCKWELL. No; but it does affect me directly because I have
published and I am also a writer now.
Senator CHAFEE. The press will be represented by attorneys, a, host
of attorneys. What we are trying to do is prevent the disclosure of
names of agents. That is what we are dealing with.
Now, you can advance one assumption that it does not make any
difference to tell everybody who is out there, that it does not affect
their ability to do their mission, nor does it affect the safety of the
allies? Is that what you are saying?
Mr. STOCKWELL. Yes; for 30 years they have worked with their
identities flagrantly widely known in the communities where they
were doing their activities, and there has been a trivial number of
CIA agents killed over those years, less than were assassinated in the
State Department, for example.
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Senator CHATEE. I am sure the person whose life was taken did not
consider it trivial, or Mr. Welch's widow.
Mr. STOCKWELL. Mr. Welch was not killed because his name was
revealed. He was killed because of the CIA sloppy security practices
in the cover of their own agents.
Senator CHAFEE. In the what?
Mr. STOCKWELL. Mr. Welch was killed because his identity was
already widely known in Athens, and I have to stop there because we
get into information that the CIA censored from my statement but
he was not killed because his name was published in a newspaper. That
has been clearly thoroughly documented.
Senator CHAFEE. You seem to be saying two different things. One,
you are saying it does not make any difference. On the other hand,
Mr. Welch was killed because his identity was widely known.
Mr. STOCKWELL. I had said a trivial number was killed over the
years in this dangerous business. Mind you, they were killing 300,000
people and 30 CIA officers were killed in the process.
Senator CHHAFEE. There is a mission to be accomplished. Either we
believe that the CIA has an important mission in the total national
security picture of this country or if you do not believe that, then there
is no need to have legislation such as this. Indeed there is no need to
have a CIA.
Mr. STOCKWELL. You have come close to my position.
Senator CHAFEE. You are not close to my position.
Mr. STOCKWELL. You said, I believe, the CIA is not essential to our
national security.
Senator CHAFEE. If you start with that presumption obviously there
is no need for legislation. Indeed there is no need for the CIA. Is that
your position?
Mr. STOCKWELL. My position is that the CIA is not essential to our
national security. It has done some good. It has done a lot of bad.
Senator CHAFEE. If it is not essential for our national security, is it
necessary to have it?
Mr. STOCKWELL. I think there is a need to have a better analytical
section than we now have. I think the clandestine services have gotten
us into a long chain of foreign policy debacles and have rarely pulled
our chestnuts out of the fire.
Senator CHAFEE. It may be your view that such debacles are indige-
nous to the system. Is that your view?
Mr. STOCKWELL. Not necessarily. Secrecy does not work very well in
foreign affairs, in covert action. It does not remain secret. People get
killed, the world is angry, the United States is discredited. The United
States has done far more damage than the KGB ever does. It has en-
gendered the first military defeat in our history.
There is the matter of Iran, Chile, Angola, situation after situation,
that the CIA has dragged us in, not the KGB, and the Nation has been
stuck with it afterward. Certainly if any objective persons from
another planet read the Church committee report in 1976, the only
conclusion that you could reach is that this organization has been a
monstrous liability.
Any basic historic American position of "show me," reading its
track record, would say what on Earth do we need this thing for? In-
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stead of cutting it down, restricting it, curtailing it, instead of taking
action to protect the American people from the crimes they committed
and truly some of those crimes were depraved, there is no other word
for them, I now see that the Senate is considering legislation that
would give them legal protection so that if it happens in the future--
Senator CHAFEE. Let us just stick to the legislation. If you advance
the assumption, as obviously you do, that the CIA is a liability to the
Nation, then any statement you make as regards disclosure of iden-
tities, whatever it is, naturally follows because you are opposed to the
whole thing. Is that right?
Mr. STOCKWELL. I am opposed to the clandestine activities, covert
aciton and covert HUMINT, human intelligence, spies.
Senator CHAFEE. You would have a few analysts in Langley ana-
lyzing whatever information was picked up through overt sources? Is
that what you are saying?
Mr. STOCKWELL. 1 would have a lot of analysts in Langley, if neces-
sary, the best in the world, with less secrecy. Secrecy where it is neces-
sary but less secrecy so there would be no interchange with the rest of
the society that knows that is going on and I would have operatives
only in countries where there was truly national security interests at
stake, Moscow and places like that, and not in every one of the little
African countries where there are no secrets to be gathered.
Senator CHAFEE. Since you are opposed to any clandestine activities,
all the disclosures in this booklet would be perfectly all right in your
judgment?
Mr. STOCKWELL. If the CIA would cut down what its original inten-
tion was when the National Security Act was passed you wouldn't
have 5,000 operatives in every corner of the world compulsively run-
ning operations because that is their function.
Senator CHAFEE. I can see very clearly that we are operating from
two very different assumptions. Your assumption leads you to assert a
conclusion so that you are unable to comment constructively it seems
to me and lend us much assistance on this legislation because you are
opposed to the whole idea.
Mr. STOCKWELL. I believe that you are making a very poor deal if
you trade freedom of speech or freedom of the press for the clandestine
service of the CIA.
Senator CHAFEE. I think freedom of the press will be protected. I
think also we can work it out so that there will be protection of the
agents against disclosure of names and identities of those who are
serving in stations abroad in a job that we have sent them to do.
I do not know whether you listened to the statement of Mr. Blake
or not but it seems to me Mr. Blake, who is president of the Association
of Former Intelligence Officers, made a very clear point. If the Nation
is going to send people on these missions, then it behooves us to do
everything we can to protect them and to permit them to do their job
in the safest manner possible. That is our obligation here.
Thank you.
Mr. STOCKWELL. If the Nation is going to send the CIA to kill as
many people as it has, certainly the fault lies with our policies, the
basic policies. I really wonder if the Nation sends these people out to
run drug mind control experiments on the American people. Did the
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Nation send them out to open your mail, send them out to get involved
in every assassination they could cook up? I do agree with Mr. Blake.
Senator CHAFEE. I do not want to replay old charges. I have served
on this committee now for 3 years, Senator Garn I guess for 5, I do not
know. I am not going to take responsibility for whatever is alleged to
have taken place in years past.
It is our duty to provide oversight to this agency and we will fulfill
our duty.
Mr. STOCKWELL. What about your duty to the American people, to
protect the American people's constitutional rights?
Senator CHAFEE. One of the oaths we take is to uphold the Constitu-
tion of this Nation. Amongst that is to provide for the defense of the
American people.
That completes my questioning, Mr. Chairman.
Senator GAxx. Mr. Stockwell, I said at the outset
Mr. STOCKWELL. If you are going to challenge my loyalty to the
country again, I do not know what more can be said.
Senator GARN. Mr. Stockwell, I was speaking about something else.
At the outset of my remarks I said that one of the reasons I came on
this committee was* because I was concerned about some of the abuses.
There is no doubt that some of the things you talk about occurred, the
drugs, that sort of thing, most of them 12, 13, and 14 years ago.
For a period of time day after day after day there were big exposes
in the press, the average American thinking they were occurring now,
when in fact they had occurred years before and they had stopped. I
went deeply into that when I first came on this committee, as did the
rest of the committee, to find out what those were, when they occured,
whether they were still occuring or not.
What we found is that some of them did occur. Most of them were
many, many years before. They were certainly not authorized and they
were certainly an extremely small part of the operations blown out of
all proportion as to the number of quantity that was going on.
The vast majority of your colleagues were not involved in those sorts
of things at all. Good law-abiding American citizens were not violating
laws. That is the thing that bothers me I suppose the most about your
testimony is you choose an incident and blow it up into a huge tiling
that this is all the CIA does. That is a terrible indictment of thousands
of loyal Americans who are serving our country.
Mr. STOCKWELL. The first thing you mentioned I believe was the
300,000 people who were killed that were not enemies of this country.
They were people who were caught in the crossfire of the CIA-KGB
fighting. But it did not advance our national security interests to kill
all these people.
This may not be important to very many Americans but I have lived'
overseas over half my life
Senator GARN. I am not going to get into the 300,000 argument be-
cause I think it is ridiculous to try to attribute that to the CIA.
Mr. STOCKWELL. You assume responsibility for what your own re-
ports disclose, a lot of dead people.
Senator GARN. In your testimony and in your book you seem to have
great respect for the Cuban system of education under Castro. You
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talk about how impressed you were with the Angola student's morale
and enthusiasm while attending school at the Isle of Youths in Cuba.
Mr. STOCKWELL. In my book or in my testimony?
Senator GARN. One is in the New York Times article you wrote last
November 1979. You note the Cubans are proud of their national school
system. This is when you are replying to Mr. Saffire. You suggest he
fly to Cuba and see for himself the glories of Cuban education.
. You presented sort of as if it were back in the old Tom Brown school
days. Do you really believe the Cuban education of foreign students
is purely altruistic or is it political indoctrination of future revolu-
tionaries and terrorists?
Mr. STOCKWELL. I do not have a copy in front of me but I urged us
to compete. Instead of sitting here and throwing rocks at what they
are trying to do, which is obviously in their interest, why don't we
open up schools for African children and bring them over here and
be competitive in this field?
Mr. Saffire published blatantly untrue statements. I was trying to
get the truth out and make the point, instead of throwing rocks why
don't we compete?
Senator GARN. Mr. Stockwell, this country has provided a greater
standard of living, more freedom and opportunities for our citizens
than any country that has ever existed on the face of the Earth. At
the same time we have shared over $300 billion of our money with
other countries since the end of World War II.
We rebuilt our enemies in Germany and Japan. We are having diffi-
culty with that today because they have more modern steel plants and
automobile plants and so on. We have given more aid in Africa and
in Central and South America than all the other countries put to-
gether.
I would suggest that we are way ahead of the game and have noth-
ing to apologize for for our aid and our help to universities, through
the Peace Corps and all we have done for more than 30 years. There
has never been any nation on the face of the Earth that has matched
that.
Now we have to hear you talk about competing with Mr. Castro in
providing schools? We are providing more schools, more medication
and more health care--
Mr. STOCKWELL. I am glad you brought this issue up. I do not be-
lieve we have any schools here that are the equivalent of what the
Cubans have opened for African students to come over at a subcollege
age and be grouped together and be educated. Cuba is a very small
country. It has a small and poor education system but they have done
pretty well with it.
Senator GARN. I would hope we do not have schools like they have
in Cuba for the indoctrination and the way they are training. I am
asking you a question that I am puzzled about.
There was also a reply, and quoting from your book about how
Savimbi was such a good man by any standard, a living legend among
his people and a throwback to the great tribal leaders of afar.
Stockwell called him an Angolan patriot still committed to negotiation, com-
promise, free elections as a means of resolving the Angola conflict and achieving
independence for his country.
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I am puzzled about that because then in your November 22, 1979,
article "Savimbi has no ideology. He believes in nothing beyond his
own selfish ambitions. Fighting has been his way of life," and on and
on and on.
Mr. STOCKWELL. Yes. There was a few years difference in the time
4 between when those two things were written. Savimbi showed himself
to be more and more selfish and personally ambitious and much less a
patriot. The point I was trying to reveal even in my book was to show
how a sympathetic individual was set up by the CIA and encouraged
to fight and then dropped so that more people were killed for nothing.
This is the same pattern as in Hungary, as in Cuba, as occurred in
Iran. Go in with the Vietnamese people, go in and encourage them to
fight. More people are killed and then at crunch time back out and
leave them hanging and let them die.
Senator GARN. There is a good deal of evidence that a lot of these
African children are being taken by force, not of their own free will,
from their parents, to be educated in Cuba. As Senator Chafee pointed
out, we are getting away from the subject. I agree completely you have
nothing to contribute to this particular piece of legislation and I di-
verted to some of these areas to show the inconsistency of some of
your statements, and we could go on, in your book there is a good deal
of contradiction.
Mr. STOCKWELL. I challenge you to debate my book publicly. You
bring your information and I will bring mine.
Senator GARN. I would be at a distinct disadvantage because I
would honor the oath I took about keeping secrets and being loyal to
my country where you would not be restrained by the same moral prin-
ciple.
Thank you very much for coming, Mr. Stockwell.
The hearing is recessed until 2 tomorrow afternoon.
[Whereupon, at 4:05 p.m., the committee was recessed until 2 p.m.,
Wednesday, June 25,1980.]
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INTELLIGENCE IDENTITIES PROTECTION
LEGISLATION
WEDNESDAY, JUNE 25, 1980
U.S. SENATE,
SELECT COMMITTEE ON INTELLIGENCE,
Washington, D.C.
The committee met at 2 p.m., pursuant to notice, in room 1202,
Dirksen Senate Office Building, Hon. Birch Bayh (chairman of the
committee) presiding.
Present : Senators Bayh, Garn, Chafee, and Durenberger.
Chairman BAYH. We will reconvene the committee meeting. We are
privileged to have this morning one of our distinguished colleagues
who has expressed a concern early on in this discussion over the need to
provide more security for those folks who are out there willing to lay
it on the line for the rest of the country to try to make the intelligence
system have the capacity to gather the necessary information, our
distinguished colleague from Texas, Senator Bentsen, who is one of
the busiest of our colleagues.
Nevertheless, he has taken time to pursue his concern and stress it
before us today.
Senator Bentsen, we appreciate your letting us know your thoughts
on this subject.
TESTIMONY OF HON. LLOYD BENTSEN, A U.S. SENATOR FROM
THE STATE OF TEXAS
Senator BENTSEN. Thank you, Mr. Chairman.
You are right, I was early on. I introduced a piece of legislation in
1975 and that was to punish former intelligence employees who in-
formed on the identity of current personnel. I am very pleased to be
before you and your committee to urge the early passage of that bill.
What we are seeing today with recent Soviet aggression, with dan-
ger and trouble spots around the world, clearly shows the needs for
a stronger intelligence capability. We have rooted out a lot of abuses
of the past and abuses that you and I certainly agree must never be
repeated. We have initiated certain safeguards and some very strong
congressional oversight.
Today we are discussing another important reform, one that will
enable our intelligence service to perform more effectively. Ever since
George Washington first sent American troops behind the British lines
we have understood the value of intelligence work. We need timely
and accurate information. We need the capacity to act on that infor-
mation. If we anticipate a crisis, then we are going to be better able
to cope with that crisis.
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We live in a dangerous world. We are facing a Soviet Union that
shows contempt for human rights or national sovereignty and for
international law.
It is vital that the identities of our intelligence people be protected.
They are performing dangerous missions : they are serving at great
risk and they undertake important tasks. The very anonymity of their
profession mandates that their work, which is often unheralded, their
failures are often criticized and their successes often are not known.
They accept a very serious responsibility. They have access to secret
and sensitive information. They know the names of officers who could
be killed if they were identified. They have knowledge of operations
that would be devastated if they were exposed. They deal with foreign
sources that can be deterred from giving them information by fear of
disloyalty or release.
Those involved have accepted a trust and they knew it when they
went in. Others have honored that trust to protect them with life and
death at stake. With the national interest in the balance they have
pledged to serve their country and to protect their colleagues. Those
who break that trust have committed a reckless and vicious crime.
In recent years a small band of renegade former intelligence em-
ployees have embarked on a crusade to destroy our intelligence serv-
ices. Let us be clear about what they are doing. They are not fighting
abuses. They are not fighting excesses. They are fighting the very idea
that we should have a secret intelligence service. They announced their
war against the CIA at the Youth Festival in Havana. Whether they
mean it or not, and they probably do, they serve the interest of those
who would murder thousands of the Afghanistan people.
They strengthen the hand of those who put. Dr. Sakharov under
House arrest. They gave practical assistance to those whose main world
goal is to destroy our way of life. They serve the cause of terrorists.
They share the aim of destroying our intelligence service. They serve
those whose goal is totalitarianism, whose method is Gulag, whose
policy is invasions, whose tactics include gunning down Afghanistan
schoolchildren.
Mr. Chairman, I do not known their true motives. They certainly
have not declared war against the Soviet KGB, nor have they publicly
stated the names of Soviet agents or attacked Soviet policy. The effect
of their actions is clear : To endanger the lives of American intelligence
people and to threaten our national security.
My bill is specifically aimed at those who have broken that trust.
It aims to punish former intelligence personnel who have violated
their basic obligation of protecting their colleagues and their nation.
My bill is targeted, it is narrow in its focus. My bill can pass tomorrow
on the Senate floor and be enacted almost immediately without delay.
It would serve as a message to friend and foe alike. It would be a
statement of support for loyal intelligence people. It would be a state-
ment of warning to the disloyal ands dishonorable. It would punish
those who have undertaken a responsibility and have violated that
responsibility. It would avoid the first amendment issues of broader
proposals, and because it does it can be passed and signed into law
in this Congress.
I sympathize with the views of those who would prosecute anyone
who publishes identities, including the press. Some information simply
has to be kept secret, including identities.
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There is something to be said for a broader bill. But you run right
into the problems of the concerns about the first amendment because
it is difficult to prove the identity to cause the damage that would
justify prosecution under that broader approach.
So I think we ought to move on this narrow approach. There is
an inherent friction between the needs to serve the maximum security
and the need to protect the first amendment. I frankly do not have
the answer but I do have some advice. We can get this bill passed and
we can move ahead. I introduced this bill in 1975. I do not want to see
us role this stone up the hill year after year, Congress after Congress,
only to have it rolled right back down again before we can act.
We can run the risk of endless delay in the search for perfection.
We can run the risk of endless inaction in another Congress without
enactment of an identities protection bill. My bill would give us more
than half a loaf and without the problems. It would punish the most
guilty and irresponsible people without the pitfalls of the broader
approach.
In recent years our intelligence service has had some pretty tough
days. We have seen abuses that must never be tolerated. We have seen
reforms that are unique among great nations. We can protect our
national security in a manner consistent with our national principles.
My bill is clearly, indisputably and unquestionably, consistent with
both. I think it ought to be enacted this year and I would urge this
committee to act promptly.
Chairman BAYH. Senator Bentsen, I think you make an extremely
strong case for the merits of the bill. I find myself in sympathy not
only with its purpose but the procedure. You describe the parameters
of the problem if you broaden the scope of the legislation. I appreciate
your interest.
I regret that it has taken so long to focus on this. But we are here
now and I appreciate your being here.
My distinguished colleague from Rhode Island.
Senator CHAFEE. Senator Bentsen, I would like to join in expressing
thanks to you for your long-time interest in this area. Some of us.
speaking personally anyway, have become more recently involved and
you have been at this, as you have indicated, since 1975.
I do not want to see us roll this stone up the hill year after year
only to see it roll back down before we can act. I do hope that we can
take some action this year. As you know, we have received a very opti-
mistic report yesterday from Congressman Bennett. He indicated that
he thought his legislation, which is akin to yours, would pass this
year. He gave a very optimistic prognosis.
I join with you in the hope that we can move something out of here
rather quickly and I appreciate your coming.
Senator BENTSEN. Thank you very much.
Chairman BAYH. Senator Durenberger?
Senator DURENBERGEB. If I may ask a couple questions, Senator.
There are several parts of your bill that differ from some of the
others. If I may just ask a couple of wide questions, I would appre-
ciate it. Your bill protects not only employees and agents of the CIA,
but also persons who have, I think, associated with the CIA. I am
wondering what your definition would be of the kinds of people who
would fit in that category, employees or agents of the Agency. It seems
like a kind of broad characterization.
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Senator BENTSEN. I would think that would be one where in the
committee report you would try to tighten it down. I think that is a
fair concern. What we are trying to do obviously is those who have
been in and taken an oath of loyalty and who have had access to all
of these names, that they incur that obligation and responsibility.
I would not object at all to the language being tightened in that
regard.
Senator DURENBERGER. The bill also covers only information which
is "specifically designated by an Executive order of the President as
requiring a specific degree of protection." Is that intended to be as
limiting as it appears it might be, or is there some specific reason for
using the Executive order by way of defining information?
Senator BENTSEN. Senator, I have been trying for 5 years to get a
bill passed and I have narrowly defined it for that purpose. I am
sympathetic to its being somewhat broader but I am also trying to
realize the realities of the objections that we have.
Senator DURENBERGER. Thank you very much.
Chairman BATH. Thank you very much, Senator Bentsen. We will
certainly keep you posted. We are close with you on this and we appre-
ciate your help this afternoon.
Senator BENTSEN. Thank you, Mr. Chairman.
Chairman BAYH. Our next witness is Floyd Abrams, counsel for the
New York Times, but I understand he is here in his own right and not
representing that newspaper today.
TESTIMONY OF FLOYD ABRAMS
Mr. ABRAMS. Mr. Chairman and members of the committee, I wish
to state, as the chairman has indicated, that I do appear on my own
behalf. I did represent the New York Times in the Pentagon Papers
case and have been active in litigations which have touched upon the
area about which I will testify today.
But my testimony is entirely personal and not on behalf of the Times
or any other client.
My own view is that the naming or listing of undercover intelligence
officers, agents, informants, and sources by any of their colleagues is
an outrage and that those who have engaged in such activities have
disgraced themselves and disserved both their colleagues and their
country.
I also appear as one who believes that covert intelligence operations
within proper bounds constitute one useful and significant function of
any nation's intelligence service. Indeed, I think it especially appro-
priate to reaffirm that proposition on this 30th anniversary of the
North Korean invasion of South Korea. Without covert intelligence
operations we would lose much of our ability to deter aggression before
it occurs.
I appear as well, however, as one who believes, as I am sure every
member of the committee believes, that in considering legislation in
this delicate area it is essential to adhere to the commands of the first
amendment, that legislatioin threatening to any degree freedom of
expression must be narrowly and not broadly drafted, that in areas
of doubt we must take the risks of freedom and not of repression.
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All that being said, I appear before you for the primary purpose of
urging upon you that any legislation in this area burdens, at least to
some extent, freedom of expression. It thus raises significant constitu-
tional questions.
The burden is least substantial and a determination of constitution-
ality most likely when two principles are borne in mind. The first is
that legislation making criminal the disclosure of information by
agents or former agents themselves is far more constitutionally de-
fensible than is legislation which makes criminal the publication by
third parties of in formation obtained by them.
` The second is that the narrower the definition of the information
which may not be disclosed, the people who may not disclose it and
the circumstances under which it may not be disclosed, the more
likely it is that a statute containing such a definition would be held
constitutional.
Put a bit more concretely and personally, I believe that narrowly
drafted legislation barring disclosure of certain information in this
area may and I believe should be adopted as regards disclosures by
former CIA employees or officials themselves; that such legislation
should not be adopted as regards recipients of such information; but
that any statute that is adopted must be, in the language of the Su-
preme Court just last Friday, "precisely drawn," certainly no more
expansively so "than necessary to further the state's interest. * * *"
With those principles, which I will attempt to flesh out during
my testimony, in mind I will turn to each piece of legislation under
consideration by the committee. I will concentrate most on S. 2216
and S. 2284 since my comments on those bills apply as well to the other
bills before you.
When I say I will address S. 2284, I would add that I did not have
before me when I prepared my statement, the testimony you had yes-
terday. So what I have to say about that is based upon previous testi-
mony of the CIA and the Department of Justice.
As regards S. 2216, as the committee is well aware, S. 2216 deals
with two categories of persons : The first is those who have or have had
"authorized access to classified information" (section 501(a)) ; the
second (section 501(b)) relates to all others. I will direct the major
thrust of my remarks to the second category although I will offer a
few suggestions at the conclusion of my statement about the first.
I believe section 501(b) is facially unconstitutional. On its face,
that section would permit the criminal prosecution of any newspaper,
broadcaster, publisher, author, journalist, or any other citizen who in
any way, and however innocently, learns the name or other facts con-
cerning the identity of any agent, informant or the like, that the
United States is attempting to keep secret and publishes or otherwise
discloses it.
That person and those entities under section 501 (b) may be charged
with a crime and sentenced to 1 year in prison and/or fined $5,000 so
long as a jury finds that such disclosure has been made and that the
intention or purpose of the disclosure was "to impair or impede the
foreign intelligence operation activities of the United States."
The effect of such a statute I believe would be startling and unprece-
dented. Under the terms of the statute when Frances Gary Powers was
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captured by the Russians for overflying their air space in a U-2, every
publication in the United States that published Mr. Powers' name
would have been subject to criminal prosecution under the statute
until the executive branch of the United States "had publicly acknowl-
edged or revealed the intelligence relationship to the United States"
(section 501 (a)) of Powers.
Let me insert right here that that flaw remains in the administration
bill and that flaw remains in the testimony of the CIA before every
committee of which I have knowledge.
Prosecution would have been possible notwithstanding the fact that
Colonel Powers' name was widely, indeed internationally, known, that
the Russians had themselves revealed Powers' capture and that, in-
deed, Powers was then facing charges in the Soviet Union.
It is true that under the statute all who mentioned Colonel Powers'
name could have defended on the ground that they did not intend to
impair or impede the foreign intelligence activities of the United
States. But the effect of this would simply have been to permit differ-
ent results as to different individuals who had done precisely the same
thing-to disclose what had already been disclosed.
I would go further. Subject to its exceptions, the statute would not
only have made it a crime for the news media to repeat Powers' name
but for each and every American who read it or heard it to repeat the
name. Under the statute no matter how often the name had been heard
or reheard, no matter how well known an individual was, each indi-
vidual who mentioned the name would be subject to criminal liability,
including all those to whom it was told and who then repeated it to
others.
Let me offer another example, because I do think that this flaw of
section 501(b) of this piece of legislation and the equivalent section
of the administration proposal are very significant.
In 1958 another American pilot, while flying for the CIA, was shot
down, this time in Indonesia. According to the book The Invisible
Government written by David Wise and Thomas B. Ross, the pilot,
Allen Pope, was initially held by the Indonesian authorities, was then
publicly tried by them for the murder of civilians and was sentenced
to death, and that in 1962, 2 years later, Pope was released by the
Indonesians.
Under the proposed section 501(b), the authors of The Invisible
Government, the publisher of the book which I represented and each
and every reader of it who repeated Pope's name would have risked
criminal prosecution. I would note here that the CIA was extremely
unhappy about publication of The Invisible Government, a book which
was widely and favorably reviewed in the Nation's press.
It is in precisely cases such as this that the "intent" exception of
the statute is of least help to a prospective publisher. It is one thing to
say that a publisher which in fact did not intend to impair or impede
the foreign intelligence activities of the TTnited States should be
acquitted of a crime. I am confident in this case it would have been.
It is quite another to say that the CIA at the time The Invisible Gov-
ernment was published would not have sought prosecution if it could
have done so or that it would not seek to do so if a similar situation
were to recur.
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One could cite many other examples of 'material which I believe
should have and should be published and as to which publication under
section 501(b) would subject all connected with prospective criminal
liability.
What of, for example, a situation in which it is learned that an in-
telligence operative is acting illegally under American law by, for
example, spying on Americans who have done nothing wrong but
oppose those in power? What of a student who learns that his pro-
fessor has been recruited by the CIA in violation of law and wishes to
tell, others of that fact?
What of any instance of criminal wrongdoing by the CIA or any
other intelligence operation? On its face section 501 (b) puts at risk all
who would disclose such illegal acts, whether they refer to the name
of the individuals who have committed the acts or simply provide any
information from which such identification could be made.
These examples illustrate some of the ways by which section 501(b)
may operate to restrict freedom of expression. At its core, section
501(b) flies in the face of a first principle of the first amendment :
While Government may try to keep information secret the disclosure
of information which has already become public may not later be
criminally punished.
Indeed, as phrased by Chief Justice Burger, "The government can-
not restrain publication of whatever information the media acquires
and which they elect to reveal."
Beyond these objections to section 501(b), I would urge the com-
mittee to consider this question : Law aside, even constitutional law
aside, is it really necessary for the first time in our Nation's history to
attempt to make criminal the publication of material which is essen-
tially within the public domain?
Ambassador Carlucci testified before the House Select Intelligence
Committee and, I suspect, testified before you yesterday, that even if
all information were public there could and should still be liability.
This is absolutely unprecedented and terribly dangerous.
I would urge upon you that whatever you may decide to do with
respect to the disclosure by CIA agents or the like that you adopt no
legislation which bars the rest of the American people from disclosing
fully the activities of our Government for better or worse of which
they learn. To do otherwise would not only deprive the public of in-
formation; it would deprive us all of credibility as we deal with each
other : press with public, citizens with each other. '
As for section 501(a), which deals with individuals who are in au-
thorized control or possession of information, I have the following
comments.
As I previously indicated, it seems to me that legislation designed
to assure that agents do not disclose the identity of their colleagues in
the intelligence service is constitutional. And as I will urge in a mo-
ment, notwithstanding some overbroad language, S. 191, introduced
by Senator Bentsen, is it seems to me, as a general matter, in a con-
stitutional range.
However, section 501 (a) of S. 2216 is flawed in a number of ways
which I would urge renuire serious study by the committee.
Perhaps the most important of these is what I believe to be the
overbroad language of section 501(a) in two distinct ways. For one
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thing section 501 (a) would make it criminal not alone to disclose the
identity of an intelligence officer or the like but to disclose "any infor-
mation" that identifies the person.
I appreciate the concern that there may be some instances in which
disclosing something less than the agent's name may in fact lead to his
ultimate disclosure. Nevertheless, I think it is constitutionally impera-
tive that the statute be limited in some fashion so as to make criminal
only the disclosure of the identity of the agent or other employee or of
information which, in and of itself, identifies the agent.
The words "any information" are so broad, so sweeping, so sus-
ceptible to differing interpretation that they may well not give suffi-
cient notice as to precisely what may or may not be said.
Beyond this, the definition in S. 2216 of what information may not
be disclosed is, I believe, far too broad. What is barred is communica-
tion of "any information" that identifies any officer or employee of any
intelligence agency so long as the information is classified, as virtually
all such information is, and the person is now serving outside the
United States or has served in any such capacity outside the United
States within the last 5 years.
Such language makes criminal the disclosure of the identity of
far too many people, people who may have done little of importance,
people, who are not in any real sense covert agents.
There are still further difficulties with section 501(a). I believe, for
example, that any such statute should at the very least allow a defense
be made that the material in question was not in fact classified, that
the Government should be required to prove, as presumably in this
area it could often prove, that the identities have been classified, and
that the Government should be obliged to prove as well that the ma-
terial is still validly classified.
Additionally, I would urge upon the committee that the Government
be obliged to demonstrate, or at the very least the accused be permitted
to refute the proposition, that the disclosed information was learned
during the course of service of the accused.
Finally, it seems to me appropriate that the statute contain some
provision allowing a defense in situations in which the individual
whose name is referred to is himself or has himself committed crimes
under American law. To do otherwise may well shield the CIA and
other intelligence entities from a kind of "whistle blowing" which all
of us I think would believe is in the national interest.
With this catalog of complaints behind me, I turn to title VII of
S. 2284 and the administration's new proposed version of it as set
forth by Admiral Turner. S. 2284 is in some respects an improvement
over S. 2216. But in others it is either no improvement or worse.
Let me offer a positive note first. Admiral Turner's new version of
S. 2284, similar to the draft the Department of Justice introduced be-
fore the House Select Intelligence Committee, wisely and prudently
limits the information which may not be disclosed to the disclosure of
the identity of covert agents, a term narrowly defined in the redraft of
S. 2284.
I believe any legislation in this area should confine itself to barring
disclosure of this information and no other and I commend the De-
partment and the CIA for its willingness to focus on this information
only.
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But S. 2284, as resubmitted by Admiral Turner, still seems to me
flawed in some significant respects. The first is technical, but important,
and I must say I am not sure and I cannot believe I am right in what
I am about to say, but it is important.
1 have read and reread the proposal submitted to you yesterday and
as I read it, although there is a definition of unauthorized persons in
the statute, there is nothing in the statute which again uses the word
"unauthorized." The criminal sections themselves make no reference
to what is or is not authorized.
On the assumption that this is unintended, I will continue my analy-
sis as if only "unauthorized" disclosures of information were pro-
hibited. As so read, section 701 (c) would make criminal the disclosure
of intelligence identities not alone by Government employees but by
anyone who knowingly discloses unauthorized information "with the
knowledge that such disclosure is based on classified information."
The difficulty here is the definition of what is and is not "author-
ized." As in S. 2216, S. 2284 would bar the repetition by any of us of
still officially classified, but notoriously well-known, information.
There is no way I believe that such a limitation can be deemed
constitutional.
Moreover, one critical distinction between 701 (c) and 701 (d) seems
to me absolutely untenable. For some reason, the administration seeks
to punish outsiders who disclose intelligence identities more harshly
than Government employees who do so. I am most interested in any
basis for this approach. To me, it remains incomprehensible.
Finally, and most broadly, I believe the imposition on private citi-
zens, who are not and have never been Government employees, of any
liability is unacceptable. There is little basis for believing it is needed.
If it is, we can certainly see so after we first make illegal disclosure of
the identities of covert agents by their former colleagues.
And, as noted above, it raises a host of constitutional problems, most
particularly when applied to those who simply repeat or report what
they have heard from others.
Of S. 191, Senator Bentsen's proposed legislation, I will simply
repeat what I suggested earlier with one amendation. It is, I believe,
constitutional to make criminal the disclosure by those "in authorized
possession of control" of information identifying covert agents of that
information.
However, S. 191 has a definition of what information may not be
disclosed which is, I think, broader than is necessary or appropriate,
for example, "any information which identifies or which can lead to
the identification of any individual...".
I would suggest that some combination of the definition of "covert
agent" from the administration proposal's new submission and S. 191's
definition of who may not speak is likely to be well within constitu-
tional bounds.
Both H.R. 6820 and amendment No. 1682 to S. 1722 appear to me
to make, in one form or another, the same errors as stated above with
respect to S. 2216 and/or one version or another of S. 2284. Rather
than parse through both drafts, therefore, I will simply add that if it
is thought advisable, as in amendment No. 1682, to prohibit the dis-
closure of the names of FBI agents, drug enforcement agents, or the
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like, and I have no views as to such matters, here, too, the need for
narrow definitions is a critical one.
Again, the determination of (a) who may not speak, (b) what may
not be said, and (c) under what circumstances it may not be said,
must be done with maximum precision and narrowness.
On February 8, 1980, I had occasion to write to Senator Moynihan,
at his request, to offer him my views as to the form legislation might
take in this area. I take the liberty, in conclusion, of paraphrasing my
conclusions which urged consideration of legislation containing the
following elements :
(a) Criminal penalities to be imposed on, and only on, individuals
who are or have been-
in authorized possession or control of any information" which identifies "any
present or former officer, employee, or source of an intelligence agency of a mem-
ber of the Armed Forces assigned to duty with an intelligence agency (i) whose
present or former relationship with the intelligence agency is protected by the
maintenance of a cover or alias identity or, in the case of a source, is protected
by the use of a clandestine means of communication or meeting to conceal the
relationship and (ii) who is serving outside the United States or has within the
last 5 years served outside the United States.
The first quoted portion above is taken from S. 191, the legislation
introduced by Senator Bentsen; the second portion is taken from the
legislation proposed by the administration.
(b) No criminal penalties to be imposed on the publication of such
material unless it is made by an individual who is or who has been in
authorized possession or control of the information being disclosed.
Hence, Mr. Agee could be liable under the statute; a publication which
simply repeated what Agee had disclosed would not be.
(c) Some kind of "whistle-blowing" defense. While I do not feel
as strongly about this as I do about the points made above-I am well
aware of the potential of abuse of such a defense-I remain of the view
that if the CIA agent being disclosed has himself committed some kind
of grievous crime under American law, that the disclosure of his iden-
tity alone should not be, per se, criminal.
Members of the committee : It is not easy, when the CIA seeks leg-
islation designed to protect the lives of those who work for us all, for
you to conclude that the legislation goes too far, that other factors must
be taken into consideration, that there are countervailing interests.
But the interests that I would urge upon you are not small ones.
Judge Murray Gurfein, in deciding the Pentagon Papers case in favor
of the New York Times, put it this way :
The security of the Nation is not at the ramparts alone. Security also lies in the
value of our free institutions.
That says as well as any words known to me what you should bear
in mind as you engage in the difficult task that lies before you.
Thank you, Mr. Chairman.
Chairman BAYH. Thank you very much, Mr. Abrams. Your experi-
ence actually defending against certain charges and pursuing this mat-
ter through the judicial process uniquely qualifies you to share that
experience with us and we appreciate it.
You, in your testimony, limit the scope that you would prescribe
for us to the identity of agents disclosed by Government officials. What
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about the leaking of the information on troop movements, the opera-
tion of weapons systems, the keys to our coding systems, nuclear
secrets, again by Government employees who are charged with the
responsibility of maintaining the security of this information?
Mr. ABRAMS. I believe all the examples you have mentioned, Mr.
4 Chairman, are currently encompassed in the espionage laws as they
exist. If they are not, I would not object to legislation making that
clear. I do believe, and unfortunately I had occasion to become con-
versant with the espionage laws, that each and every one of the claims
you cited would constitute a crime under the espionage law.
I note, in the testimony provided to you yesterday by the Depart-
ment of Justice, it was urged upon you that the espionage laws be
clarified so as to make clear that the publication of certain informa-
tion which may lie within the area that your questions spoke to would
also be made criminal. That was a central issue in the Pentagon Papers
case itself, the issue of being whether the Congress indeed meant to
make publication of the information which had become known to the
press, criminal or not.
It would certainly be in the area of codes. It was quite clear that the
Congress had intended that the publication of secret code informa-
tion would be and was criminal. In certain other areas, it was far less
clear. We urged successfully before the district court and did not
receive any ultimate resolution before the Supreme Court that publi-
cation should not be made criminal.
My own view is that the disclosure by agents or government em-
ployees is clearly illegal and under current law. If you should become
persuaded that is not so, I have no basis and no inclination to oppose
legislation making it clear that it is so.
I had thought the purpose of this legislation was to sweep beyond
current legislation so as to deal with the agent or source problem.
It is only when you get to the third part of the area of someone who
has supplied information, such as you adverted to, that I think you
have debate and there I would recommend that the law stay as it is.
Chairman BAY-TI. In my judgment on publication of the information
now, I share your assessment. According to some, it is very difficult to
prove and thus very little effort is made, particularly when it is diffi-
cult to nail down the intent involved, that the intent may not be ma-
licious as far as seeking to damage the country.
You mentioned that you thought the Government should prove
validity of the-
Mr. ABRAMS. Of the fact of the classification.
Chairman BAYH. One of the problems has been the whole "graymail"
area where you can have somebody you have nailed down, you have
the intent and you have the whole business, but in order to prosecute
this case the disclosure of the evidence to convict the defendant brings
more damage than the activities of the defendant already. Do you
have any suggestion as to how that could be dealt with?
Mr. ABRAMS. Let me say that in certain litigations, including one
in which I was involved, the case of Knopf against Colby, sort of
round 2 of the Marchetti case, which wound up in the Snepp case,
which the Supreme Court decided a few months ago, certain portions
of the trial were conducted in camera when they related to what the
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Government claimed was classified information or information the
disclosure of which would be harmful to the national interest.
I think the judge in that case, and I know the judge in the Pentagon
Papers case, came to regret the fact that the case was closed to the
public to the extent that it was because I think he concluded that very
much of the information which was said in advance to be of such a
"hot" nature that it should not be disclosed did not turn out to be
that way at all.
One way to deal with the problem, then, is to conduct portions of
the proceedings in secret.
Another way to deal with the problem is to make the crime easier
to prove, which is what the Department of Justice has urged. It seems
to me far more problematical to say that someone should be con-
victed of espionage without the Government meeting the burden which
legislation now requires. It seems to me to go pretty far, probably too
far.
I guess all I can say is that the Graymail problem is a real problem.
I think we live with those problems in other areas of our law. I think
we are willing as a general matter to live with the proposition that
guilty people might even get off because we think we are preserving
some other very important rights. I think that the current statutory
language in the Espionage Act as a general matter fairly and properly
states the burden to which the Government should be subject.
That is almost a fact question rather than a legal question, a fact
question about how factual it really is as to whether we really have
people walking the streets now who ought to be in jail because of
what we would all like to have be a violation of the espionage law. I
think the kind of legislation that Senator Bentsen has proposed to you
with the amendment that I have proposed would deal with that prob-
lem or would deal with most of that problem.
I think you have to recognize there are some of these problems that
we are not going to be able to deal with, either because they are un-
constitutional for us to do it or because we think there are other in-
terest which overcome the desire to prohibit disclosure of this informa-
tion. I think S. 191, as amended, would be a good first step.
Chairman BAYh. I appreciate your assessment. We do have a bill
that has been reported out of the Judiciary Committee dealing with
the Graymail question. It provides for matters to be considered in
camera. We might take a look at it. If we could ask our staff to give
you a copy because of your experience, if you don't mind let us have
your thoughts on it. We have a different kind of situation here where
traditionally criminal intent is necessary. That is an important part
of our system of jurisprudence, intent to do damage, to do bodily harm,
to injure the country.
Yet the proliferation of leaks has come from people pretty high
up the chain of authority that are designed I don't think intentionally
to hurt the country but rather to shape the policy of the country and
in the process they give to our adversaries more information than they
can get with KGB agents.
Mr. ABRAMS. Most of that, I would think, Senator Bayh, is more
it matter of internal control within the Department of Justice, within
the CIA, within the Department of State than it is anything that
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criminal legislation is liable to deal with. Whatever legislation there is,
it will not stem the tide of high level leaks unless we have a cadre of
public servants who are willing not to leak.
Chairman BAYJI. I concur. I think if Congress expresses its deter-
n.ination to raise the standard of severity of this kind of act so that
it doesn't become just sort of taking off your shirt, putting on the shirt,
the people might think a little longer before they do it. We sat here in
this committee and we had witnesses come before us for over a year
disclosing the most secret information about our surveillance systems
and our ability to dissect what the Russians were doing. It imposed
on this committee a very serious responsibility for security.
None of it leaked out of this committee. Periodically we found in
the newspapers people, first, who were pro-SALT leaking informa-
tion to prove that SALT could be verified and then the following
day you have the opponents leaking information to prove that it
couldn't be. As I have said on occasion it makes you wonder if the
Russians are getting their money's worth in hiring intelligence agents.
They would be better to hire some secretary to clip the newspapers.
I share your assessment of the danger of pursuing third parties,
publications, where I think you run into very strong first amendment
questions. But we will try to work that out. Thank you, Mr. Abrams.
My colleague from Rhode Island.
Senator CHAFEE. Thank you, Mr. Chairman.
Mr. Abrams, I would like to see if I could go through a series of
steps here as to where you think we could proceed. Let us take the
situation of Agee, himself, based on his access to authorized-let us
not get into authorized and unauthorized-he had access to classified
material and he revealed that information not through publication.
Now clearly you would think that we could prosecute him under the
original Moynihan bill S. 2216, under section 501(a).
Mr. ABRAMS. Yes; I do, My only qualification there is that I would
recommend based on my own overview and some sense of constitutional
considerations, that we not simply limit it to classified materials.
So much is classified. I think you have to narrow what it is that may
not be said. I think the administration's bill does that, for example,
and I think section 501 does that. I am saving I would have some
trouble simply saying that the disclosure of any classified material
can be made criminal.
Now I must tell you that my view on this is not that the constitu-
tional argument that I would make about this is in this area, one which
I think would necessarily prevail. I believe the Supreme Court as it
sits today would probably say that it is constitutional to make criminal
disclosure by Mr. Agee of any classified material. I think there are
the votes for that.
Senator CHAFEE. Let us take the next one. Let us say that a former
employee such as Mr. Agee than publishes it in a Covert Action Bul-
letin. Let us say he owns 100 percent of the publication.
Mr. ABRAMS. I think it is just the same. I think Mr. Agree could
be held guilty of a crime, whether he says it or writes it.
Senator CHAFEE. Now let us say he gives the information to a
publication which he does not own. He sells them a story, and it is
published. Do we get Mr. Agee and what could we do about this
publication?
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Mr. ABRAMS. I think you could get Mr. Agree if you could prove
what you said occurred in fact occurred. I think in regard to publica-
tion here is where you start to run into stormy weather constitution-
ally and here is where I believe legislation must be narrowly worded.
I would like to give one brief example. When Mr. Agee's book was
published listing certain names and addresses of purported CIA
agents, dependents and the like in Europe, a decision had to be made
by various newspapers in the United States about what to write
about the facts of that book. Now I just know the decision was made
at the New York Times that it just was not newsworthy and they
didn't think it was responsible to publish the names of anyone that
Agee had published in the book. Nonetheless it is my view that if Agee
sits up on a rostum or hands out leaflets or writes a book, that anyone
who hears what he has to say is constitutionally free to repeat it.
So I think where you have to focus your attention is on the person
who violates his trust. I understand that the harm that is caused is
not just caused by the person who breaches his trust. If Agee breaches
his trust and announces it to five people and they go out to tell more
people and they go out to tell still more people, the ultimate harm
is greater because of the retelling. Nonetheless I don't think you can
draw a constitutional line there and I don't think you should try to
draw a line there. I think both as a prudential matter because you are
approaching legislation here in this area for the first time and as a
constitutional matter because once you do start getting into the pos-
sible punishment of people who repeat information, it is extremely
dubious constitutionally that you can do it.
Senator CHAFEE. Suppose you have a standard with intent to im-
pair or impede the foreign intelligence activities of the United States?
Mr. ABRAMS. I don't take a lot of comfort from that standard, Sena-
tor Chafee. Part of what I do for a living is to advise publishers,
broadcasters and the like what their legal risks are. I must tell you I
don't know what I would tell a publisher who has, let us say, pub-
lished a lot of books particularly critical of the CIA or certain for-
eign intelligence gathering practices of the United States about what
a jury might find if they were to publish a book down the road with
the kind of information that we are talking about, even if it is a re-
peat of what Agee or someone else has said. I don't think we ought
to have that kind of imprecision. I don't think we ought to take that
kind of risk.
Senator CHAFES. Now it is the publication with which you have
reservations, is that correct?
Mr. ABRAMS. The publication but it is not just because it is a pub-
lication. It is also because it has a third party element. I would say
the same thing about the right of anyone in this audience to whom
Mr. Agee went and gave a speech and anyone who heard it, then went
out and said, "Agee says so and so is a CIA agent."
Senator CHAFES. Suppose I worked very closely with Mr. Agee, I
am one of his disciples, and I learn his technique. First of all, let us
say, and I am not a former employee of the CIA, based on the infor-
mation he told me, my working very closely with him, he says, "We
have something pretty good here but Abrams said I could be caught
by the law." So you publish it, what happens then? Or I write an
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article disclosing names, addresses, past experience, and let us say
I am a person of some standing and it gets read. It is a list of all the
active CIA agents in Greece, it is all the CIA agents wherever it might
be. Is there nothing we can do about that under your theory?
Mr. ABRAMS. Under my theory if the list is one which is created
by someone who has not been in the employee of the Government and
who has been trained, as it were, by Agee in the technique of making
a judgment
Senator CHAFEE. Supposing he just hands me a list?
Mr. ABRAMS. If he hands you a list?
Senator CHAFEE. And I publish it but the U.S. Government does
not know that I am working for Agee. It is just a list.
Mr. ABRAMS. The reason for my pause is that it is a hard question.
The reason that for me it is a hard question is that I could imagine
a situation where when you tell me someone is working for Agee, that
maybe it could be constitutional and appropriate to impose some kind
of liability through Agee.
If I may, let me take the subsidiary question that you asked. If
Agee gives me or someone here the list and I disclose the list or I pub-
lish the list, then I may be wrong but I am clear at least that it is
unconstitutional to punish me for publishing the list because the list
is already published, it is out, it is lost information by the Govern-
ment.
My problem with your question, the reason the question is a diffi-
cult one for me
Senator CIIAFEE. Excuse me, let me follow that up. You have the
list from Agee.
Mr. ABRAMS. Yes.
Senator CHAFES. And you publish it.
Mr. ABRAMS. Yes.
Senator Ch AFEE. You are a publisher.
Mr. ABRAMS. Yes.
Senator CIAFEE. Was that your example?
Mr. ABRAMS. Yes. My answer to that question is that there can be no
liability. That is precisely the same as if Agee gave a speech and read
it. Agee's giving the publisher a list is the same as Agee's saying what
is on the list and the. publisher printing it. I am confident that the law
is that we do not and cannot make criminal disclosure of information
which is public even if we are terribly distressed that it became public.
Chairman BAYFI. Will the Senator yield as a logical extension of
that. Suppose the publisher pays Agee $1,000 to get the list and to give
him the list?
Mr. ABRAMS. I think criminal liability probably would be proper
against a publisher who pays for information in a situation where the
person who gives it does so illegally. I would want to look into that and
see if any of my clients are going to go to jail because I said that. But
I don't think so.
Certainly you could pass a constitutional statute-I don't know if we
have one right now-which makes criminal paying money to someone
who has a legal obligation not to do something but does it. That does
not violate any constitutional principle that I know about.
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Senator CI-HAFEE. Now you get a list from Agee and you don't pub-
lish it but you just go around and announce it. Is that the same as
publishing?
Mr. ABRAMS. I believe it is the same. I don't think that in this area
there is the distinction between the right to publish it and the right
to say it. I think once information is out, it is out, and I don't think
you can rebottle what I believe to be an old secret.
Senator CHAFEE. It wasn't a secret. It was a secret until you told
everybody.
Mr. ABRAMS. It was secret until he gave it to me.
Senator CHAFEE. Suppose you take the situation that we have exist-
ing here, which is a series of people who have been trained by agents
to ferret out this information. They never worked for the CIA. They
are not doing it based on any knowledge they had gained from the
CIA but they mastered the technique of identifying covert agents
abroad and then they publish it under their names. What can we do?
Mr. ABRAMS. It does not contribute much to you for me to tell you
that I think it is a hard question. I do think it is.
Senator CHAFEE. That is the question we have.
Mr. ABRAMS. I don't think it is the only one that you have. My an-
swer to your question is that I do not believe, at this time at least, that
you ought to start down the road and making ,illegal the publication
or disclosure of information by people who have nothing to do with
the Government itself. Of course I speak of Government information.
If a time came when after you had legislation such as this before you
now which would make criminal the disclosure by agents, informants
and the like, and you determined this wasn't doing enough, that it
was not solving the covert action problem as it were, then I think you
ought to reconsider it.
My own view would be that that would probably be that even if
you did reconsider it, it isn't worth the price that we pay. I understand
and I am sympathetic to the view that such publications do enormous
harm but it seems to me that there is a high price to be paid if we are
starting down the road of making publication or disclosure of infor-
mation illegal when the people who do the publishing or disclosing
have no relationship with the Government at all.
Senator CHAFEE. Even though you have to prove and you do prove
that their published intent is to destroy an agency of the Federal Gov-
ernment, you are against. it?
Mr. ABRAMS. I don't think that their intent ought to bear on your
decision. They do bad things maybe for bad reasons but the question
I would urge on you at least is whatever the intent is, whether you
ought to start down the road of deciding what can be said or written by
people who don't happen to work for the Government, whether you
like or approve of their intent or not. I don't think that factor ought
to be that they don't like the CIA. They have a constitutional right
not to like the CIA. They may not have a constitutional right to pub-
lish certain information but they have absolute right to like or dis-
like what they choose. When you get to the question of what limits
you can put on what they can say I acknowledge it is a hard question.
I come out on the question by saying that, as I said earlier, as both
a prudential and constitutional matter I don't think we ought to start
down the road of making what they say or do illegal. At least yet.
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Senator CHAFEE. As you know, such an act may be very harmful
to a person on the firing line. That is one of the prices we pay, I assume,
under your presentation. What about in Britain, for example, where
they are far more restrictive? Does that have the chilling hand on the
press that you indicate might take place?
Mr. ABRAMS. I believe it does. The Official Secrets Act in Britain is
what I believe to be a very significant restrain on the British press.
The only reason it is not a worse restraint on the British press is that
it is often not enforced. I have had occasion to say to British journal-
ists now and then that they live in a society which is free but, of all
things, in this area at least, not a society of law. That is to say that the
Official Secrets Act makes illegal the publication of so much informa-
tion relating to the national defense, national security, what have you,
that they then put to the Attorney General as it were the question of
when to enforce "it and they act pretty reasonably.
Because they act pretty reasonably in their enforcement decisions
Great Britain of course remains an enormously free society. But
because they could act unreasonably-but lawfully-Great Britain
retains a body of unenforced law which is troublesome.
There are situations particularly in Northern Ireland where there
have been significant limitations on what the English press has been
allowed to publish.
Senator CHAFES. Thank you for what help you have been to us in
solving this problem.
Mr. ABRAMS. Thank you very much.
Senator CHAFES. I commend to you "Freedom of Speech" by
Chafee.
Mr. ABRAMS. I will read it again. Thank you.
Senator CIIAFEE. Mr. Berman and Mr. Halperin. Are they present?
Mr. Berman is not here. He is instead represented by whom?
Mr. ADLER. Allen Adler.
Senator CHAFEE. Why don't you proceed? How do you want to
divide it up?
TESTIMONY OF MORTON H. HALPERIN; ACCOMPANIED BY
ALLEN ADLER, ON BEHALF OF THE AMERICAN CIVIL LIBERTIES
UNION
Mr. HALPERIN. With your permission I will make the presentation
and then we can both answer any questions. Mr. Berman is on
paternity leave.
Senator CHAFES. I understand his wife has had a baby. We will take
notice of that and we will disclose it.
Mr. HALPERIN. I might say it is an authorized disclosure, for the
record.
Senator CHAFES. I will tell you, and this applies to later witnesses
too, I know you have prepared testimony but as much as possible
please direct your testimony toward the solution of a problem which
we think we have. Now maybe you don't think so but we face the
problem of disclosure of the names of agents or alleged agents around
the world represents a threat to their lives on missions which we, the
U.S. Government, have sent them on and the problem we face is what
can we do about it. Sri we seek your counsel on a solution to a problem.
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Mr. HALPERIN. With that in mind I would like to ask that my
prepared statement simply be made part of the record. There is one
phrase missing on page 5 and I would like to submit for the record a
substitute page.
Mr. Chairman, we do not support the view that there should not be
a CIA or intelligence community. We support the enactment of a
comprehensive charter which would put the intelligence community
on an appropriate legislative footing. Nor do we support, to use Mr.
Carlucci's words, the "wholesale" listing of names of purported CIA
employees, agents, or assets. We are sympathetic with and under-
standing of the desire of this committee, the CIA and many people to
try to deal with this problem.
Nevertheless I have to say that the more we look at the difficulties
of drafting narrowly drawn legislation, the more we look at the
problem of trying to draft something that accomplishes some purpose
in solving the problems that you have identified, but which do not at
the same time interfere with important public debate, the harder we
find it is hard to do that.
Mr. Abrams gave you a number of examples of situations in which
the public and the press ought to have the right to repeat information.
He cited those in relation to the bill that Senator Moynihan intro-
duced. They would all apply. I would say, equally to the administra-
tion's draft. While the administration withdraws the limitation that
you have to prove that it was done with the intent to injure, it sub-
stitutes something for it, something that is much easier in fact to
prove, that the information is classified. Therefore, the administration
bill would in fact interfere not only with a person who is a government
employee but any person. including a reporter, including a newspaper,
revealing information which revealed not simply a long list of agents
but a particular case where revealing the identity of a single agent was
viewed by people to be important to public debate.
We have in our statement a number of other examples of situations
where we think that would be true.
I would like to call the committee's attention to one other. It is con-
tained in the memoirs of a former executive branch official, a person
who I think you will agree and this committee will agree, is very sensi-
tive to the improper disclosure of classified information and yet who
thought it was important to make the point, important to public debate
to reveal the identiy of a person who is a source of assistance to the
CIA. The paragraph talks about allegations that the U.S. Government
was giving assistance to Indian politicians in the Congress Party of
India. This former Government official reports that he had this in-
vestigated and wa- informed, in an official capacity was given access
to the information and discovered that the United States had twice
given money to the Indian Congress Party. Both times, he writes, the
money was given to the Congress Party which had asked for it. Once
it was given to Mrs. Gandhi, herself, who was then a party official.
That paragraph would be a violation of every one of the bills that
appear before you.
It appears in a book called "The Dangerous Place" by Daniel
Patrick Moynihan. I think it is typical of the problem that former
Government officials have and newspapermen have in the fact that
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often it is impossible to make a point without revealing a name. The
point he was making was that Mrs. Gandhi was complaining about
CIA support of opposition politicians in India when she knew very
well sometimes she had received that. I don't know that we would all
agree that particular revelation was necessary but I think it is an
important example and another example of the view that in certain
circumstances you have to make that information public.
Senator CHAFrr. It seems to me that there is more than the dis-
closures required. Mr. Abrams I know was not concerned with this
particular paragraph but do the words "with intent to impair or im-
pede," mean nothing?
Mr. HALPERIN. There are two different drafts. The administration
has abandoned the "impair and impede" language and has substituted
"classified information." Clearly if it is true that Mrs. Gandhi re-
ceived assistance it would be classified information. So I think it would
be covered by the administration bill. Now as far as the CIA draft
which talked about "impair and impede" the problem with that is the
one that Mr. Abrams explained, namely that it would have a very
chilling effect on a reporter who was covering the CIA and who knew
if he or she ran a story that criticized the Agency that information
could be used against them in a criminal trial to prove that their
purpose was to impair or impede the function of the CIA.
I think that a citizen has the right to impair and impede the func-
tions of a Government agency, whether it is the Federal Trade Com-
mission or the CIA. The fact that your intent is to impair or impede
those agencies does not make your activity a crime if it is otherwise
legal. I don't think it is much protection. If the New York Times
was trying to decide whether to publish information which revealed
that university professors were functioning as CIA agents, the pur-
pose of that clearly would be, one could argue, to reduce the likelihood
that the CIA could use university professors in that way and there-
fore the allegation that the purpose of that series was to impair and
impede the CIA's ability to use professors would, I think, be difficult
to disprove before a jury.
A New York Times editorial came out as against the use of journ-
alists as functionaries of the CIA. Admiral Turner says publicly he
needs to use journalists in certain situations. So I think you are im-
pairing and impeding the CIA when you publish information which
has the purpose of limiting their ability to do things which you think
is improper for them to do.
So I don't think that provides much of a defense of that activity.
As I say, the administration bill which goes in the other direction
of saying you don't have to prove "impair or impede" but rather you
have to prove that the information is classified, I think would have
a much more chilling effect. It would create in effect an Official Secrets
Act for any information about former CIA employees. So that if some-
body told a newspaper that Watergate burglars had worked for the
CIA the newspaper would not print that information without violat-
ing the statute.
Again we have it on paper in our testimony. One can think of many
other similar examples. I don't think one can distinguish between one
magazine publication and another. I have not seen a draft that effec-
tively does that,
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The second section of the administration bill which talks about dis-
closure by persons who have had access to authorized information
which reveals the identities of covert agents is I think much broader
than has yet been brought out in the testimony before this committee.
It is important to understand that very many Government officials
who are not CIA employees have access to that information. In most ;
of the testimony that has been given here there are references to
penalizing former CIA employees or former employees of the intel-
ligence community who had access to this information.
The fact is that vast numbers of Government employees, employees
of the Department of Defense, of the State Department, or other
agencies, have access to the identities of what are called in the bill
covert agents. All of them would under this bill be penalized not only
for revealing names of agents that they learned in the course of their
official duties but any other names of agents. Indeed I would have
violated that statute, the second section of the administration draft,
by reading you that paragraph from Senator Moynihan's book be-
cause I would have been further revealing the identity of the source
of assistance to the CIA-I am a former Government official and while
in the Government I learned the identities of some covert CIA agents.
The bill sweeps far broadly to cover a range of situations that I find
it very hard to believe that the administration intends to cover. It is
another illustration of the great difficulty of dealing with this problem.
Furthermore I think the administration has simply failed to pro-
duce a bill to cover the Covert Action Information Bulletin. If you
look at Mr. Carlucci's not very enthusiastic support of the admin-
istration position, he says we can reach the Covert Action Information
Bulletin if we may assume that their use of what he called the tech-
niques normally used by intelligence agencies means that they know
that the information is classified. Now I think that is an enormously
strange interpretation of the statute. Because the Covert Action In-
formation Bulletin may ask people in a country to engage in a normal
activity of what I think most of us would refer to as investigative
reporting, of what Mr. Carlucci refers to as activities that intelligence
agencies engage in, that cannot make it a crime by the assumption
that they know the information is classified. This would not only reach
the Covert Action Information Bulletin, it would reach every inves-
tigative reporter in the United States.
Any reporter who went after information would be using inves-
tigative techniques and therefore under the CIA definition would
know that the information they were publishing was classified. I don't
believe that is a reasonable interpretation of this statute. Therefore
I think the administration bill simply has not covered the Covert
Action Information Bulletin. I think there is no way to cover what
they do without having a bill that is in fact clearly unconstitutional.
What I would urge that you do is deal with this matter within
the context of the charter and not separately because I think it is
an issue that is far easier to deal with in its limited form if you are
simultaneously legislating to control the intelligence agencies in other
ways.
I would urge you to proceed with great caution. I would also urge
that you deal with the problem raised with the Snepp case, of the
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CIA's ability now to censor the publications of all former CIA em-
ployees and the danger that some future administration may take the
authority of the Snepp case and apply it against all former employees
who have had access to any classified information including employees
of the previous administration. I think Congress ought to consider
whether it wants to legislate if not to overrule the Snepp decision, at
least very severely narrow it and basically to substitute criminal
penalties, if you do pass a criminal statute, for the injunctive relief
that is provided in the Snepp decision.
Thank you.
[The prepared statement of Jerry J. Berman and Morton H. Hal-
perin follows:]
STATEMENT OF JERRY J. BERMAN AND MORTON H. HALPERIN ON BEHALF OF THE
AMERICAN CIVIL LIBERTIES UNION
Mr. Chairman, we appreciate the opportunity to testify before this committee
on the specific question of the appropriateness of the Congress legislating
criminal penalties for the disclosure of the identities of intelligence officers and
agents. We are testifying on behalf of the American Civil Liberties Union, a
membership organization of some 200,000 Americans dedicated to the protection
of the Bill of Rights.
We understand the concern which many members of this committee and
many others in the Senate and in the Congress have about the publication of
names of Americans and others who are working clandestinely and secretly for
the CIA and for other intelligence agencies. We appreciate the desire to try to
do something about these revelations. We have testified elsewhere as well as
before this committee previously on this subject and it remains our position that
it is not im ossible to draft legislation which would be sufficiently narrow that it
would not be unconstitutional. Nonetheless, the more we look at proposed alter-
native drafts and the more we consider the consequences of the adoption of
legislation, the more we become convinced that the problem is more complicated
than it seems. We would urge that any legislation be deliberately considered
and that the precise wording be subject to careful scrutiny. Our own current
views may be summarized as follows :
Even a relatively broad bill would not be able to deal with what is the main
current concern, namely, the publication in the Covert Action Information
Bulletin of the names of CIA station chiefs and other prominent CIA officials.
Those listings derive from unclassified information. It is our firm view that any
statute which purported to punish private citizens for using unclassified informa-
tion would be unconstitutional.
Even a relatively narrow bill which might survive a constitutional challenge
would interfere with vital public debate and with the ability of private insti-
tutions to police their own integrity particularly in the absence of a prohibition
on the use of such institutions embodied in a comprehensive charter.
The problem of criminal penalties for the disclosure of names of agents
should be seen as part of a more comprehensive problem, .,amely, how to protect
the legitimate secrets of the intelligence community without interfering with
needed public debate on intelligence agency matters. The Congress needs to
consider the appropriate mix of contractual obligations, and criminal penalties.
We need to keep in mind that the object is to protect legitimate secrets and not
to use constitutionally sensitive techniques if other less burdensome means may
be more effective.
Mr. Chairman, as you are aware, there are a large number f proposals both
formally and informally before this committee. We would ask permission to sub-
mit for the record an analysis of these approaches in which we would attempt
to point out, as we understand them, the different consequences of alternative
formulations. We believe that the existence of this wide variety of different
measures shows how difficult it is to draft a bill which does not do violence
to the First Amendment and which at the same time deals effectively with the
concerns which the CIA and members of this committee have.
Rather than analyze the differences between those bills, what we would like
to do briefly today is to focus on the problems which would be created by even
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the narrowest bill, i.e., one limited to those who had authorized access to infor-
mation and who revealed the identity of agents whose names and identities
they learned as a result of that official access. What we will seek to show is that :
There are many situations in which names-usually not of Americans-need
to be revealed if the public is to be adequately informed and to make an appro-
priate judgment on intelligence activities.
Private institutions need to have access in some circumstances to names of
current employees who may be violating the rules of that private institution.
Even these narrow bills could not prevent the publishing of lists of names
which are not secret and which are derived from public sources.
Let us turn then to some brief illustrations of circumstances in which the re-
vealing of names or the release of information which might well reveal the
names of those who cooperate with the CIA is necessary for the public to under-
stand an issue of vital importance.
In thinking about this question, much discussion proceeds as if the bill pro-
tects only Americans and indeed only those Americans who are formal em-
ployees of the CIA. In those circumstances the American employees' identity is
usually not necessary to describe the intelligence activity. However, in some cases
it may not be possible to describe an issue with sufficient precision to allow
public debate without at the same time revealing information which could well
reveal the identity of an American who is a CIA employee or a source of opera-
tional assistance.
Consider for example, the issue of the Watergate burglary. A government
official who knew that several of the individuals captured at the Watergate
had been or were sources of operational assistance to the CIA might well have
found it impossible to raise the issue of CIA involvement if there were criminal
penalties for revealing information which identified a CIA agent.'
Or consider the allegation made from time to time that the CIA had infiltrated
parts of the federal government. Suppose that a government official learned that
a member of the staff of this committee or some other congressional committee
was in fact a CIA employee. By making that information public he runs the risk
of identifying a CIA agent and violating the proposed criminal statute.' More-
over, as we attempt to show below, protecting the integrity of private institutions
often requires a willingness to reveal the names of CIA agents.
Unless the bill has a specific provision providing that Americans can reveal
that they were themselves secret CIA agents at least after they complete their
service with the CIA, the statute would have a very major inhibiting effect on
public debate.
As some of the bills-but not the Administration bill, are now drafted, no
secret employee of the intelligence services could, for example, join the Associa-
tion of Retired Intelligence Officers. Nor could any former secret agent testify
before a congressional committee, as many now do, and invoke the authority and
insight which comes from having served within the government. Nor could any
former official write an article or a book taking a policy position if he or she
revealed the fact that he or she was a CIA agent. No description could, of course,
be made of activities in which the individual had engaged even if those descrip-
tions did not involve revealing the identities of any other individual. Thus, at
the very least, any statute needs to have an exception permitting an individual
to reveal the fact that he or she had been a CIA agent or source of operational
assistance to the agency.
Where the person identified is a foreigner, the number of situations in which
release of information, which might reveal the name, would be absolutely es-
sential for public discussion of a major intelligence or foreign policy issue is
substantially greater.
John Stockwell's book, "In Search of Enemies," could probably not have been
written without violating the criminal laws of the United States if the proposed
names of agents statute were in effect. Stockwell was the head of the Angolan
' The Administration bill requires that the "covert agent" be serving outside the
United States. This limitation is of some value. However, a person in possession of in-
formation that a Watergate burglar was a CIA agent might well not know if the person
had served abroad and would risk criminal penalties if he had.
2 The Administration bill does not have an exception for transmittal of information to
Congress. Mr. Carlucci in his testimony on June 24 indicated CIA support for an excep-
tion for the intelligence committees of the Congress. Such a provision should be added to
the bill but it is not sufficient. This committee and its counterpart in the House do not
have the resources to investigate every allegation of wrongdoing.
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task force in the CIA which ran the Angolan intervention. He could not have
written a book at all without revealing his own identity which would be a crime
under the statutes as currently drafted. More generally, lie could not have des-
cribed CIA involvement with various groups contending for power in Angola
without making it clear that the heads of those movements were working with
the agency. Nor could the story of the CIA's involvement-at the direction of the
White House-with Kurdish rebel groups in Iraq have been discussed publicly
without revealing that the heads of those movements worked with the CIA.
Of course, the Washington Post could not have published the story that King
Hussein was the recipient of CIA assistance-a story which it considered to be
of substantial news value-if the broader bill was in effect and that information
could not have been provided to the Post and other newspapers by individuals
inside the government without violating the proposed criminal statute. The CIA's
connections with various kinds of unsavory individuals-whether they be dicta-
tors or criminals (including dope smugglers), or alleged torturers-could not be
discussed publicly without information coming from someone who had apparently
violated the proposed criminal statute. In short, in a variety of circumstances,
the proposed criminal statute would interfere with public debate on issues of
major importance. It is simply not the case that in all circumstances debate can
go forward without revealing information which tends to reveal the identity of
particular individuals.'
The proposed statute could have a substantial effect on the ability of private
institutions such as universities, churches or newsgathering organizations to pro-
tect themselves from improper infiltration by the intelligence community.
Consider the case in which a CIA employee discovers that a Harvard profes-
sor is assisting the CIA in the secret recruitment of foreign students studying at
Harvard. This activity is in violation of Harvard University regulations but not
of any CIA regulations or guidelines. Thus the individual would probably not
get very far bringing the information to either of the intelligence committees
or even to the Intelligence Oversight Board. He would be told that, as Admiral
Turner has stated publicly, the CIA intends to use individuals in violation of
Harvard's rules, provided the individuals are prepared to cooperate with the
agency. Thus, the individual might well place a phone call to an official at
Harvard advising the university that one of their professors was operating in
violation of their rules and perhaps identifying the professor or at least provid-
ing information which might tend to identify the professor. That phone call
would be illegal under the proposed statute and hence it would be much less
likely to be made substantially reducing the ability of Harvard or other uni-
versities to police their own campuses.`
It is worth adding that under the bill now supported by the Administration,
if the call came to the president of the university and if he in turn used that
call to initiate an investigation for the purpose of stopping professors from
engaging in secret recruitment activities, then the university president would
be in violation of the proposed statute, since the information would be classified.
The situation would be even more absurd under the statute originally pro-
posed by CIA and introduced in the House Intelligence Committee. Under that
statute if a Harvard University professor doing research in the archives of
Harvard University came upon unclassified letters which identified a current
Harvard University professor as a secret CIA recruiter, the Harvard professor
doing the research would not be free to disclose the information. Should the
professor take this unclassified Harvard-generated information from the archives
and pass it on to other Harvard professors accompanied by his conclusion that
a current Harvard professor was still a CIA recruiter and that this was a viola-
tion of the Harvard rules and should be stopped, that individual would be using
information which tends to reveal the name of a CIA informant and doing so
for the purpose of hindering or interfering with CIA activities.
Mir. Carlucci in his testimony states that it is a "fallacy" to assert that the proposed
legislation "would stifle discussion of Important intelligence and foreign policy issues."
However, he goes on to note that public debate "has taken place without recourse to
wholesale disclosure of names of intelligence personnel" (emphasis added). That is of
course not the issue. We do not suggest that public debate requires the wholesale listing
of names but only the occasional revelation of an identity in the context of discussing
a specific issue or operation. The proposed bill would of course impose criminal penalties
not only for "wholesale" identification.
*Under the Administration bill the act would he illegal only if the professor had
"served" outside the United States. Of course, the government official could have no
way to know if the professor working with the CIA had "served" abroad.
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The same issues would arise in the case of churches or newsgathering organi-
zations. A tip to a church that a particular church official was a CIA informant
or agent would violate the statute and the use of that information by the church
to cleanse itself would violate the provisions of the administration bill or the
proposed CIA bill. Efforts by newsgathering organizations to police their own
house would meet with similar difficulties.
Most of the problems that we have identified could be eliminated by returning
to language similar to that contained in S. 2525 which would have provided
criminal penalties only for the release of names in a situation where the release
was done deliberately for the purpose of placing the life of the individual in
jeopardy and where the release of the name did, in fact, have that result. Any
bill which goes beyond that would go too far in chilling important public debate
and therefore should be rejected.
We also must note, Mr. Chairman, that no bill which is conceivably consti-
tutional can, in fact, prevent the publication by the Covert Action Information
Bulletin, or by other publications in the United States or abroad of the names
of CIA officers who are assigned to positions in American embassies.
The simple truth is that those individuals are only under what is referred to
as light cover. The CIA has never had any real confidence that the identity of
those officials would be kept from foreign intelligence services, host govern-
ments, or even from the local or American press. Anyone who has traveled abroad
or who now travels abroad to engage in newsgathering activities or political
activities of any kind can tell you that the CIA officers at a particular embassy
are widely known not only within the diplomatic community but within the
local and American press communities and within the political community of the
host country.
The individuals are not identified as being with the CIA almost entirely for
diplomatic reasons. That is, most governments do not want to formally acknowl-
edge the fact that the United States or other countries have intelligence agencies
operating within their embassies and enjoying diplomatic immunity, but they all
know that is going on and anybody in the country with an interest in finding out
who the CIA station chief is can readily do so.
It is worth considering carefully in this regard the few words on cover included
in the Church Committee report. This reads as follows :
"The Committee examined cover because it is an important aspect of all CIA
clandestine activities. Its importance is underscored by the tragic murder of a
CIA Station Chief in Greece, coupled with continuing disclosure of CIA agents'
names. The Committee sought to determine what, if anything, has been done in
the past to strengthen cover, and what should be done in the future.
"The Committee found conflicting views about what constitutes cover, what it
can do, and what should be done to improve it. A 1970 CIA Inspector General
report termed the Agency's concept and use of cover to be lax, arbitrary, uneven,
confused, and loose. The present cover staff in the CIA considered the 1970 assess-
ment to be simplistic and overly harsh. There is no question, however, that some
improvements and changes are needed.
"The Committee finds that there is a basic tension between maintaining ade-
quate cover and effectively engaging in overseas intelligence activities. Almost
every operational act by a CIA officer under cover in the field-from working
with local intelligence and police to attempting to recruit agents-reveals his
true purpose and chips away at his cover. Some forms of cover do not provide
concealment but offer a certain degree of deniability. Others are so elaborate
that they limit the amount of work an officer can do for the CIA. In carrying out
their responsibilities, CIA officers generally regard the maintenance of cover as a
'nuisance.'
The situation of the Athens Station Chief, Richard Welch, illustrates the prob-
lem of striking the right balance between cover and operations, and also the
transparency of cover. As the Chief of the CIA's Cover Staff stated, by the time
a person becomes Chief of Station, 'there is not a great deal of cover left.' The
Chief of the Cover Staff identified terrorism as a further security problem for
officers overseas, one that is aggravated by the erosion of cover." 5
5 "Foreign and Military Intelligence," Book I, Final Report of the Select Committee
to Study Government Operations with respect to Intelligence Activities, U.S. Senate,
44th Cong., 2d Sess., Report No. 94-755, April 26, 1976, p. 458, footnote omitted. The
Report explains that this particular material has been substantially abridged at the re-
quest of the executive agencies. The classified version of this material is available to mem-
bers of the Senate under the provisions of Senate Resolution 21 and the Standing Rules
of the Senate.
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We would urge this committee to look at the original, uncensored Church Com-
mittee discussion of cover and to take with a great deal of skepticism any asser-
tion that these names cannot be derived from a combination of public sources
and local gossip. In fact, manuals and directories published by the United States
government enable anyone using simply public sources and publicly available
methods of analysis to deduce who is or who might very well be a CIA agent'
There is no way we believe constitutionally to punish the disclosure of such
deductions. If that cannot be done there is no way to prevent the publication
of lists of names of CIA officers.
The Administration bill would punish release of any name by anyone who,
while in the government, had access to any agents' identities and who reveals any
identity. In our written submission we will discuss the difficulties with this bill
in greater detail. Now we wish only to make one point, namely that the number of
people covered by this provision would be very large. While it is true that few
government employees know the names of deep cover American CIA employees
or foreign assets. Vast numbers of government officials know the identities of
one or more CIA employees who are under normal cover when abroad. All of these
people would be in jeopardy of violating the statute if they analyzed or discussed
any CIA covert activities even if they were in no way involved in any CIA activ-
ities when in the government. For this reason among others we prefer the
formulation of the Aspin bill.
This leads us finally to our view that a names of agents bill should not be en-
acted as a separate piece of legislation. If criminal penalties are to be established
for revealing the names of agents on the part of people with authorized access
that should be done in the context of a comprehensive legislative charter which
should provide firm limitations on the surveillance of Americans and which
should provide for the protection of the independence of institutions such as
universities, the press and the clergy.' Moreover, Mr. Chairman, we believe that
the new situation created by the Supreme Court in U.S. v. Snepp cannot be ig-
nored in considering congressional action in this area. The CIA has justified the
need for prior review of manuscripts as necessary to persuade those who may
cooperate with the CIA that it will protect classified information about them.
However, as William Colby, former Director of Central Intelligence explained in
hearings before the House Intelligence Committee, a foreign source considering
cooperation with the CIA is not likely to be reassured by the knowledge that if
somebody reveals his identity in a book the profits of that book will be seized by
the United States government. In Mr. Colby's judgment, with which we concur, he
is much more likely to be reassured if told that the United States will take the
steps to keep that information secret when it can and that those steps include
criminal penalties for those who reveal the names of such agents.
Thus we think that the severe limitations on the First Amendment which stem
from the Snepp decision are both unnecessary and ineffective and that Congress
ought to take away from the CIA the authority to require pre-publication review
under the threat of court-ordered sanctions, if and when Congress provides
criminal penalties for the release of the names of agents by former CIA officials.
The existence of that criminal penalty should provide a more effective incentive
for former officials to submit books to make sure that they are not inadvertently
revealing the names of agents. That would provide much more effective protection
than provided by the Snepp decision without violating the constitutional rights
of former officials to publish their memoirs and the rights of all of us to learn
from those books about the activities of the CIA.
Mr. Chairman, once again, we want to say how much we appreciate the atten-
tion given to our views by this committee and we are, of course, prepared to
answer your questions.
6 Mr. Carlucci labels this position as another "fallacy" but here again his discussion
is less than precise. He suggests that public sources alone are not sufficient but admits
that they sometimes are because information has been publicly disclosed which reveals
the "indicators." That being the case, many names can now be derived from public sources.
Others are apparently the result of what Mr. Carlucci refers to as "the same techniques
as any intelligence service uses in its counterintelligence efforts" or what others would
call the activities of newsgathering organizations. Mr. Carlucci suggests that the CIA
has gone along with the Administration bill drafted by Justice only if it would reach
the Covert Action Information Bulletin because its "use of criminal investigative tech-
niques" would provide sufficient proof that the disclosures were based on classified in-
formation. We urge the Committee to carefully explore the meaning of the assertion.
'Mr. Carlucci's assertion that the CIA's support for comprehensive charters would
not diminish if a separate names of agents bill were passed misses the point that such
restrictions on public debate would be less objectionable if a comprehensive charter were
in place.
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Chairman BAYH. Thank you, Mr. Halperin. I appreciate your let-
ting us have your thoughts. You have had a personal interest in this.
You have been very helpful to the committee in past deliberations as
to where you draw the line. Would you care to comment on a broader
problem of information, how it could be defined in a way that would
not be unnecessarily violative of first amendment rights, how it could
be confined to that kind of information which would be generally ac-
cepted as the kind of information that really is classified information,
not to "put the stamp on it if in doubt" kind of information?
Mr. HALPERIN. I think insofar as that problem, the Administration
bill does probably as well as you can. It talks about disclosing infor-
mation that directly identifies another person as a covert agent. I think
in doing there are created very serious problems of proof because they
are going to have to publicly reveal information and make it clear
that you have correctly identified somebody as a covert agent. I have
some problem with their definition of covert agent.
Chairman BAYni. I might interrupt, I don't think I asked the ques-
tion in a manner that let you know I was changing gears. I am talking
about different kinds of information other than information that
would relate to the identity of agents, information about our secret
codes, information about troop movements, operations of weapon sys-
tems, the operation of satellite collection systems and this kind of
thing.
Mr. HALPERIN. I should say, Mr. Chairman, I neglected to say in the
beginning that Mr. Adler and I are appearing on behalf of the Amer-
ican Civil Liberties Union and therefore unlike the other people who
testified today the views expressed are not our own but those of the
ACLU.
Let me give you a personal view in response to that question. I think
that this problem of names of agents should be looked at in the broader
context of the set of procedures and regulations that the Government
has to control, the improper disclosure of information relating to the
national defense, foreign relations and intelligence. The way to go in
all of those areas is to draw up narrowly drawn criminal statutes
which penalize the intentional disclosure of those narrow categories of
information to people who choose to get access to that information
and at the same time makes it clear that no criminal penalty is at-
tached to the use of information which reaches them by members of the
press or others, whether they get it from those Government officials or
some other sources, and which also makes it clear that no prior re-
straint on the publication of that information can be had against the
newspaper which gains access to the information.
If you take that approach the problem is to narrowly draft the
categories so that they don't have a chilling effect which cuts across
vast quantities of information. As far as names of agents the language
"knowingly discloses information and correctly identifies" is probably
as narrow as you can get. We have such a statute on codes which
penalizes those who are former officials of the Government who reveal
the fact that we have broken a diplomatic code or the content of the
diplomatic code. We have a statute on atomic energy. That one has
turned out to have a definition of atomic energy information that is too
broad.
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We have a statute that relates to communications intelligence which
is probably pretty good. Now one could go on. Strangely enough we
have no statute relating to troop movements or design of weaponry.
There is a danger in those that if you draft it too broadly they can
affect the whole range of information. There again it is possible to de-
fine, for example, the technical details of weapon systems or the
details of military contingency plans. Those could also be defined in a
way that did not cast a chill over the ability of former officials to en-
gage in public debate. What is needed is a fundamental decision on the
part of the administration. It must agree that the real problem is pre-
cisely that, the unauthorized disclosure of information by people,
whether they are heads of the National Security Council or Secretaries
of State or career officials in Government or heads of independent
agencies, and that the way to deal with that problem is a system of
narrowly drawn statutes that can in fact be enforced in the court. If
the Administration was prepared to adopt that approach, it would be
possible to begin to draft these definitions which would keep the bills
narrow enough that they would not infringe on legitimate debate.
Chairman BAYH. I appreciate your assessment here. We might ask
you to take a look at some language later on if you don't mind. I have
a rather strange feeling in the pit of my stomach that there is perhaps
not a willful but indeed an unintentional application of a dual
standard here for those who want to go out and apply a standard
against publication of something that is not classified and at the same
time those folks are not as concerned in diligently pursuing people who
may be in the very highest hierarchy of the governmental establish-
ment, who for reasons that appear to be good to them make informa-
tion available to the press to try to create a certain public opinion and
thus form public policy by leaks.
It seems to me if we have information that is not vital to the national
security it ought to be made public and should not have a classified
stamp put on it in the first place.
Mr. HALPERIN. May I make one observation ? The purpose of this
bill is said to be at least in substantial part to enable the CIA to get
people to cooperate with the agency because we show that we have
some means to protect the unauthorized disclosure of information
about people who cooperate with us. If you look at the unauthorized
disclosures that have occurred in the past several years it might dis-
courage people. I think one is the Covert Action Information Bulletin.
But I think the other, which is much more important in my view, is the
disclosure about the details of the planned operation to rescue the
American hostages, information about the fact that American intelli-
gence agents had infiltrated, disguised as European businessmen, the
fact that warehouses had been rented and so on. This was all revealed
in the press for reasons that one can speculate about.
If I was a citizen of a foreign country and was approached by the
CIA to help rent a warehouse for some purpose in the next several years
I must say I would he much more likely to be deterred by those detailed
descriptions in the American press than by the fact that names of
CIA station chiefs, which are not really secret and everybody knows
are not secret, would be published in the Covert Action Information
Bulletin.
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Yet I have not heard from anybody in the administration with a
proposal on what to do about those leaks.
Chairman BAYH. I don't know where you put the Senator from
Indiana but you heard howls of anguish.
Mr. HALPERIN. I have heard them from the Congress. From the
executive branch we hear a great deal about the Covert Action Infor-
mation Bulletin. We have heard nothing about Iranian warehouses.
Chairman BAYH. I should hasten to say that my howls of anguish
should not be interpreted as verifying the authenticity and accuracy
of reports that I am howling in anguish about.
It does not matter whether they are true or not. That is correct as
far as damaging the ability of our agencies to get cooperation in the
future. I don't believe that a Presidential Secretary or a Cabinet offi-
cial or Congressman or Senator should be immune if indeed there is a
standard established that is designed to protect certain kinds of infor-
ination it ought to apply across the broad.
Thank you very much, gentlemen. We appreciate your helping us.
Senator Durenberger.
Senator DURENSERGER. I have a relatively narrow point. I apologize
for not being here for your presentation. As I pointed out in a letter
that you may have received by now, one of my concerns, I guess a con-
cern of all of us is that we don't sink ourselves into some kind of con-
stitutional swamp here in our efforts to find a solution. I am interested
in taking a little part of this and talking about what we can do about
the people whom the Agee types train to ferret out CIA employees and
agents. Let us assume just-for a minute that we refrain wholly from
subjecting to prosecution the publishers of a leak. How strongly do you
think we could draft a bill that deals with the leaker, himself? Could
it cover the disclosure of classified techniques for determining agent
identities? How far do you go in including information that leads
to the identification of agents?
Mr. HALPERIN. I think you can do something about that. I would
call to your attention Congressman Aspin's bill which is the only bill
I know of that deals specifically with that issue and which makes it
a crime for a former official to use covert techniques he learned in the
Government to identify other people. I think that is probably about
as far as you can go. The bill does have that language, and I would
urge you to take a look at that. I think it is also important to say that
I think the CIA greatly exaggetrates the degree to which these tech-
niques are esoteric and Mr. Carlucci seems to concede that when he
says the problem is that people like Philip Agee have revealed the
techniques already. Insofar as that is true those cats are out of the
bag and nothing can be done to put them back in.
I also think he greatly exaggerates the degree to which one needed
Philip Agee or anybody else to figure out what those techniques are.
In any case I think there is now a set of publicly described techniques
which can in fact be used by anybody-if not Americans, by foreign-
identify a certain class of CIA agents who are not undercover
ers-to
agents but people who are under the nominal diplomatic cover. I urge
you to look at the report on cover which the predecessor committee,
the Church Committee, prepared and which deals with this issue. The
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only thing I have seen is six paragraphs of italic language but they are
very tantalizing and I would urge you to look at them.
I think what you will discover is that the cover the "Station Chief"
is under is nominal cover for diplomatic niceties and not in fact some-
thing that anybody believes keeps anyone who wants to, from finding
out who the "Station Chief" is. The "Station Chiefs" will tell you,
except when under orders to promote this bill, that they want most
identities known because if a Russian wants to defect they want him
to know whom to come to and they in fact are not very secret.
Chairman BAYH. Thank you very much.
Mr. HALPERIN. Thank you, Mr. Chairman.
Chairman BAYH. The next witness is Mr. Raymond J. Waldmann,
intelligence consultant to the Standing Committee on Law and Na-
tional Security of the American Bar Association.
TESTIMONY OF RAYMOND J. WALDMANN, OF SCHIFF HARDIN
& WAITE, INTELLIGENCE CONSULTANT TO THE STANDING
COMMITTEE ON LAW AND NATIONAL SECURITY OF THE
AMERICAN BAR ASSOCIATION
Mr. WALDMANN. I would like to shorten my statement if I may.
Rather than read the entire statement I will read portions of it.
The first full sentence and the first paragraph of the second page
should be omitted from the statement. I inadvertently refer to an ABA
report and, as that report is not part of the ABA's official position,
there should not be a reference to that document in the statement. I
will begin in the middle of page 2.
It should be self-evident that an intelligence agency must be able
to operate in secrecy, to provide reasonable protection to those who
cooperate with it, and to defend itself against those who attack it. The
report discussed briefly the inadequacies in present espionage laws and
their enforcement in achieving these goals.
Earlier congressional hearings have provided examples of the need
for new legislation. Protection of identities is necessary not only to
protect the lives of intelligence officers and agents but also to protect
intelligence operations.
The difficulty in this area is not in deciding what to do, but in
deciding where to stop. Legislation in the area will be regarded by
some as potentially eroding the first amendment protection of free
speech, and therefore it must be carefully drawn. It must be suffi-
ciently narrow and precise to withstand constitutional challenge, yet
broad enough to deter unacceptable acts and general enough to allow
for unforeseen situations and circumstances.
For example, laws in analogous areas, such as those prohibiting the
utterance of threats, have been found constitutional. The Moynihan
bill appears carefully drafted to satisfy these needs.
In considering the various legislative proposals, this committee will
have to take a position on a very important issue. The case of the
Government employee who discloses classified identifying information
raises little controversy. And all proposals propose punishment in such
a case. More difficult is the extension of criminal sanctions to the fol-
lowing situations
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a. Identification made through analysis of publicly available in-
formation by former Government employees with special expertise
gained during their employment; and
b. The republications of identifications by the press or journalists
who come into possession of the information through an intermediary.
On the one hand, the risks of such extensions are obvious. The possi-
bilities of harassment, censorship, and the chilling effect on free speech
in the name of agent protection should not be discounted. The prohi-
bition of these possibilities is what the first amendment is all about.
On the other hand, the first amendment is not absolute; its protec-
must be weighed against other interests. Those interests include
tions
at least the protection of human life and may extend, in extreme cases,
to national security.
Given the very real practical problem of adequately dealing with
the Government leaker, serious consideration must be given by this
committee to the extension of liability to those outside the Government
who disclose identifying information with the requisite intent to im-
pair or impede our foreign intelligence activities.
Provisions to accomplish this in the bills before the committee are
sections 501 (a) and 502 (b), and section 501 (b) of the Moynihan bill ;
section 701(c) of the administration bill; and section 1127(a) (2) of
amendment No. 1682 to S. 1722 offered by Senator Simpson.
The Simpson formulation is troublesome in that it imports law
enforcement concepts into intelligence activities in attempting to ex-
tend protection to FBI and other law enforcement officials, and is less
precise than the Moynihan or administration versions.
The administration version is too broad, punishing attempts to
diclose information. The Moynihan formulation is technically less
troublesome, allowing the Government to plug leaks after the fact. It
does so within acceptable limits since the Moynihan bill requires a
specific intent for prosecuting either the principal or the accessory,
thus minimizing the adverse effects of attempting to plug such leaks.
It is important to note that some forms of accessorial liability may
be found under section 501 (a) of the Moynihan bill even if section
501(b) is not retained. Under section 502(b), those who "cause" a
felony (aiders and abettors and accessories before the fact, as described
in section 2, of title 18 United States Code), those who fail to report a
felony (misprisiouers as described in section 4 of title 18), or those who
conspire (18 U.S.C. ? 371) could be reached if they had the requisite
intent to impair or impede foreign intelligence activities.
It is useful to examine how these provisions might be applied. The
spring 1980 issue of CounterSpy contains, on page 36, a list of four
names with brief biographical information under the heading : "The
following officials, presently assigned to the U.S. Embassy in Kabul,
are CIA officers." Presumably, if these identifications are accurate, a
CIA personnel officer could so testify at a trial. Since the Embassy
titles ("Attache," "Second Secretary," et cetera) are also given by
"CounterSpy," it is evident that the United States is taking affirma-
tive measures to conceal these individuals' intelligence relationship
and that they are serving outside the United States, two elements of
proof required under the Moynihan bill. To be reached as an accessory,
misprisioner or coconspirator, however, requisite intent to impair or
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impede must be found. In its editorial on page 2 of the same issue,
CounterSpy provides the evidence, saying:
Given the CIA's disregard of the law and its enormous record of consciously
committed crimes it is folly, at best, to talk of reforming the CIA. The only ac-
ceptable humane response is to work for the abolition of the CIA. Accordingly,
CounterSpy, as we have stated in the past, fully supports the abolition of the
CIA.
Thus, I believe, CounterSpy could be prosecuted either under sec-
tions 501(a) and 502, as an accessory or an aider or abettor, or under
section 501(b), directly as a principal. A significant difference, how-
ever, is that under the former prosecution, complicity with a person
who had authorized access would also have to be shown.
It is worth noting in passing that similar reasoning could be applied
to the "Covert Action Information Bulletin." In its June 1980 issue's
section entitled, "Naming Names," on pages 29-34, it purports to
identify 40 CIA officers and one Pentagon intelligence chief. In both
these cases, whether true or not, individuals in highly volatile parts of
the world, such as Afghanistan, have had their lives placed in jeopardy.
If true, these identifications may also have obviously hindered in-
telligence operations. Such an activity should not be protected.
A few other comments may be helpful in the committee's work. If
the prosecution is unable to confirm the existence of the confidential
relationship, the legislation is self-defeating in destroying an opera-
tional capability. One way to allow such prosecutions is to lengthen
the statute of limitations from 5 to 10 years, so that the employee or
agent may continue his operations as long as possible. This preserves
the Government's option to prosecute for a reasonable period.
The term "whoever" used in several bills should and would seem to
include artificial persons, but this may be easily clarified in the bill or
the committee report. Similarly, the words "knowingly," "intention-
ally," and "willfully" are used in various versions to modify the oper-
ative verb disclose. There appears to be little legal difference between
these; any one could convey the desired intent.
Protection should be extended beyond the CIA to any agency of the
U.S. Government engaged in foreign intelligence activities; extending
protection in this legislation even further to domestic law enforcement
officers creates unnecessary problems.
The Moynihan bill effectively contains the requirement of proving a
specific intent as an element in the prosecution of a principal. In the
Bentsen bill, the absence of such a specific intent in the definition of
the crime leads to a list of exceptions-section (b) of S. 191-which
may not be complete. This bill also says that prosecution "shall be
barred," a confusing and legally imprecise term.
The administration bill could reach attempts to disclose, bringing
with it problems of determining why the attempts failed and the dif-
ferences between legal and factual impossibility. The erroneous iden-
tification of a person as an agent could thus theoretically be punishable
even though reaching such disclosures is not the primary intent of the
bill.
Finally, the Moynihan bill is drafted as an amendment to the Na-
tional Security Act of 1947. It thus preserves and expands the existing
statutory charter of the intelligence agencies and continues the inter-
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pretation of that act by the courts, the Comptroller General, and the
executive branch. It is therefore the most logical form for this neces-
sary and desirable legislation to take.
Thank you.
[The prepared statement of Raymond J. Waldmann, follows:]
PREPARED STATEMENT OF RAYMOND J. WALDMANN, ESQ., OF SCHIFF HARDIN &
WAITE
It is a pleasure to appear before the Committee today to support the passage
of legislation to protect the identities of intelligence officers and agents. I served
as Deputy Assistant Secretary of State from 1973 through 1975 and assisted
President Ford in his review of the intelligence community in late 1975. In
the last year, I have been a consultant to the American Bar Association Stand-
ing Committee on Law and National Security.
In my March 27, 1980. testimony on the intelligence charter, I discussed the
activities of the Standing Committee and the ABA's procedures for arriving
at positions on substantive issues. As in the case of a comprehensive intelligence
charter, the ABA has not adopted a position with respect to agent identity legis-
lation, and thus this statement does not reflect an official ABA position on the
issue. The ABA Standing Committee's Advisory Group on Intelligence Legisla-
tion, which I chair, reported on May 6 to the Standing Committee on various
proposals.
It should be self-evident that an intelligence agency must be able to operate
in secrecy, to provide reasonable protection to those who cooperate with it, and
to defend itself against those who attack it. The report discussed briefly the
inadequacies in present espionage laws and their enforcement in achieving these
goals. Earlier Congressional hearings have provided examples of the need for
new legislation. Protection of identities is necessary not only to protect the
lives of intelligence officers and agents but also to protect intelligence operations.
The difficulty in this area is not in deciding what to do, but in deciding where
to stop. Legislation in the area will be regarded by some as potentially eroding
the First Amendment protection of free speech, and therefore it must be care-
fully drawn. It must be sufficiently narrow and precise to withstand Consti-
tutional challenge, yet broad enough to deter unacceptable acts and general
enough to allow for unforeseen situations and circumstances. For example,
laws in analogous areas, such as those prohibiting the utterance of threats, have
been found Constitutional. The Moynihan Bill appears carefully drafted to
satisfy these needs.
In considering these various legislative proposals. this Committee will have
to take a position on a very important issue. The case of the government em-
ployee who discloses classified identifying information raises little controversy.
And all proposals propose punishment in such a case. More difficult is the ex-
tension of criminal sanctions to the following situations :
(a) Identification made through analysis of publicly available information
by former government employees with special expertise gained during their
employment ; and
(b) The republications of identifications by the press or journalists, who
come into possession of the information through an intermediary.
On the one hand, the risks of such extensions are obvious. The possibilities
of harassment, censorship and the chilling effect on free speech in the name of
agent protection should not be discounted. The prohibition of these possibilities
is what the First Amendment is all about. On the other hand, the First Amend-
ment is not absolute ; its protections must be weighed against other interests.
Those interests include at least the protection of human life and may extend,
in extreme cases, to national security.
Given the very real practical problem of adequately dealing with the gov-
ernment leaker, serious consideration must be given by this committee to the
extension of liability to those outside government who disclose identifying in-
formation with the requisite intent to impair or impede our foreign intelligence
activities. Provisions to accomplish this in the bills before the Committee are
sections 501(a) and 502(b), and section 501(b) of the Moynihan Bill; section
701(c) of the Administration Bill; and section 1127(a) (2) of Amendment No.
1682 to and S. 1722 offered by Senator Simpson.
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The Simpson formulation is troublesome in that it imports law enforcement
concepts into intelligence activities in attempting to extend protection to FBI
and other law enforcement officials, and is less precise than the Moynihan or
Administration versions. The Administration version is too broad, punishing
attempts to disclose information. The Moynihan formulation is technically less
troublesome, allowing the government to plug leaks after the fact. It does so
within acceptable limits since the Moynihan Bill requires a specific intent for
prosecuting either the principal or the accessory, thus minimizing the adverse
effects of attempting to plug such leaks.
It is important to note that some forms of accessorial liability may be found
under section 501(a) of the Moynihan Bill even if section 501(b) is not re-
tained. Under section 502(b), those who "cause" a felony (aiders and abettors
and accessories before the fact, as described in section 2 of Title 18 U.S.C.),
those who fail to report a felony (misprisioners as described in section 4 of
Title 18), or those who conspire (18 U.S.C. ? 371) could be reached if they had
the requisite intent to impair or impede foreign intelligence activities.
It is useful to examine how these provisions might be applied. The Spring
1980 issue of "CounterSpy" contains, on page 36, a list of four names with brief
biographical information under the heading : "The following officials, presently
assigned to the U.S. Embassy in Kabul, are CIA officers." Presumably, if these
identifications are accurate, a CIA personnel officer could so testify at a trial.
Since the Embassy titles ("Attache," "Second Secretary," etc.) are also given
by "CounterSpy," it is evident that the U.S. is taking affirmative measures to
conceal these individuals' intelligence relationship and that they are serving out-
side the U.S., two elements of proof required under the Moynihan Bill. To be
reached as an accessory, misprisioner or co-conspirator, however, requisite in-
tent to impair or impede must be found. In its editorial on page 2 of the same
issue, "CounterSpy" provides the evidence, saying :
"Given the CIA's disregard of the law and its enormous record of consciously
committed crimes it is folly, at best, to talk of reforming the CIA. The only
acceptable, humane response is to work for the abolition of the CIA. Accord-
ingly, CounterSpy, as we have stated in the past, fully supports the abolition of
the CIA."
Thus, I believe, "CounterSpy" could be prosecuted either under sections 501
(a) and 502, as an accessory or an aider or abettor, or under section 501(b),
directly as a principal. A significant difference, however, is that under the for-
mer prosecution, complicity with a person who had authorized access would also
have to be shown.
It is worth noting in passing that similar reasoning could be applied to the
"Covert Action Information Bulletin." In its June 1980 issue's section entitled
"Naming Names" on pages 29-34, it purports to identify 40 CIA officers and one
Pentagon intelligence chief. In both these cases, whether true or not, individuals
in highly volatile parts of the world such as Afghanistan have had their lives
placed in jeopardy. If true, these identifications may also have obviously hin-
dered intelligence operations. Such an activity should not be protected.
A few other comments may be helpful in the Committee's work. If the prose-
cution is unable to confirm the existence of the confidential relationship, the
legislation if self-defeating in destroying an operational capability. One way
to allow such prosecutions is to lengthen the statute of limitations from 5 years
to 10 years, so that the employee or agent may continue his operations as long
as possible. This preserves the government's option to prosecute for a reasonable
period.
The term "whoever" used in several bills should and would seem to include
artificial persons, but this may be easily clarified in the bill or the Committee
report. Similarly, the words "knowingly," "intentionally," and "willfully" are
used in various versions to modify the operative verb disclose. There appears
to be a little legal difference between these ; any one could convey the desired
intent. Protection should be extended beyond the CIA to any agency of the U.S.
government engaged in foreign intelligence activities ; extending protection in
this legislation even further to domestic law enforcement officers creates un-
necessary problems.
The Moynihan Bill effectively contains the requirements of providing a specific
intent as an element in the prosecution of a principal. In the Bentsen Bill, the
absence of such a specific intent in the definition of the crime leads to a list of
exceptions (section (b) of S. 191) which may not be complete. This Bill also says
that prosecution "shall be barred," a confusing and legally imprecise term.
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As pointed out on page 65 of the Advisory Group's report (attached), the Ad-
ministration Bill could reach attempts to disclose, bringing with it problems of
determining why the attempt failed and the differences between legal and factual
impossibility. The erroneous identification of a person as an agent could thus
theoretically be punishable even though reaching such disclosures is not the
primary intent of the Bill.
Finally, the Moynihan Bill is drafted as an amendment to the National Secu-
rity Act of 1947. It thus preserves and expands the existing statutory charter
of the intelligence agencies and continues the interpretation of that Act by the
courts, the Comptroller General and the Executive Branch. It is therefore the
most logical form for this necessary and desirable legislation to take.
EXCERPT FROM DISCUSSION DRAFT REPORT ON INTELLIGENCE CHARTER LEGIS-
LATIVE PROPOSALS TO THE ABA STANDING COMMITTEE ON LAW AND NA-
TIONAL SECURITY FROM THE ADVIsoRY GROUP ON INTELLIGENCE LEGISLATION
5. PROTECTION OF AGENT'S IDENTITIES
Introduction.-Precipitated by media publication of the names of intelligence
operatives which allegedly led to attempts on their lives, the proposed charter
and related legislative proposals contain provisions to criminalize the disclosure
of information leading to such identification. The proposals have raised, in the
minds of some, serious issues concerning freedom of speech and of the press ; at
the same time, the proposals incorporate a legitimate concern to protect the
effectiveness of covert intelligence agents and their sources. It is argued by some
that the provisions could serve to stultify legitimate critical expression by
former intelligence agents and expository investigative reporting by the press,
particularly by non-"mainstream" reporters.
Present Law.-The government (Department of Justice) contends that the
disclosure of such identities is presently prohibited by 18 U.S.C., ?? 793(d) and
(e), but admits that they have not been so applied in practice. It is felt by some,
however, that there are both inadequacies in the statute and a lack of enforce-
ment. The former section prohibits persons with lawful access to certain docu-
ments relating to the national defense, or "information relating to the national
defense which information the possessor has reason to believe could be used to
the injury of the United States or to the advantage of any foreign nation," from
willfully communicating or attempting to communicate such documents or infor-
mation to a person not lawfully authorized to receive it. The latter section
extends the same prohibition to persons who were not authorized to come into
possession of the information in the first place. Substantive violations, attempts,
and conspiracies carry a punishment of $10,000 and/or 10 years.
Moynihan Proposal (S. 2216).-Section 4 of the bill prohibits persons with
authorized access to classified information which identifies a covert intelligence
agent, informant or source from intentionally disclosing any information to an
unauthorized recipient, knowing or having reason to know that the information
(including even unclassified information) disclosed serves to identify a person
as a covert agent whose status as such was detailed in the classified information,
when the government is trying to conceal such identification. Punishment is
$50,000 and/or 10 years. A second provision punishes anyone who, with "intent
to impair or impede the foreign intelligence activities of the United States"
similarly discloses such information, with punishment of $5,000 and/or one year.'
Hence, the Moynihan proposal differentiates, in the main, between government
employees 2 and others. In addition, the bill proposes to lessen the impact on
nongovernment persons by restricting accessorial criminal liability under either
provision only to persons who were accessories or co-cospirators with "intent to
impair * * * foreign intelligence activities * * *" and by providing that such
intent cannot be inferred from the fact of disclosure alone. Prior government
disclosure of the information is a defense. Attempts are not criminal.
Huddleston Proposal (S. 2284).-Section 701 of the bill is identical to the first
substantive proposal by Senator Moynihan and carries the same punishment,
but all accessorial criminal liability is specifically decriminalized. Hence, the bill
creates a pure status offense pertaining only to persons with authorized access
1 Sen. Moynihan has subsequently disavowed this provision.
z This term, as used here, includes those with authorized access.
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to the information ; i.e., mainly government employees. Attempts are not punish-
able and prior government disclosure is a defense. In a recently considered shorter
draft version of the Huddleston bill, this provision continues to survive in almost
unaltered form.
Administration Proposal (testimony of ADAG R. L. Keuch before House Select
Committee on Intelligence of January 30, 1980.-Under the first section, dis-
closure to an unauthorized recipient of any information that serves to identify a
covert agent by anyone, with knowledge that the information is based on classi-
fied information, or attempts so to do, are punishable by $50,000 and/or 10 years.
Under the second section, disclosure to an unauthorized recipient of any informa-
tion which correctly identifies a covert agent, by a present or former government
employee with access to any information that reveals the identities of covert
agents, or attempts so to do, are punishable by $25,000 and/or 5 years. Acces-
sorial liability is unrestricted and prior government disclosure is not explicitly
incorporated in thebill as a defense.
Arpin Proposal (H.R. 6820).-Section 202 of the bill, like Huddleston, criminal-
izes only the conduct of persons with authorized access to classified information ;
i.e., government employees in the main. The bill specifically provides for a pure
status offense by decriminalizing accessorial liability. It contains no provision
for punishing attempts. The punishment is $50,000 and/or ten years. The pro-
posal prohibits a government employee with authorized access to classified in-
formation which identifies a covert agent, informant or source from disclosing
any information which serves to identify a covert agent, informant or source.
In this respect, the bill is substantively, but texturally, similar to Moynihan's
proposal. In addition, the bill would prohibit a government employee from using
such unclassified special knowledge gained from classified information to iden-
tify agents, informants and sources not identified in the classified information, if
he discloses his conclusions to another. In this respect, the bill is substantively
similar to the Administration's proposal. Prior government disclosure is a
defense.
Discussion.-The present statute makes no distinction between disloyal govern-
ment employees and others who come into possession of identifying information.
Disclosure of information other than documents relating to the national defense
is punishable, however, only if there is the requisite scienter, which may be
difficult to prove. Present law appears restricted only to disclosure of classified
information itself. All four proposals for legislation have extraterritorial applica-
tion and are not restricted to the disclosure of classified information.
Of them, the Administration's proposal is the most expansive. It criminalizes
even disclosure of unclassified information, including arguably information made
public inadvertently by the government or supplied by foreign governments or
nationals to American nationals, as happened in Iran, if the defendant has knowl-
edge that his information "is based" on classified information. Because the pro-
posal also punishes attempts, and since with respect to attempts the line between
legal and factual impossibility is murky at best, it is entirely conceivable that
even an erroneous identification of another as a covert agent may be punishable.
In essence, the Administration's proposal covers with a shroud of secrecy any-
thing that may be related to classified information, as long as the information
incidentally identifies an agent.
Under the second offense, the Administration's proposal also punishes govern-
ment employees who, by nature of their occupations, are able to analyze unclassi-
fied information and thus identify covert agents. And this is so even though
the employee may not have gained his special knowledge through classified
information. For example, a GSA clerk who reads declassified OSS reports
from World War II during his lunchbreak and learns that commercial attaches
at American embassies abroad are usually intelligence officers, would be prose-
cutable if he tells his girlfriend. What is most remarkable about the Adminis-
tration's proposal is that it criminalizes without requiring an intent which is
arguably inimical to our national interests. This proposal, if enforced according
to its terms, could serve to stifle perfectly legitimate public criticism of the
intelligence community.
The Moynihan proposal, in its first provision, appears to be a reasonable at-
tempt to deal with the problem. The proposal attacks the root of the problem ;
i.e., loose-lipped government employees and those who induce government em-
ployees to violate their trust. Moynihan's proposal also ties unclassified Informa-
tion disclosed to the classified information to which the offender had access.
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Moynihan's proposal becomes problematical, however, when it seeks to punish
as misdemeanants, non-government persons who have the "intent to impair or
impede the foreign intelligence activities of the United States." While such an
intent may be reprehensible, the Moynihan proposal subjects such persons to
misdemeanor punishment even if the information which they gained is unclassi-
fied. In effect, the second provision of the Moynihan proposal allows the govern-
ment to plug leaks after the fact. While there is merit in this approach from
the standpoint of national security, it does not appear wise to criminalize con-
duct of this nature, given the fact that this conduct involves speech.
The Huddleston proposals closely track the first provision of the Moynihan bill
without, however, the provision for accessorial liability. In this aspect, the
Huiddleston bills appear unduly restrictive. Those who induce a government
employee to violate his trust, with "the intent to impair or impede the foreign
intelligence activities of the United States," should be punished as accessories.
The Aspin proposal, in precluding accessorial liability for those who induce
government employees to violate their trust, also appears unnecessarily restric-
tive. In part, the proposal can be viewed as a viable alternative draft to the first
provision of Moynihan. However, in seeking to accommodate the Administration's
desire to preclude former government employees from using their specialized
knowledge to make identifications, the bill may be unduly expansive, although
in this regard, the specialized knowledge is more closely tied to access to
classified information than it is under the Administration's proposal.
Recommendation.-The Committee should examine the need to modify the
present law to improve its clarity. In addition, the type of conduct to be covered
should be addressed. If it is decided that action is required, then, because of its
provision concerning accessorial liability, at least the first provision of the
Moynihan proposal appears to merit support.
Chairman B AYH. Thank you very much, Mr. Waldmann, for an
analytical assessment of the terminology and the specific criteria
established in the bill. This will be very helpful to us as we try to
make certain of accomplishing what we want to accomplish, not too
much nor too little. I don't think I have any questions. The statement
speaks very well for itself.
Senator Durenberger?
Senator DURENBERGER. I have no questions, Mr. Chairman.
Chairman BAYH. Thank you very much. We appreciate your
assistance.
Our next witness is Mr. Ford Rowen, an attorney and former NBC
correspondent.
It is good to have you with us.
TESTIMONY OF FORD ROWAN, ATTORNEY, AND FORMER NBC
CORRESPONDENT
Mr. ROWAN. It is good to be here. If you want, I will be glad to
shorten this considerably.
Chairman BAYTI. Whatever you see fit.
Mr. ROWAN. Mr. Chairman, I appreciate the invitation to testify.
When I was called, I remembered a statement attributed to Bismarck.
He warned that national security would be imperiled if certain things
were not shielded from the average citizen. Bismarck said the citizen
should not see how laws are made nor should he see how sausages are }
made. Perhaps we are discussing the American equivalent of sausages
today.
I fully sympathize with the desire of the CIA to protect its agents,
and the FBI to protect its informants. snd the NSA to protect its
sources and methods, and the DIA. the DEA, the IRS. and any other
agency that must use confidential sources covertly in order to perform
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its mission. It might surprise you to hear that from someone who has
reported on some of these secret activities, but reporters also must have
confidential sources to do our jobs well.
I am willing to go to jail to protect the identity of a source who
gives me information, so I can understand why the CIA wants to
send someone to jail if he reveals the identity of one of the agency's
agents.
Furthermore, I sympathize with the desire to shield American
intelligence officers and agents from publicity which could endanger
their lives. However, I have serious reservations about whether this
proposed legislation would prove to be effective. Moreover, parts of
the proposal seem to be unconstitutional.
With your permission, I will summarize the remainder of my
remarks.
Chairman BAYH. We will ask that your entire statement be put in
the record. Thank you.
Mr. ROWAN. In looking at various proposals, I see two targets : first,
an insider with legal access to secrets who discloses identities or covert
relationship, and second, an outsider who is not supposed to know
the secret information but has found out and shares it with others. As
for the first category, I think Congress is within its power to legislate
these penalties. Congress can tell Government employees they cannot
divulge classified information.
My only problem with it is that I don't think it will work. Some
people will leak information, no matter what the rules and no matter
what the penalties. An insider who feels strongly enough that a
clandestine operation is wrong and is willing to disclose it probably
will base his decision on whether to also name names on reasons
unrelated to potential criminal penalties.
My main concern, however, is with the second category of potential
offenders, the outsiders. My objections are strenuous because the
category would include all of us-the press and individuals who have
never taken a secrecy oath.
Unlike CIA or military intelligence officers, reporters have not
taken an oath of secrecy and Congress should not try to force reporters
to take a secrecy oath. Reporters would violate their responsibility as
disseminators of information when they are forced to keep secrets
rather than to evaluate whether to release or publish what they have
learned.
We have to face one fact. Most reporters just usually don't come
across this kind of information. A few pursue it and few really want
to name names at all. In my coverage of intelligence activities and
covering this committee and writing a book about electronic surveil-
lance and privacy, I found almost no occasion to name names. In no
case did I name a name that had not been officially released. I think I
am not unlike a lot of other reporters who did basically the same thing.
We can make the worst case where the reporter is a traitor. But let
us look at an example where disclosure of names might be in the public
interest. We can all remember the uproar over alleged assassination
plots against foreign leaders. When it became known that the CIA had
engaged in such plots, there was disagreement between public officials
over whether such activities were ordered from the White House or
whether the agency was acting as a rogue elephant out of control.
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The public had an important stake in the answer to that question.
Official investigators recognized the importance of identifying some
of the intel officers involved and some names were made public.
One might argue that certain disclosures could be made by the press
under this legislation provided the reporter was not intending to im-
pair or impede the foreign intelligence activity of the United States.
While inclusion of the intent provision in some of these proposals is
an improvement over the CIA's recommended language, it would not
solve the dilemma posed by the example above. Reporters who got
names, who named the names to get at the truth about the assassina-
tion plots usually were opposed to such plots and wanted to assure
that they did not recur.
People who revealed such plots and the plotters wanted to impair
this form of intelligence activity. Most reporters may have hoped the
disclosure would have helped the U.S. regain its moral stature and
regain the respect it had lost in the world and retain a steady hand
over covert operations, but still they wanted to impair and impede this
one type of intelligence activity.
I am sure the committee has an understanding of some of the other
types of intelligence activities that ought to be impaired because those
activities impaired civil liberties of American citizens.
In addition to the disclosure of the assassination plots, we can think
of the drug experiments and spying on law-abiding American citizens
whose disclosure has helped our Nation's interest in preserving free-
dom at home.
In sum, it is a mistake to decree that all foreign intelligence activi-
ties of the United States equally merit secrecy. Some should be ex-
posed, disowned, and dismembered. Congress should not pass legisla-
tion that would interfere with the first amendment right to expose
illegal, immoral, and unethical conduct.
Mr. Carlucci testified before the House Intelligence Committee that
reporters who disclose secret information would only be prosecuted
if they embarked on a crusade to destroy the intelligence activities of
this country but the legislation recommended by Director Turner
would open the door for wholesale prosecutions of a broader class of
offender. Instead of requiring proof of intent to harm intelligence ac-
tivities, Turner's proposal would punish anyone who discloses such in-
formation as long as he had knowledge that his disclosure is based on
classified information.
If the reporter knows the identity of a secret agent and knows it is
a secret, he would be liable if he published it.
The CIA proposal talks of protecting "successful and efficient for-
eign intelligence activities," but our Nation has always been willing
to sacrifice some efficiency to protect democracy and freedom.
On overly broad criminal provision giving the CIA bureaucrat with
a secret stamp, the power to stamp out free expression is too big a
price to pay for efficiency.
I do not think that any of these proposals, whether containing the
intent provision or not, will successfully stop the disclosure of names.
If the Government cannot stop disclosure of atomic secrets, I doubt
that it can stop disclosure of the names of some of its spies. Spilling
atomic secrets seems much more threatening to national survival.
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I mention that case because there are parallels here. It is relevant
to our discussion today because the bill would punish a reporter who
combs through open sources such as biographical registers, to iden-
tify covert officers. The Government extracts a high price from jour-
nalists when it seeks to punish them for revealing what the Govern-
ment itself was too inept to keep secret.
It is well known that for years it was possible to identify CIA per-
sonnel on embassy staffs by checking State Department registers. The
Government itself made it easier for outsiders to figure out the identi-
ties of CIA operatives. So before you try to punish the outsiders I
think you could tighten secrecy and use more care in choosing those
those who will know the secrets.
That is the path I would recommend for you : strengthening the
internal processes for intelligence agencies while avoiding new pro-
hibitions which would unconstitutionally interfere with freedom of
the press.
Democracy works best that knows most.
Some conflicts between the press and government are healthy-
symptomatic of a dynamic society with competing values. An inde-
pendent press with watchdog functions, the tradition of open criticism,
the disclosure of corruption, the reform of institutions-these all con-
tribute to a vibrant society.
Society-the public-pays a price when Government attempts to
seal off part of its activities from public view. In some cases the courts
have sided with national security, due process and privacy rights in
limiting access to information by the media. In other cases the courts
have evaluated, then decided against, claims that publication of cer-
tain information would harm the national security.
First amendment guarantees may not be absolute, but they should
be tampered with only very cautiously. These proposals are unneces-
sary, unworkable, unconstitutional.
I am reminded of the statement by Archilocus, the Greek poet, that
"the fox knows many things, but the hedgehog knows one big thing."
It is easy to understand how the hedgehogs of intelligence burrowing
in pursuit of their goals would resent the foxes of the press.
The reality of the world we live in forces us to have hedgehogs.
The ideal of the democracy we cherish requires that we tolerate the
foxes as well.
Thank you, sir.
The prepared statement of Ford Rowan follows:]
PREPARED STATEMENT OF FORD ROWAN, ON PROTECTING COVERT AGENTS
s Mr. Chairman, I appreciate the invitation to testify. When I was called I
remember a statement attributed to Bismarck. He warned that national security
would be imperiled if certain things were not shielded from the average citizen.
Bismarck said the citizen should not see how laws are made nor should he see
how sausages are made. Perhaps we are discussing the American equivalent of
sausages today.
I fully sympathize with the desire of the CIA to protect its agents, and the
FBI to protect its informants, and the NSA to protect its sources and methods,
and the DIA, the DEA, the IRS, and any other agency that must use confidential
sources covertly in order to perform its mission. It might surprise you to hear
that from someone who has reported on some of these secret activities, but
reporters also must have confidential sources to do our jobs well.
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110
I am willing to go to jail to protect the identity of a source who gives me
information, so I can understand why the CIA wants to send someone to jail
if he reveals the identity of one of the agency's agents.
Furthermore, I sympathize with the desire to shield American intelligence
officers and agents from publicity which could endanger their lives. However, I
have serious reservations about whether this proposed legislation would prove
to be effective. Moreover, parts of the proposal seem to be unconstitutional.
I would like to begin with a story that was told to me by one of the people this
bill seeks to protect. This man fought for his country as a pilot, obtained a
doctorate, and served as an intelligence officer. He is a perfect combination of sol-
dier, scholar, and spy. I will never forget one encounter with this man during
the period when two Congressional committees were investigating alleged assas-
sination plots directed against foreign leaders.
"Let me tell you the story about the dead man who went seeking a decent
burial," my CIA source said. It was a simple story about a fellow who tried to
arrange for his own burial because he claimed, "I've been dead for two weeks."
A priest and then a doctor were called in, but both failed to shake the poor fel-
low's conviction that he had already died.
Finally, the CIA man recounted, the doctor turned in desperation to logic.
"My man, isn't it true that a corpse that's been dead for two weeks cannot bleed?
the Doctor asked. When the fellow agreed the doctor took a little knife and
knicked the fellow's hand and, of course, it bled. "See," the doctor said, "You're
bleeding."
"Well what do you know," the fellow answered, "corpses do bleed."
My CIA source told that story to point out that different people can look at the
same facts and reach very different conclusions. Everyone processes information
through his own frame of reference, his own mind set, his world view. Facts
which do not fit preconceived notions or rub against deeply held attitudes often
are rejected or cause conflict in the eye of the beholder.
This CIA officer mentioned two samples. The civil rights demonstrations contra-
dicted the bigoted view of many whites. The pictures of American soldiers burn-
ing civilians' homes in Vietnam did not match our view of ourselves as honorable
victors. Turmoil resulted in both these cases when new realities confronted old
attitudes.
I have always tried to keep in mind how important perceptions can be when
news is communicated. Let's say that the House Intelligence Committee releases
a report that outlines some analytical failures by the CIA. Aside from the written
report, my story would be based on comments by committee "members, staff, CIA
officials, and intelligence consumers at the White House. Each would speak from
his own perspective. When I would write my story my own attitudes would
assert themselves no matter how hard I tried to be objective. Then my editors
and producers would get a whack at the story. Finally, when the listeners heard
the story each would interpret it from his own perspective-that means millions
of perspectives.
So is it any wonder that many people may have very different impressions
after listening to that story-far different from those intended by the committee
members when they voted on the report?
In a pluralist democracy uniformity of thought is no virtue. But agreement
about the facts encourages wiser public understanding of events, wiser choices
between competing goals. Put another way, clarity in the description of a problem
permits advocates of varying approaches to work out better solutions. Or, as a
former Director of Central Intelligence, James Schlesinger, is quoted as saying,
"Everyone is entitled to his own opinion, but not to his own facts."
I'd like to start with some facts about news reporting. I have been a reporter
for 15 years, eleven of them in Washington. After I resigned from NBC News
in December I became a Visiting Associate Professor of Journalism at North-
western University. In April I joined the law firm of Sanford, Adams, McCul-
lough, and Beard, a North Carolina firm, as their counsel in Washington. As a
lawyer I am specializing in First Amendment and communications law.
I am not out of the news business, however. I am doing some work as a com-
mentator for the Independent Network News, a new organization which now
has 27 affiliated television stations around the country. While it is not always
easy to pursue both legal and news activities, for the purpose of discussing the
subject matter before this committee today I may have a unique perspective.
I believe strongly in responsible journalism. I resigned as NBC's Pentagon
correspondent in a dispute over editorial policy; I felt NBC was irresponsible
in providing an unedited prime time propaganda platform to terrorists when
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the network agreed to broadcast an interview with one of the hostages in Iran
last December.
Episodes of terrorism require self-restraint by journalists. So too does today's
subject demand restraint so that lives are not jeopardized needlessly.
I first became involved in covering the CIA and other intelligence agencies
in 1974 for NBC News, and most of my time until early 1978 was devoted to
this subject. In 1978 my book about surveillance and privacy, "Technospies,"
was published by Putnam's.
During the course of the investigations of these agencies I learned both the
best and the worst about the people who serve their country in the intelligence
community. Most of them are honest, intelligent, patriotic. Some, however, fit
this description : ". . men of zeal, well-meaning, but without understanding."
That quote is from Justice Brandeis who warned that "the greatest dangers to
liberty lurk in the insidious encroachment of men of zeal, well-meaning, but
without understanding."
The disclosures of recent years, although widely condemned by some as under-
mining the effectiveness of the CIA, may actually have helped intelligence of-
ficers regain an understanding of their duty within the constitutional frame-
work. Publication of the investigative findings may have contributed to a
healthier intelligence community by refocusing its attention on its proper role
and deemphasizing the undue stress on covert operations, some of which were
directed against law-abiding American citizens.
It was a challenge to cover the probes of the CIA, FBI, NSA, IRS, and mili-
tary intelligence units. In the race to dig up the dirt about drug experiments,
assassination plots, and domestic spying, there was always the danger that re-
porters, too, would become zealots who meant well but lacked the necessary
understanding to fit the stories into a broader perspective.
I say this to try to convey what some public officials may doubt, that reporters
believe in many of the same values as you. The First Amendment confers enor-
mous power upon journalists and most of us feel that the responsibilities are
also enormous. Most of us are patriots, but the day is past when simply waving
the flag will convince a reporter or editor to kill a story without exceptionally
compelling reasons.
Too many reporters have seen the phrase "national security" used to try to
hide embarrassing and illegal conduct by government agencies.
In covering intelligence activities a reporter had to exercise judgment when
deciding which way to direct his investigatory efforts, in deciding which facts to
stress or omit, when deciding which activities should be disclosed. For example,
when I broadcast the first story about computerized electronic surveillance by
the National Security Agency in 1975 I felt that the domestic spying, directed
by an agency involved in foreign intelligence gathering against American
citizens, was so newsworthy that disclosure outweighed any arguments about
sensitive sources and methods being compromised. I cite this example because
it was a hard case and one that could still spark disagreement today.
I realize that intelligence officers and many public officials feel very uncom-
fortable knowing that journalists-unelected and sometimes unwashed-sit in
judgment on their conduct. Aside from reminding you that this is a result of
the First Amendment, I would like to stress that most American 'journalists try
to make responsible judgments. Most try to balance competing values. Most do
not favor disclosure for disclosure's sake. Few want to damage their nation's
true security interests. Of course, others fall back on the old idea of letting
the chips fall where they may. And some just don't give a damn, perhaps a few
hate this country.
But I know enough reporters to feel secure in testifying that most do not
want good news stories to produce bad results.
I can understand how this committee would want to legislate a halt to some
bad results. Few of us want to see an intelligence operative's life endangered
by having his cover blown, or to see an ongoing covert operation derailed, or
to see future sources of information dry up for fear of exposure. At the com-
mittee's invitation I have examined the proposed legislation to make it a crime
to reveal the identity of a clandestine American intelligence officer or his agent.
I have tried my best to avoid letting where I sit (in the press gallery) deter-
mine where I stand on this issue. But as a journalist I cannot consider this
legislation without becoming concerned about preserving First Amendment
rights. (Although I am also a lawyer, I will leave the legal evaluation of this
legislation to more expert witnesses.)
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In looking at the various proposals I see two targets : First, an insider with
legal access to secrets who discloses an identity or a covert relationship, and
Second, an outsider who is not supposed to know this secret information, but
having found out, shares it with others.
As for the first category, I think Congress is within its power to legislate these
penalties. Congress can tell government employees they cannot divulge classified
information. My only problem with this is that I do not think it will work. Some
people will leak information no matter what the rules, no matter what the penali-
ties. An insider who feels strongly enough that a clandestine operation is wrong
and is willing to disclose it probably will base his decision on whether to also
name names on reasons unrelated to potential criminal penalties.
As for the second category of potential offender my objections are much more
strenuous. This category would include the press. Unlike CIA or military intel-
ligence officers, reporters have taken no oath to keep secrets. Congress should
not-in effect-try to force reporters into a secrecy oath. Reporters violate their
responsibility as disseminators of information when they are forced into keeping
secrets rather than permitted to evaluate whether what they have learned should
be published.
Let's face it : most reporters just do not usually come across this type of in-
formation, few pursue it, and very few want to name names at all. We can imagine
a worst case, where the reporter is a traitor. But let's look at an example where
disclosure of names might be in the public interest. Remember the uproar over
alleged assassination plots against foreign leaders a few years ago. When it be-
came know that the CIA had engaged in such plots there was disagreement be-
tween public officials over whether such activities were ordered from the White
House or whether the agency was acting as a rogue elephant out of control. The
public had an important stake in finding the answer to that question. Official
investigators recognized the importance of identifying the intelligence officers
involved and many names were made public.
Some might argue that certain disclosures could be made by the press under
this legislation provided the reporter was not intending to impair or impede the
foreign intelligence activities of the United States. While inclusion of the intent
provision in some of these proposals is an improvement over the CIA's recom-
mended language, it would not solve the dilemma posed by the example listed
above. Reporters who named names to get at the truth about the assassination
plots usually were opposed to such plots and wanted to assure they did not recur.
People who revealed such plots and the plotters wanted to impair this form of
intelligence activity. Most reporters may have hoped that disclosure would help
the United States regain its moral stature, regain some of the respect it had lost
in the world, regain a steady hand over covert actions, still they wanted to impair
and impede this one type of intelligence activity.
And this committee has a full understanding of some of the other types of
intelligence activities that ought to be impaired because they impaired the civil
liberties of American citizens. Disclosure of assassination plots, drug experiments,
spying on law abiding American citizens has helped our nation's interest in pre-
serving freedom at home.
In sum, it is a mistake to decree that all foreign intelligence activities of the
United States equally merit secrecy. Some should be exposed, denounced, dis-
membered. Congress should not pass legislation that would interfere with the
First Amendment right to expose illegal, immoral, and unethical conduct.
Deputy Director Carlucci testified before the House Intelligence Committee
that reporters who disclose this secret information would only be prosecuted if
they "embark upon a crusade" to destroy the intelligence activities of this coun-
try. But the legislation recommended by Director Turner would open the door for
wholesale prosecutions of a broader class of offender. Instead of requiring proof
of intent to harm intelligence activities, the proposal would punish anyone who
discloses such information as long as he had the knowledge that his disclosure is
based on classified information. If a reporter knows the identity of a secret agent
and knows it's a secret, he would be liable if he published it.
The CIA proposal talks of protecting "successful and efficient foreign intelli-
gence activities," but our nation has always been willing to sacrifice some effici-
ency to protect democracy and freedom. An overly broad criminal provision giv-
ing the CIA bureaucrat with a secret stamp the power to stamp out free expression
is too big a price to pay for efficiency.
But before you start thinking that inclusion of the intent provision cures these
problems, let me suggest that it could ensnare reporters who object to specific
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intelligence activities yet love their country while leaviilg loopholes for those who
hate America.
There are reporters outside the mainstream of responsible journailism who do
wish to harm their country. They may be able to sidestep the provision requiring
proof of intent to impair or impede the intelligence activities of the United States.
They would have to be less blatant in their anti-Americanism, of course, but they
could claim that the names were being made public to strengthen American in-
telligence activities by getting rid of covert types and freeing the money for more
analysis, for example. Such arguments from some critics would not be very per-
suasive, but it could complicate prosecution. If this seems farfetched to those of
you who have read Philip Agee's disclosures, let me remind you that as far as I
know Agee has never used the label "defector" to describe himself. My hunch is
that this bill is directed against Agee and the Covert Action Information Bulletin.
While he might be prosecuted as someone who had received authorized informa-
tion while employed by the CIA, to prosecute others would require proof of intent
under some of these proposals. My feeling is that a skillful propagandist would
be able to disguise his true intentions, perhaps sufficiently to discourage the Jus-
tice department from acting against him.
In short, the bill contains loopholes for traitors but could ensnare patriotic
reporters who criticize certain intelligence activities.
Frankly, I do not think that any of these proposals-whether containing the
intent provision or not-will successfully stop the disclosure of names. If the
government cannot stop disclosure of atomic secrets I doubt that it can stop dis-
closure of the names of some of its spies. Spilling atomic secrets seems much more
threatening to national survival.
The H bomb article was based in part on unclassified information available in
government libraries open to the public. That's relevant to our discussion today,
because this bill would punish a reporter who combed through open sources such
as biographical registers to identify covert officers. The government extracts a
high price from journalists when it seeks to punish them for revealing what the
government itself was too inept to keep secret.
It is well known that for years it was possible to identify CIA personnel on
embassy staffs by checking State Department registers. The government itself
made it easier for outsiders to figure out the identities of CIA operatives. So be-
fore you try to punish the outsiders I think you could tighten secrecy and use
more care in choosing those who will know the secrets.
That is the path I would recommend for you: strengthening the internal proc-
esses for intelligence agencies while avoiding new prohibitions which would un-
constitutionally interfere with freedom of the press.
Democracy works best that knows most.
Some conflicts between the press and government are healthy-symptomatic of
a dynamic society with competing values. An independent press with watchdog
functions, the tradition of open criticism, the disclosure of corruption, the reform
of institutions-these all contribute to a vibrant society.
Society-the public-pays a price when government attempts to seal off part
of its activities from public view. In some cases the courts have sided with na-
tional security, due process and privacy rights in limiting access to information
by the media. In other cases the courts have evaluated, then decided against,
claims that publication of certain information would harm the national security.
First Amendment guarantees may not be absolute, but they should be tampered
with only very cautiously. These proposals are unnecessary, unworkable,
unconstitutional.
I am reminded of the statement by Archilocus, the Greek poet, that "the fox
knows many things, but the hedgehog knows one big thing." It is easy to under-
stand how the hedgehogs of intelligence burrowing in pursuit of their goals
would resent the foxes of the press.
The reality of the world we live in forces us to have hedgehogs.
The ideal of the democracy we cherish requires that we tolerate the foxes, as
well.
Chairman BAYH. Thank you, Mr. Rowan.
I have heard descriptive phrases to describe those who work in the
intelligence system. Hedgehog is a new one. I think you have been very
helpful in confirming some of the concerns I had earlier about the need
to distinguish carefully between those who are public servants charged
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with specific responsibilities, who have one set of responsibilities, and
those of you in the fourth estate have a different set of responsibilities,
a vital important role in our society.
Mr. ROWAN. Could I comment on the distinction between Govern-
ment employees and outsiders? I believe that the committee should be
very careful in forever consigning someone to the category of Gov-
employee. It is a very large class of people who have access
ernment
to confidential, secret or top secret information in this Government.
If this legislation is to pass and it does pass with broadly worded lan-
guage, it is conceivable that anyone who held any position, even unre-
lated to knowledge about covert operatives, could find himself covered
by this bill. For example, someone who worked for one of the adminis-
trations on the National Security Council staff and then left the staff
and years later was to become a reporter, journalist, an author of a
book, and was to write about something that he did not learn when
he was covered by the secrecy oath but later would publish it, I don't
think this committee would rush to put a lifetime ban on people who
served in the Government.
While I make that dichotomy and while I argue that point of view
for the press, I think we should show some concern that first-amend-
ment rights don't end when you sign the secrecy oath.
Chairman BAYS. I concur that there has to be direct relationship
as to how the individual got access to the information. I appreciate you
being here.
Senator Chafee?
Senator CHAFES. Thank you, Mr. Chairman.
I apologize that I was not here for all of your testimony, Mr. Rowan.
I just heard the last part.
Do I understand that your position is that we should not do anything,
we should leave the espionage statutes on the book but don't take any
separate action, even the action dealing directly with, say, Mr. Agee?
I was not here for some of the other witnesses but Mr. Abrams sug-
gested that we have a series of steps and we agreed on the first step.
You would not even do that?
Mr. ROWAN. I listened with great interest as you went through those
steps. I would say it is possible for this committee and certainly within
its responsibility if it wishes to pass legislation that would put crim-
inal penalties on people like Mr. Agee for disclosing identities of covert
operatives. You might do it and it might be a good thing to do it. I
think people will leak information anyway if they want to. My prin-
cipal
p l o oyeesbjection is only to including outsiders, non-Government em-
. That is the thrust of my testimony today, to not include every-
one else like the press. You can go after Government employees, that is
certainly within the power of the Government.
I think it is constitutional. I don't think frankly it is necessary. I see
in.this legislation an effort to get Mr. Agee and the Covert Action
Information Bulletin folks. I think it is directed just at them and a
few other people. I wonder about the utility of that kind of legislation
because I think those people are going to continue to do what they
are doing whether you pass laws against them or not.
I don't really know. I know it is politically possible to do something
to protect these covert operatives but I don't think frankly it is going
to work. I think it raises a lot of constitutional questions.
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Let me say furthermore, depending on how you write this legisla-
tion it is possible that aiders and abettors and conspirators from out-
side, for example, the press, could be included in the prohibitions,
could be subject to prosecution, even if it were only drawn to apply to
Government employees.
Suppose a reporter encourages a former Government employee to
divulge the names of some operatives so that the reporter can publish
them. Would he not be aiding and abetting? I would hope if you do
decide to pass this legislation that you exclude outsiders from its reach
specifically and say this bill does not apply to anyone who has not had
a Government secrecy oath.
I see a lot of problems even going down your steps. The short answer
to your question is that I would rather not do anything.
Senator CHAFEE. One of the last points I heard you make was that
under this you might catch somebody who had been a Government
employee many years before and then inadvertently reveals some in-
formation. What do you say about the attitude that we frequently
take here, and there are constitutional arguments back and forth, we
had them yesterday on a vote on aid to parochial schools? Finally
people say, after having constitutional arguments back and forth, after
all we have had the Justice Department testify exactly contrary to you
and Mr. Abrams on the constitutional issue, that we proceed and let
the Supreme Court decide it.
Mr. ROWAN. I think that is a denial of your duty.
Senator CHAFES. Are we to stay out of all waters that some say we
might be violating the Constitution if we pass this?
Mr. ROWAN. I was not advocating that. I think you should balance
the same kind of equities the Court would. We have a society with
competing values. The first amendment is not the only amendment to
the Constitution. Journalists have to think when writing stories about
whether the stories they are writing would undercut the society that
provides freedom of the press.
In evaluating all those things I am not urging you to run away from
the issue because it is a constitutional one. I have tried to offer you my
guidance on it as a person who has been involved in journalism and
who might see the world a little differently than you would and might
give insight in the way the reporters think because reporters do bal-
ance those concerns in their minds and some people come out differently
than others.
Senator CHAFEE. Your view is that the Agees of the world cause
problems but in the effort to regulate them we might be doing more
harm to the Republic?
Mr. ROWAN. I think that is accurate. I think something should be
remembered. I don't want to be placed in the role as defender of the
Covert Action Information Bulletin because frankly I don't find their
output very good but I must say that running off pamphlets is the kind
of thing that Tom Paine did and it is the kind of thing that the first
amendment was written to protect.
Senator CHAFEE. I don't think the fact that it is published on cheap
paper and has a modest circulation means that it should be hounded or
even that it is disturbing to us. If they want to advocate tearing down
the Capitol or any other type of action, so-called seditious, that would
not bother me. But here we have an issue of where we are sending
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people out on jobs which in my opinion and I think in your opinion
too and the opinion of others who have testified, is in the interest of
the Nation. We send them on these jobs and then somebody comes
forward and publishes their names which from a covert point of view,
you have heard the testimony, you might have read it, makes them use-
less. That is one of the prices we pay.
Then we get into their career and the personal danger to them. It
becomes very difficult. You know the problem.
Mr. ROWAN. I sympathize with the problem. I sympathize with the
effort of the Agency to protect its sources and methods. I don't believe
this will prove workable and I think parts of it will prove unconsti-
tutional.
Senator CHAFES. We appreciate your coming. You have had an
interesting career, I must say. I don't know whether I call going from
a journalist to a lawyer a lateral movement.
Mr. ROWAN. I don't know either.
Senator CHAFEE. In any event I congratulate you for your very
interesting life and thank you very much for coming.
Mr. ROWAN. Thank you, sir. I appreciate it.
Senator CHAFES. Now I have one statement for the record that I
would put in. I have one thing here for the stenographer. It is a tele-
gram from the executive director of the National Military Intelligence
Association which we would like to include in the record.
[The document referred to follows:]
STATEMENT OF CHARLES THOMANN, EXECUTIVE DIRECTOR, THE NATIONAL MILITARY
INTELLIGENCE ASSOCIATION
The National Military Intelligence Association met in convention in Hawaii
on 17 and 18 June. Members worldwide were present or represented. It was
resolved that the Association will support the most stringent criminal penalty
against those United States citizens who would wittingly disclose classified in-
formation to unauthorized persons. We resolve that the Senate in its wisdom
should assure that the penalties for unauthorized disclosure should be so severe
that they deter such acts, that the law should be so clearly written that judges
and juries have no choice but to impose stringent sentences upon conviction, the
severity of the sentence depending on the harm to the national security. We
believe in no parole for such offenses and that imprisonment for willful dis-
closure should range from ten years to life, that fines should not be in lieu of
imprisonment and such fines should range from a minimum of $10,000 to $50,000
and be only concurrent with imprisonment if imposed.
We support stipulation in legislation that exempts the investigating agencies
from provisions of the Privacy Act and the Freedom of Information Act during
and after such investigations. We believe that any U.S. citizen who willfully
engages in such acts, particularly as such acts bring harm to the national secu-
r?ty, forfeits certain rights as a citizen when it becomes clear to authorized
a ithority during investigation that a reasonable doubt exists as to that person's
loyalty to the United States. We urge the Senate in its wisdom to assure that 4
members of Congress and others in high office who engage wittingly in un-
authorized disclosure are subject to the same laws regardless of the immunity
normally accorded their office, the President as the highest authority being the
only exempt person. [Request that the essence of this resolve be made a matter
of record during the discussion of the subject by the Senate Select Committee.]
Senator CHAFEE. That concludes our hearings. I would like to thank
everybody who contributed, made the effort to come here. We will take
all this under advisement.
Thank you very much.
[Whereupon, at 4:15 p.m. the Select Committee on Intelligence
hearings adjourned.]
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APPENDIX I
NATIONAL NEWSPAPER AssocIATION,
Washington, D.C., June 26, 1980.
Hon. BnicH BATH,
Chairman, Select Committee on Intelligence, U.S. Senate,
Washington, D.C.
DEAR MR. CHAIRMAN : The National Newspaper Association remains concerned
with legislative efforts to prohibit the disclosure of names of intelligence agents.
We would like to take this opportunity to submit our views for the record. We
firmly believe that the lives and limbs of our intelligence agents must not be
t unnecessarily jeopardized in this or any other way. But that spectre of danger
cannot and should not be used to curtail constitutional rights which are as
essential to the survival of this nation as is the work performed by the intelli-
gence community' Thus, our apprehension focuses on the potential penalization
of newspapers and other third parties who publish or otherwise communicate
information accurately identifying agents.
For your information, NNA is a trade association composed of some 5,500
weekly and daily community newspapers located throughout the United States.
Mr. Chairman, as we mentioned, NNA does not wish to see the lives of agents
unduly imperilled nor do we wish to see our nation's intelligence effort under-
mined. Further, we do not imply that it is infeasible to draft a sufficiently precise
bill as to meet constitutional standards. However, we do believe that to do so
such a bill must be limited to punishing government employees or others who
have had authorized access to classified information, and those who affirmatively
induce them by ways of financial or similar awards to breach their trust. We
unfortunately have no suggestions to make to aid you in resolving the difficult
question of identifications which do not derive from classified information. We
believe that it is constitutionally impermissible to legislate in this area and that
such identifications are one of the hazards of a society which venerates freedom
of expression.
Mr. Chairman, there are a number of bills before your Committee at this time
designed to protect against revealing agents' identifications. Our fundamental
criticism applies to all, so we will not burden you and the members of the Com-
mittee by specifically discussing each. However, we do wish to comment briefly
upon Admiral Turner's proposal.
This bill, from our standpoint, is the least acceptable of all before you. It un-
questionably would affect the press and other third parties ; there is no restric-
tion to government employment or authorized access to classified information.
It would likely act as a brake upon publication and would raise serious consti-
tutional questions. Along this line, it is not difficult to foresee that this provision
would have a "chilling effect" upon the ability of the press to perform its tradi-
tional function of serving as a watchdog on government by foreclosing from
being cast into the public domain information necessary for a genuine debate
upon intelligence issues affecting all the people.
Moreover, the sweep of the provision is so broad as to conceivably exert an
influence upon the integrity of the journalism profession. Under the wording of
subsection 701(c), it would be unlawful for, say, a reporter of a newspaper to
disclose to the editor or publisher that a fellow reporter was a CIA agent. This
could, of course, limit the capacity of newspapers to remain fully independent
of the government overseas. In turn, this could undermine credibility with
sources and compromise the American press' position in international negotia-
tions to maintain a free press and a free flow of ififormation worldwide. A decline
in the integrity of the journalism profession-either actual or perceived-would
ultimately have an adverse effect upon our society, which so much depends upon
the news it receives from journalists, particularly from abroad. (Of course, this
problem could be remedied by simply barring the use of journalists as agents or
journalism as a cover.)
A corollary problem with the Turner proposal is the provision for twice the
penalty to third parties for disclosure as to government employees who are
entrusted with classified information. All constitutional questions aside, we
are at an utter loss to account for such differing treatment. And, if one does
consider what has or has not historically been considered an accetable restraint
I On April 16, 1980, NNA appeared with the Reporters Committee for Freedom of the
Press before the Select Committee on Intelligence hearing on S. 2284 National Intelli-
gence Act of 1980. We would refer you to our comments at page 534 of that testimony.
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on expression (those with authorized access to classified information as con-
trasted with third parties), the distinction becomes even more puzzling.
Mr. Chairman, permit us to add a word about provisions, such as section 501 (b)
of Senator Moynihan's bill, which would incorporate some sort of intent to harm
the United States test. We believe that this is not a useful test. Arguably, simple
criticism of or, indeed, any disclosure touching upon, the CIA or other intelli-
gence agencies could be construed as evincing such intent. By this reasoning, it
would be an easier standard to meet than showing knowing disclosure of classi-
fied information.
In conclusion, Mr. Chairman, we do not envy you your task. Determining how
to safeguard our agents and intelligence operations in the face of what we regard
as an equally or more compelling competing constitutional interest will be a
severe test of congressional wisdom. We would only again urge you to adopt
the most narrowly drawn of provisions : provisions which would not wreak, in
effect, any direct restraint upon the First Amendment rights of any third party.
Thank you for considering our views.
Respectfully submitted,
ARTHUR B. SACKLER,
General Counsel.
NEWHOUSE NEWS SERVICE,
Washington, D.C., June 26, 1980.
Hon. BIRCH BAYH,
Chairman, Senate Select Committee on Intelligence, Dirksen Senate Office Build-
ing, Washington, D.C.
This is in reference to your letter of June 12, 1980, inviting the Society of
Professional Journalists to comment on legislative proposals providing penalties
for the disclosure of intelligence agents' identities.
The Society believes the Central Intelligence Agency should have adequate
powers to prevent persons with access to classified data from disclosing the
identities of CIA agents, provided a showing is made that such disclosure en-
dangers human life and presents a direct, immediate and irreparable danger to
this country's national security.
But we do not believe the penalties should be extended to reporters, authors
and other recipients of information that identifies or may lead to the identifica-
tion of intelligence agents. Admiral Stansfield Turner's proposal, which would
subject reporters to 10 years imprisonment and a $50,000 fine, and S. 2216, which
has a similar provision, would place a severe burden on journalists to avoid
writing stories that might be, even remotely, a Section 701 violation. The provi-
sion is particularly onerous in view of the fact the government would not be
required to show such publication endangered the national security.
While sympathetic to the need to protect the identity of intelligence agents,
we feel a former agent should not be subject to prosecution for identifying him-
self as a former agent, providing such disclosure did not damage the national
security. To subject a former agent to prosecution for disclosing his past employ-
ment with the CIA infringes on his First Amendment right to write about his
experiences. H.R. 6820 recognizes this problem and provides, in Section 202
(b) (2), that it is not an offense for a former intelligence agent to disclose his
past association.
I hope this is helpful in your efforts to draft a CIA Charter.
ROBERT LEWIS,
Chairman, Freedom of Information Committee,
Society of Professional Journalists.
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