STATEMENT BY SENATOR JOHN H. CHAFEE (R-R.I) OF THE SENATE SELECT COMMITTEE ON INTELLIGENCE BEFORE THE SENATE COMMITTEE ON THE JUDICIARY SUBCOMMITTEE ON SECURITY AND TERRORISM ON THE INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981 (S.391)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83M00210R000300060004-4
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 20, 2016
• Document Release Date: February 28, 2007
• Sequence Number: 4
• Publication Date: May 8, 1981
• Content Type: REPORT

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SENATOR JOHN H. CHAFEE (R-R.I.)
OF THE
SENATE SELECT COMMITTEE ON INTELLIGENCE
BEFORE THE
SUBCOMMITTEE ON SECURITY AND TERRORISM
ON THE
INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981 (S. 391)
FRIDAY, MAY 8, 1981
T
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MR. CHAIRMAN. I am pleased to appear here today to
testify on the Intelligence Identities Protection Act of 1981
(S. 391), which I introduced in February of this year, and which
has been referred to your Subcommittee for consideration.
S. 391 is essentially the same as S. 2216 as it was reported
from the Senate Intelligence Committee in August of last year
by the near unanimous vote of 13 to 1, the one exception being
that the title and paragraph numbers were changed.
The purpose of the Intelligence Identities Protection Act
is to strengthen the intelligence capabilities of the United States
by prohibiting the unauthorized disclosure of information identifying
certain American intelligence officers, agents and sources of
information. In short, the bill places criminal penalties on those
enemies of the American intelligence community engaged in the
pernicious activity of "naming names."
In my judgment, governmental protection of the identities of
American intelligence officers is an idea whose time has come.. In
fact, it is long overdue. My colleague, Senator Bentsen, introduced
two bills which would accomplish this purpose in the 94th and 95th
Congresses, respectively, following the tragic murder of Richard
Welch in December, 1975. In 1979, Representative Boland, Chairman
of the House Intelligence Committee, introduced H.R. 5615, which
was the predecessor of this year's H.R. 4. In January of last
year, S. 2216 was introduced on the Senate side and, in its subsequent
refinement and alteration, this bill became the current S. 391.
Extensive hearings have been held on the issue of intelligence
identities protection in both the House and Senate Intelligence and
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Judiciary Committees. The issues which this legislation involves
have been heard in detail, and the wording of S. 391 has been
carefully amended and refined to its current state.
The Republican Party platform for 1980 contains a plank
supporting legislation "to invoke criminal sanctions against anyone
who discloses the identities of U.S. intelligence officers."
Mr. William Casey and Admiral Turner have both publicly expressed
their support for intelligence identities protection, and our bill
is the only one to receive the endorsement of both the Reagan
and Carter Administrations' Justice Departments.
Support for this legislation also comes from a broad
bipartisan base of Senators with extensive knowledge and experience
in intelligence and national security affairs. S. 391 currently
has over 40 cosponsors from both sides of the aisle, 10 of whom are
Committee Chairmen and 30 of whom chair Subcommittees of the
Senate. I am particularly pleased that the distinguished Majority
Leader, Mr. Howard Baker, is an original cosponsor of this bill
as well as Chairman Thurmond and Chairman Goldwater.
It seems to me that speedy passage of this legislation is
essential if this country is to restore at least a modicum of
effectiveness to its clandestine service and foreign operations.
Its prompt passage will show that this Nation intends to reverse
the adverse trend of recent years, and will work to rebuild an
efficient, effective, responsive and professional intelligence
community to serve as the first line of defense in today's unstable
and hostile world. Finally, the expeditious passage of this
legislation is vital to the lives and safety of those Americans
who serve this Congress and this Nation on difficult and dangerous
missions abroad.
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As you may know, Mr. Chairman, opponents of this legislation
were able to prevent its coming to the floor of the Senate last
fall. As a result, the 96th Congress completed its business
without offering us the opportunity for free debate and a vote on
this vital issue. Since that time, I am told that the Covert Action
Information Bulletin has published additional names of alleged
covert agents, and their editors have travelled abroad to pursue
this pernicious activity. As a consequence, six Americans were
expelled from Mozambique recently following charges of engaging in
espionage there.
A great deal of debate has centered on the constitutional
issues of intelligence identities legislation. The American
Civil Liberties Union (ACLU), for example, recently referred to
this sort of legislation as a "violation of the First Amendment."
The section of the First Amendment to the Constitution
that pertains to our discussion states that "Congress shall make
no law.... abridging the freedom of speech, or of the press...."
The first point that I wish to make with regard to this amendment
is that the provisions of the Bill of Rights cannot be applied
with absolute literalness, but are subject to exceptions. It has
long been recognized that the free speech clause of the Constitution
cannot wipe out common law regarding obscenity, profanity and the
defamation of individuals, for example. This point was reiterated
by Justice Oliver Wendell Holmes in the classic Espionage Act
decisions in 1919 when he stated that:
"The First Amendment.... obviously was not
intended to give immunity for every possible
use of language.... The most stringent protection
of free speech would not protect a man in
falsely shouting fire in a theater and causing
a panic."
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A second, and equally important point, is that if un-
limited speech interferes with the legitimate purpose of
government, there must be some point at which the government
can step in. My uncle, Zechariah Chafee, who was the leading
defender of free speech during his thirty-seven years at the
Harvard Law School, wrote in his book titled Free Speech in
the United States that:
"The true meaning of freedom of speech seems to be
this. One of the most important purposes of society
and government is the discovery and spread of truth
on subjects of general concern. This is possible
only through absolutely unlimited discussion....
Nevertheless, there are other purposes of government,
such as order, the training of the young, protection
against external aggression. Unlimited discussion
sometimes interferes with these purposes, which must
be balanced against freedom of speech.
Or to put the matter another way, it is useless to
define free speech by talk about rights.'... Your
right to swing your arms ends just where the other
man's nose begins.'
The true boundary line of the First Amendment can
be fixed only when Congress and the courts realize
that the principle on which speech is classified
as lawful or unlawful involves the balancing against
each other of two very important social interests,
in public safety and in the search for truth.
Thus, our problem of locating the boundary line of
free speech is solved. It is fixed close to the
point where words will give rise to unlawful acts."
(Chafee, Free Speech in the United States, pp. 31-35)
It is evident, Mr. Chairman, that the activity of "naming
names" has given rise to unlawful acts, and that it has endangered
the safety of American citizens serving abroad. I have already
mentioned the murder of Richard S. Welch in Greece. I am sure
you also know of the series of assassination attempts in Kingston,
Jamaica, following the Covert Action Information Bulletin's publication
of the names of 15 alleged CIA officers there last year. What you
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may not know is how terribly those events have affected the
lives of the American officials involved, their wives and
their children. Mrs. Richard Kinsman, who wrote to me last
year on this issue and whose letter I would like to insert into
the record, has since stated that her life has been "terribly
disrupted" by the assassination attempt on her husband and her
family. Her children, one of whose bedroom was riddled by machine
gun bullets, "did not understand why anyone would want to hurt
them." The family has been forced to move several times for
reasons of their own personal safety, required to give up jobs,
sever friendships, withdraw from and re-enter schools and suffer
long periods of separation. They also wonder whether they will
ever travel abroad again for any purpose.
I understand that another wife, whose home was also the
target of an assassination attempt in Jamaica last year, was
hospitalized for stress disorders following the incident. They
have also left Jamaica. It is clear, then, that the personal
safety and missions of those named have been placed in jeopardy
by "naming names."
What is not so clear, is where "naming names" contributes to
what my uncle has characterized as the important social interest
of "the search for truth." For example, it is difficult
to see how the knowledge that a particular individual serving in
an Embassy abroad is paid by CIA rather than the State Department
materially contributes to our search for the truth.
In this regard, Mr. Chairman, I think that it is essential
to point out that this bill would not prevent Mr. Philip Agee
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from publishing the articles contained in his publications,
obnoxious though they be. This bill would only restrain his
publication of the names of persons he claims are covert agents.
By the same token, there is nothing in this bill which would
prevent Louis Wolf from continuing to publish the Covert Action
Information Bulletin which does contain articles purported to
be based on "research" into U.S. intelligence operations at
home and abroad. The only impact of this legislation would be
on the section of the Bulletin titled "Naming Names;"
I hope that this brief review of the constitutional
question will show that the First Amendment does not provide
absolute protection for all speech, and that the government can,
in certain circumstances, intervene in the exercise of free speech
in the interest of public safety, without jeopardizing the search
for truth. As the Attorney General stated last year on this subject,
"our proper concern for individual liberties must be balanced with
a concern for the safety of those who serve the Nation in difficult
times and under dangerous conditions." It goes without saying
that these important constitutional considerations were very much
in our mind when my colleagues and I worked up the final draft
of the Intelligence Identities Protection Act. We are not
challenging the Constitution. We are working with it. In my
judgment, we have worked well within its limits. We have successfully
followed what my uncle called the "boundary line of free speech."
Mr. Chairman, I will not take time this morning to discuss
the specific provisions of S. 391, or to point out in detail how
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this formulation reflects our proper concern for First Amendment
rights. This has been the subject of previous testimony, and it
is a part of the extensive record on this issue. I recommend
the Intelligence Committee's Report (No. 96-896) on this subject,
as well as the published hearing record of both the Intelligence
and Judiciary Committees.
However, there is one additional issue which I believe must
be addressed before I conclude my remarks because there has been
so much confusion surrounding it. During the long public debate
on this issue, and in the hearings before the Senate Intelligence
Committee, I have heard it suggested or implied that it should be
acceptable for people to disclose the names of covert agents
if this information derives from "unclassified" sources. The
implication of this view is that there exists somewhere in this
government an official but unclassified list of covert agents,
and that those who have found this list should be free to publish
the names thereon.
Mr. Chairman, I have studied the matter of cover for covert
agents within the Senate Intelligence Committee, and have even
held a series of detailed hearings on this subject. Without going
into specifics in open session, I can assure you that there is no
such list. What we have found are unclassified official or semi-
official documents which contain the names of covert agents in
among the names of other officials of the U.S. government. The
covert agents are NOT identified. The very purpose of these documents
is to cover or to hide the true identity of the covert agents named
thereon, and in no case is an identification explicitly made.
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However, to say that the government has never published
an unclassified list of covert agents as such does not mean that
certain persons, employing basic principles of counter-espionage,
and after considerable effort, cannot determine identities of
covert agents with some degree of accuracy.
It is the purpose of S. 391 to punish the publication of
names acquired through these techniques regardless of whether
the identification was made with reference to classified or
unclassified information. After all, it is not the mechanism
of identification which places people's lives in jeopardy and
threatens our intelligence capabilities. It is the actual
publication of people's names as covert agents that does so.
It is the pattern of activities involved in the pernicious
business of "naming names" that we want primarily to prevent.
In closing, Mr. Chairman, I would like to make a special
appeal to you and to my colleagues on your Committee to report
S. 391 intact so that the interminable delays which seems to
follow any change to a bill might be avoided in this case. You
have my assurance, in turn, that I will do whatever I can to see
that this vital bill is moved with the deliberate speed it deserves.
Over the past five years, more than 2,000 names of alleged
CIA officers have been identified and published by a small group
of individuals whose stated intention is to "expose" U.S.
intelligence operations. I think it is time we legislated an end
to this pernicious vendetta against the American intelligence
community.
We send fellow Americans abroad on dangerous missions which
are supported by us as Senators. We owe it to them to do our
utmost to protect their lives as they ggo about our business.
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