INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981 --S.391

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83M00210R000300060007-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 109
• Document Creation Date: December 20, 2016
• Document Release Date: February 28, 2007
• Sequence Number: 7
• Publication Date: May 8, 1981
• Content Type: REGULATION

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INTELLIGENCE IDENTITIES PROTECTION ACT
OF 1981-S. 391
L
HEARING
SUBCOMMITTEE ON SECURITY AND TERRORISM
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
NINETY-SEVENTH CONGRESS
S. 391
A BILL TO AMEND THE NATIONAL SECURITY ACT OF 1947 TO
PROHIBIT THE UNAUTHORIZED DISCLOSURE OF INFORMA-
TION IDENTIFYING CERTAIN UNITED STATES INTELLIGENCE
OFFICERS, AGENTS, INFORMANTS, AND SOURCES AND TO
DIRECT THE PRESIDENT TO ESTABLISH PROCEDURES TO
PROTECT THE SECRECY OF THESE INTELLIGENCE
RELATIONSHIPS
0
U.S. GOVERNMENT PRINTING OFFICE
83-094 0 > WASHINGTON : 1981
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COMMITTEE ON THE JUDICIARY
STROM THURMOND, South Carolina, Chairman
CHARLES MCC. MATHIAS, JR., Maryland JOSEPH R. BIDEN, JR., Delaware
PAUL LAXALT, Nevada EDWARD M. KENNEDY, Massachusetts
ORRIN G. HATCH, Utah ROBERT C. BYRD, West Virginia
ROBERT DOLE, Kansas HOWARD M. METZENBAUM, Ohio
ALAN K. SIMPSON, Wyoming DENNIS DECONCINI, Arizona
JOHN P. EAST, North Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa MAX BAUCUS, Montana
JEREMIAH DENTON, Alabama HOWELL HEFLIN, Alabama
ARLEN SPECTER, Pennsylvania
EMORY SNEEDEN, Chief Counsel
QUENTIN CROMMELIN, Jr., Staff Director
SUBCOMMITTEE ON CRIMINAL LAW
CHARLES MCC. MATHIAS, JR., Maryland, Chairman
PAUL LAXALT, Nevada JOSEPH R. BIDEN, JR., Delaware
ARLEN SPECTER, Pennsylvania HOWARD M. METZENBAUM, Ohio
ROBERT DOLE, Kansas HOWELL HEFLIN, Alabama
MICHAEL R. KLIPPER, Chief Counsel
RALPH OMAN, Staff Director
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CONTENTS
PROPOSED LEGISLATION
S. 391-A bill to amend the National Security Act of 1947 to prohibit the
unauthorized disclosure of information identifying certain U.S. intelligence
officers, agents, informants, and sources and to direct the President to
establish procedures to protect the secrecy of these intelligence relation-
ships ................................................................................................................................ 7
STATEMENTS OF COMMITTEE MEMBERS
Thurmond, Sen. Strom .................................................................................................... 1
Denton, Sen. Jeremiah .................................................................................................... 2
Leahy, Sen. Patrick J ...................................................................................................... 4
Biden, Sen. Joseph R., Jr ................................................................................................ 48
East, Sen. John P ............................................................................................................. 51
CHRONOLOGICAL LIST OF WITNESSES
Chafee, Hon. John H., a U.S. Senator from the State of Rhode Island ................. 16
Casey, Hon. William J., Director, U.S. Central Intelligence Agency, accompa-
nied by John H. Stein, Associate Deputy Director for Operations, CIA, and
Fred Hits, legislative counsel, CIA ........................................................................... 26
Prepared statement ................................................................................................. 32
Answers to questions by Sen. Leahy .................................................................... 40
Willard, Richard K., Counsel for Intelligence Policy, U.S. Dept. of Justice......... 43
Prepared statement ................................................................................................. 60
Answers to questions by Sen. Leahy .................................................................... 67
Halperin, Morton H., director, Center for National Security Studies, Ameri-
can Civil Liberties Union, and Jerry J. Berman, legislative counsel ................ 70
Prepared statement ................................................................................................. 73
Maury, John M., president, the Association of Former Intelligence Officers,
accompanied by John S. Warner, legal adviser ...................................................... 97
Prepared statement ................................................................................................. 103
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INTELLIGENCE IDENTITIES PROTECTION ACT
OF 1981-S. 391
U.S. SENATE,
COMMITTEE ON THE JUDICIARY,
SUBCOMMITTEE ON SECURITY AND TERRORISM,
Washington, D.C.
The subcommittee met, pursuant to notice, at 9:38 a.m., in room
2228 of the Everett McKinley Dirksen Senate Office Building, Sen-
ator Jeremiah Denton (chairman of the subcommittee) presiding.
Also present: Senators Thurmond, East, Biden, and Leahy.
Senator DENTON. The hearing will come to order.
The subject of the Subcommittee on Security and Terrorism
hearing this morning is the Intelligence Identities Protection Act of
1981, Senate bill 391.
Before proceeding further, I would like to recognize the presence
of the distinguished chairman of the overall committee, a man who
has my great admiration and to whom I look daily for leadership,
my distinguished colleague from South Carolina, Senator Strom
Thurmond.
OPENING STATEMENT OF SENATOR STROM THURMOND
Senator THURMOND. Thank you very much, Mr. Chairman, for
your kind words.
Mr. Chairman, I would like to commend you for the expeditious
manner in which you have set up this hearing.
As a cosponsor of this necessary piece of legislation, I believe it is
imperative that we act quickly but effectively to see that this
matter is given a full and fair hearing. It is also necessary that
parties with special concerns be heard and their views weighed by
the subcommittee.
We must, however, keep in mind the special needs of the brave
and unsung emloyees of the intelligence agencies of this country.
We must remember, too, that uninformed policymakers cannot
properly serve the people, and without the information these em-
ployees provide, policy will suffer.
This bill aims at protecting the identities of those individuals
whose anonymity serves the interest of the country. Moveover, this
legislation would insure an appropriate balance between individual
rights and the absolute necessity for secrecy in intelligence collec-
tion vital to the Nation's security.
Mr. Chairman, I shall not be able to stay throughout the whole
hearing, as I have a bill coming up in the Senate in a few minutes;
but I want to take this opportunity to welcome the head of the CIA
(1)
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here this morning, Mr. Casey, who is an experienced, well-versed
man on intelligence matters.
I would also like to join in welcoming to this committee the
distinguished Senator from Rhode Island, my good friend Senator
Chafee.
Thank you, Mr. Chairman.
OPENING STATEMENT OF CHAIRMAN JEREMIAH DENTON
Senator DENTON. Thank you very much, Mr. Chairman. I know
how busy you are as President pro tem of the Senate, and with the
many bills you are managing in the Senate.
We would like to welcome my distinguished colleague, Senator
Leahy, who has a great deal of background in this subject and has,
in his experience with the Select Committee and other committees
on which we happen to serve together, shown me how much he is
going to help us in the future as he has in the past. After I
welcome the witnesses, I will ask you for anything you care to say,
sir.
Our witnesses I will introduce one at a time, and then ask them
to take their positions. First, we already have in the witness chair
the Honorable John H. Chafee, Senator from Rhode Island, who
actually sponsored this bill and who has urged us not to waste any
time in getting to it; and I assure you, John, that we have not. We
have had a Department of Justice review of the bill in which
certain things were questioned, and we have gotten to it as quickly
as we could.
We have William J. Casey, the Director of the Central Intelli-
gence Agency; Richard K. Willard, Counsel for Intelligence Policy,
Department of Justice; Morton H. Halperin, director, Center for
National Security Studies, American Civil Liberties Union; Jerry J.
Berman, legislative counsel, American Civil Liberties Union; and
John M. Maury, president, Association of Former Intelligence Offi-
cers.
You will be seeing them one at a time as they come up. Welcome
to you all, gentlemen.
I will make my opening statement, and then proceed.
In this subcommittee's previous hearing on Friday, April 24,
1981, which was devoted to the origins, direction, and support of
terrorism, all of the witnesses testified regarding past and present
Soviet and surrogate support for international terrorism. It is rele-
vant to see the expulsion of the Lybian Embassy personnel which
took place only yesterday.
In reviewing the media coverage which ensued after our last
hearing, I was disappointed, to say the least, that some of those
journalists covering the hearing seemed to miss the central thrust
of the testimony. They tended to focus on an apparent lack of
evidence of Soviet masterminding of international terrorism, a
point of view to which no one connected with this hearing has ever
subscribed.
That I should have been described as "surprised" or "disappoint-
ed" by a lack of evidence showing Soviet masterminding of this
pernicious activity is to misrepresent my views, which I have re-
peatedly articulated. And it seems curious that that alleged disap-
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pointment for many reporters was the No. 1 news fact, which was
reported.
Since my personal views have been so variously reported in the
press, I feel compelled to state again for the record that it is the
intention of the subcommittee to hold hearings to examine judi-
ciously the, extent to which terrorism poses a threat to the security
of the United States. We have not prejudged this matter. We are
and we will remain sensitive to the need to search out the evidence
and to deal with it responsibly.
There were many elements of the media that reported the hear-
ings objectively, but superficial reports of this type are sufficiently
widespread to cause me concern that the American people are not
being well informed.
I am convinced by my own experiences that there is an irrefut-
able link between terrorism and national security. This has been
demonstrated time and again in those countries whose survival is
crucial to our own security. Turkey, the Federal Republic of Ger-
many, South Korea, and South Africa are current examples. Simi-
larly, the protection of covert sources has a direct bearing on our
own national security through our ability to monitor terrorist and
other activities worldwide.
Therefore, with this in mind, the Subcommittee on Security and
Terrorism today undertakes a most important task. An examina-
tion of provisions of S. 391 which is a bill to amend the National
Security Act of 1947 to prohibit the unauthorized disclosure of
information identifying certain U.S. intelligence officers, agents,
informants, and sources; and to direct the President to establish
procedures to protect the secrecy of these intelligence relationships.
Events transpiring in the world continue to demonstrate that it
is absolutely essential that our country maintain a strong and
effective intelligence apparatus in order to insure that our national
security is maintained unimpaired. Human collection sources of
intelligence are of vital importance to the success of this overall
effort. It would follow, therefore, that unauthorized disclosures of
information identifying individuals engaged in, or assisting in our
country's foreign intelligence activities, are undermining the intel-
ligence community's human source collection capabilities and ex-
posing to needless dangers the lives of our intelligence officers in
the field.
The disclosure of the identity of a covert agent is an immoral act
which cannot be tolerated. It has no relation whatsoever to speak-
ing out against Government programs which are wasteful. It in no
way bears a relationship to the whistleblower who seeks to en-
hance his Government's ability to perform more efficiently by
bringing to the attention of those in responsible positions deficien-
cies such as fraud or waste in the agency in which the whistle-
blower serves.
No; the reprehensible activities, the commission of which this bill
is designed to criminalize, have repeatedly exposed honorable
public servants to personal peril and vastly reduced their effective-
ness in pursuing their endeavors. The insensitivity and moral de-
generacy on the part of those who seek to undermine the effective-
ness of our intelligence capability is so inimical to our American
democratic system that it seems, to me at least, that much of what
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we are prepared to do today should be totally unnecessary; and it is
indeed unfortunate that this is not the case.
While in a free society we must welcome public debate concern-
ing the role of the intelligence community as well as that of other
components of our Government, the irresponsible and indiscrimi-
nate disclosure of names and cover identities of covert agents
serves no salutory purpose whatsoever.
As elected public officials, we have a duty consistent with our
oaths of office to uphold the Constitution and to demonstrate our
support for the men and women of the U.S. intelligence service
who perform duties on behalf of their country, often at great
personal risk and sacrifice, a service vital to our national defense.
Extensive hearings before the House and Senate Intelligence
Committees have documented these pernicious effects. The under-
lying basic issue is our ability to continue to recruit and retain
human sources of intelligence whose information may be crucial to
the Nation's survival in an increasingly dangerous world.
No existing law clearly and specifically makes the unauthorized
disclosure of clandestine intelligence agents' identities a criminal
offense. Therefore, as matters now stand the impunity with which
unauthorized disclosures of intelligence identities can be made im-
plies a governmental position of neutrality in the matter. It sug-
gests that the U.S. intelligence officers are fair game for those
members of their own society who take issue with the existence of
a CIA or find other perverse motives for making these unauthor-
ized disclosures.
In the area of identities' protection, we must steer a course
carefully calculated between enormous interests. On the one side
we have the protection of a constitutional right of free speech; and
on the other, the vital need to protect the effectiveness of U.S.
intelligence gathering around the world.
Today we will hear from six witnesses with varying viewpoints
who can enlighten us in this important area.
Senator Leahy, before the questioning begins, would you care to
make an opening statement?
OPENING STATEMENT OF SENATOR PATRICK J. LEAHY
Senator LEAHY. Thank you, Mr. Chairman.
I compliment the Chair on having hearings on what I think is an
extremely important subject. I am delighted to see our colleague
from New England-southern New England-Senator Chafee, who
has done yeoman's service in this field in the Intelligence Commit-
tee and on the floor of the Senate.
Mr. Chairman, few Americans are ever going to be in a position
to assess the full extent of the extraordinary contribution of our
intelligence officers to the security of our Nation. Perhaps because
of the nature of their work-well, in fact, it is because of the
nature of their work that we will never be in a position to fully
assess it. There can be no doubt, however, that the naming of
names has resulted in the diminished effectiveness of our intelli-
gence efforts, and the loss of life.
The legislation before this committee effectively deals with the
violations of oath and good judgment by those who have had au-
thorized access to classified information about covert agents. There
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is no first amendment purpose to be served in assuring the rights
of agents to violate their professional duties, and I give these
provisions my strongest support.
Mr. Chairman, section 601(c) of the bill tries to deal with infor-
mation that has gotten beyond the perimeter of the intelligence
community, beyond the hands of those whose silence we may re-
quire as a matter of contract. We do have a legitimate interest in
protecting the security and effectiveness of the intelligence agents
even where compromising information is in the hands of agency
outsiders. But the standards cannot be standards growing out of
the notions of contract and duty, but rather, standards that exam-
ine the purpose of and intent of disclosure and define "prohibited
activity" with care.
The bill that does not clearly separate legitimate discussion of
? the intelligence function in this country from the purposeful and
malicious naming of names could mean the effective end of all
meaningful discourse about intelligence. The first amendment has
always been a very down-to-earth concept for me. It means writing
or speaking without fear. And nothing would dampen honest ex-
pression faster than confusion about the legal limits of that expres-
sion.
If we adopt legislation that makes it perilous to write about the
CIA, or if the bill is so vague that the only safe course of action is
to write nothing, not only is the public the loser but I think our
intelligence agencies are the losers, also. What is true of other
government agencies is true of the intelligence agencies-they op-
erate poorly in a permanent vacuum.
There has been concern about the constitutionality of section
601(c) because it limits the use of information in the public domain.
While I share that concern, I recognize that there will be instances
where information in the public domain but not widely circulated
can become dangerous to our security if circulated with notoriety.
So let us try to identify those instances and define them with
such precision that misunderstanding of the law's intent would be
difficult. Let us also recognize that this bill will not by itself cure
intelligence leaks. If the identity of agents has come into the public
domain, somewhere the system has broken down. Our first job is
? not to tamper with the first amendment, but to fix the system and
make sure that the leaks do not occur in the first place.
Resting on a strong system for insuring adequate cover for our
intelligence agents, a bill like S. 391, carefully drafted, can immea-
surably improve both the quality and the security of our intelli-
gence services. Unless carefully done, however, the bill might fall
short of the enforceable protection we need, and yet weaken legiti-
mate expression in an area where the need for continuing dialogue
has been clearly demonstrated.
I have no truck with those who feel that they must, under the
guise of whistleblowing, run out and hold a press conference and
endanger the lives of agents to get their point across. We have
provided legitimate forums for whistleblowers-not only in legisla-
tion that I have drafted that has been passed by previous Congress-
es, but in the Senate Select Committee on Intelligence, there is an
easy, immediately available forum for people within any of the
intelligence agencies with legitimate gripes to come to us, and they
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will be heard by a bipartisan forum on relatively short notice in as
complete detail as they want.
That is a proper and appropriate forum for those people who
have been entrusted with the greatest and most delicate secrets of
our Nation. That is the proper and appropriate method to take. I
think that within our intelligence community steps should be
taken to insure that that is the way it is done.
In saying that, however, we should also be aware as a nation
that when information has come into the public domain through
whatever means, that we also as a nation have a duty to protect
the first amendment rights involved when such information has
gotten out into the public domain.
Let us continue to make everybody within the intelligence agen-
cies aware of the fact that we do have legitimate areas for legiti-
mate gripes to be aired without taking steps that may well endan-
ger our whole system and our whole country.
Thank you, Mr. Chairman.
Senator DENTON. Thank you, Senator Leahy.
Senator LEAHY. I should also comment, Mr. Chairman, that I am
on another committee, Senator Helms' committee, that has been
having a markup of the farm bill for 2 weeks now, and at some
point this morning I will have to leave for that.
Senator DENTON. We are all familiar with that problem, and we
appreciate your presence here this morning for the time you are
able to devote to it, Senator Leahy.
Before we begin with our distinguished witness, I wish to place a
copy of S. 391 in the record.
[Copy of S. 391 follows:]
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97TH CONGRESS
1ST SESSION
To amend the National Security Act of 1947 to prohibit the unauthorized
disclosure of information identifying certain United States intelligence offi-
cers, agents, informants, and sources and to direct the President to establish
procedures to protect the secrecy of these intelligence relationships.
? IN THE SENATE OF THE UNITED STATES
FEBRUARY 3 (legislative day, JANUARY 5), 1981
Mr. CHAFEE (for himself, Mr. GOLDWATER, Mr. BENTSEN, Mr. DANFORTH, Mr.
DOMENICI, Mr. GARN, Mr. GLENN, Mr. HAYAKAWA, Mr. JACKSON, Mr.
LAXALT, Mr. LUGAR, Mr. NUNN, Mr. PRESSLER, Mr. ROTH, Mr. SCHMITT,
Mr. SIMPSON, Mr. WALLOP, Mr. HATCH, Mr. HUDDLESTON, and Mr.
THURMOND) introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
A BILL
To amend the National Security Act of 1947 to prohibit the
unauthorized disclosure of information identifying certain
United States intelligence officers, agents, informants, and
sources and to direct the President to establish procedures
to protect the secrecy of these intelligence relationships.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Intelligence Identities
4 Protection Act of 1981".
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2
1 SEC. 2. (a) The National Security Act of 1947 is
2 amended by adding at the end thereof the following new title:
3 "TITLE VI-PROTECTION OF CERTAIN NATIONAL
4 SECURITY INFORMATION
5 "PROTECTION OF IDENTITIES OF CERTAIN UNITED
6 STATES UNDERCOVER INTELLIGENCE OFFICERS,
1P
7 AGENTS, INFORMANTS, AND SOURCES
8 "SEC. 601. (a) Whoever, having or having had author-
9 ized access to classified information that identifies a covert
10 agent, intentionally discloses any information identifying such
11 covert agent to any individual not authorized to receive clas-
12 sified information, knowing that the information disclosed so
13 identifies such covert agent and that the United States is
14 taking affirmative measures to conceal such covert agent's
15 intelligence relationship to the United States, shall be fined
16 not more than $50,000 or imprisoned not more than ten
17 years, or both.
18 "(b) Whoever, as a result of having authorized access to
19 classified information, learns the identity of a covert agent
20 and intentionally discloses any information identifying such ?
21 covert agent to any individual not authorized to receive clas-
22 sified information, knowing that the information disclosed so
23 identifies such covert agent and that the United States is
24 taking affirmative measures to conceal such covert agent's
25 intelligence relationship to the United States, shall be fined
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3
13
14
15
16
1 not more than $25,000 or imprisoned not more than five
2 years, or both.
3 "(c) Whoever, in the course of a pattern of activities
4 intended to identify and expose covert agents and with
5 reason to believe that such activities would impair or impede
6 the foreign intelligence activities of the United States, dis-
7 closes any information that identifies an individual as a
8 covert agent to any individual not authorized to receive clas-
9 sified information, knowing that the information disclosed so
10 identifies such individual and that the United States is taking
11 affirmative measures to conceal such individual's classified
12 intelligence relationship to the United States, shall be fined
not more than $15,000 or imprisoned not more than three
years, or both.
17 section 601 that before the commission of the offense with
18 which the defendant is charged, the United States had public-
19 ly acknowledged or revealed the intelligence relationship to
20 the United States of the individual the disclosure of whose
21 intelligence relationship to the United States is the basis for
22 the prosecution.
23 "(b)(1) Subject to paragraph (2), no person other than a
24 person committing an offense under section 601 shall be sub-
25 ject to prosecution under such section by virtue of section 2
"DEFENSES AND EXCEPTIONS
"SEC. 602. (a) It is a defense to a prosecution under
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4
1 or 4 of title 18, United States Code, or shall be subject to
2 prosecution for conspiracy to commit an offense under such
3 section.
4 "(2) Paragraph (1) shall not apply in the case of a
5 person who acted in the course of a pattern of activities in-
6 tended to identify and expose covert agents and with reason
7 to believe that such activities would impair or impede the
8 foreign intelligence activities of the United States.
9 "(c) It shall not be an offense under section 601 to
10 transmit information described in such section directly to the
11 Select Committee on Intelligence of the Senate or to the Per-
12 manent Select Committee on Intelligence of the House of
13 Representatives.
14 "(d) It shall not be an offense under section 601 for an
15 individual to disclose information that solely identifies himself
16 as a covert agent.
17 "PROCEDURES FOR ESTABLISHING COVER FOR
18 INTELLIGENCE OFFICERS AND EMPLOYEES
19 "SEC. 603. (a) The President shall establish procedures
20 to ensure that any individual who is an officer or employee of
21 an intelligence agency, or a member of the Armed Forces
22 assigned to duty with an intelligence agency, whose identity
23 as such an officer, employee, or member is classified informa-
24 tion and which the United States takes affirmative measures
25 to conceal is afforded all appropriate assistance to ensure that
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1 the identity of such individual as such an officer, employee,
2 or member is effectively concealed. Such procedures shall
3 provide that any department or agency designated by the
4 President for the purposes of this section shall provide such
5 assistance as may be determined by the President to be nec-
6 essary in order to establish and effectively maintain the se-
7 crecy of the identity of such individual as such an officer,
8 employee, or member.
9 "(b) Procedures established by the President pursuant to
10 subsection (a) shall be exempt from any requirement for pub-
11 lication or disclosure.
12 "EXTRATERRITORIAL JURISDICTION
13 "SEC. 604. There is jurisdiction over an offense under
14 section 601 committed outside the United States if the indi-
15 vidual committing the offense is a citizen of the United States
16 or an alien lawfully admitted to the United States for perma-
17 nent residence (as defined in section 101(a)(20) of the Immi-
18 gration and Nationality Act).
19 "PROVIDING INFORMATION TO CONGRESS
20 "SEC. 605. Nothing in this title may be construed as
21 authority to withhold information from the Congress or from
22 a committee of either House of Congress.
23 "DEFINITIONS
24 "SEC. 606. For the purposes of this title:
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1 "(1) The term `classified information' means infor-
2 mation or material designated and clearly marked or
3 clearly represented, pursuant to the provisions of a
4 statute or Executive order (or a regulation or order
5 issued pursuant to a statute or Executive order), as re-
6 quiring a specific degree of protection against un-
7 authorized disclosure for reasons of national security.
8 "(2) The term `authorized', when used with re-
9 spect to access to classified information, means having
10 authority, right, or permission pursuant to the provi-
11 sions of a statute, Executive order, directive of the
12 head of any department or agency engaged in foreign
13 intelligence or counterintelligence activities, order of
14 any United States court, or provisions of any rule of
15 the House of Representatives or resolution of the
16 Senate which assigns responsibility within the respec-
17 tive House of Congress for the oversight of intelligence
18 activities.
19 "(3) The term `disclose' means to communicate,
20 provide, impart, transmit, transfer, convey, publish, or
21 otherwise make available.
22 "(4) The term `covert agent' means-
23 "(A) an officer or employee of an intelligence
24 agency or a member of the Armed Forces as-
25 signed to duty with an intelligence agency-
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1 "(i) whose identity as such an officer,
employee, or member is classified informa-
tion, and
"(ii) who is serving outside the United
5 States or has within the last five years
6 served outside the United States; or
7 "(B) a United States citizen whose intelli-
8 gence relationship to the United States is classi-
9 fied information, and-
10 "(i) who resides and acts outside the
11 United States as an agent of, or informant or
12 source of operational assistance to, an intelli-
13 gence agency, or
14 "(ii) who is at the time of the disclosure
15 acting as an agent of, or informant to, the
16 foreign counterintelligence or foreign
17 counterterrorism components of the Federal
18 Bureau of Investigation; or
19 "(C) an individual, other than a United
20 States citizen, whose past or present intelligence
21 relationship to the United States is classified in-
22 formation and who is a present or former agent
23 of, or a present or former informant or source of
24 operational assistance to, an intelligence agency.
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8
1 "(5) The term `intelligence agency' means the
2 Central Intelligence Agency, a foreign intelligence
3 component of the Department of Defense, or the for-
4 eign counterintelligence or foreign counterterrorism
5 components of the Federal Bureau of Investigation.
6 "(6) The term `informant' means any individual
7 who furnishes information to an intelligence agency in
8 the course of a confidential relationship protecting the
9 identity of such individual from public disclosure.
10 "(7) The terms `officer' and `employee' have the
11 meanings given such terms by sections 2104 and 2105,
12 respectively, of title 5, United States Code.
13 "(8) The term `Armed Forces' means the Army,
14 Navy, Air Force, Marine Corps, and Coast Guard.
15 "(9) The term `United States', when used in a ge-
16 ographic sense, means all areas under the territorial
17 sovereignty of the United States and the Trust Terri-
18 tort' of the Pacific Islands.
19 "(10) The term `pattern of activities' requires a
20 series of acts with a common purpose or objective.".
21 (b) The table of contents at the beginning of such Act is
22 amended by adding at the end thereof the following:
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15
9
"TITLE VI-PROTECTION OF CERTAIN NATIONAL SECURITY
INFORMATION
"Sec. 601. Protection of identities of certain United States undercover intelligence
officers, agents, informants, and sources.
"Sec. 602. Defenses and exceptions.
"Sec. 603. Procedures for establishing cover for intelligence officers and employees.
"Sec. 604. Extraterritorial jurisdiction.
"Set. 605. Providing information to Congress.
"Sec. 606. Definitions.".
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Senator DENTON. Senator Chafee, would you offer your opening
statement, please, sir?
STATEMENT OF HON. JOHN H. CHAFEE, A U.S. SENATOR FROM
THE STATE OF RHODE ISLAND
Senator CHAFEE. Thank you, Mr. Chairman, and members of the
committee.
First I want to say that I appreciate a great deal, Mr. Chairman
and members, that you have moved expeditiously with this piece of
legislation that I consider of great importance.
Mr. Chairman, S. 391 is essentially the same as S. 2216 as it was
reported from the Senate Intelligence Committee in August of last
year by a vote of 13 to 1. The only changes are the numbering of
the title and the paragraphs.
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 infor-
mation. In short, the bill places criminal penalties on those en-
emies of the American intelligence community engaged in the
pernicious activity of naming names.
In my judgment, the governmental protection of the identities of
American intelligence officers is an idea whose time has come and
indeed it is long overdue. As has been mentioned in previous
remarks, others have made efforts in this field. My colleague,
Senator Bentsen, introduced bills which would accomplish this pur-
pose in 1976 and 1977, following the tragic murder of Richard
Welch in Athens in December 1975.
I might say, Mr. Chairman, that Richard Welch was born and
raised in Providence, R.I. So I have a deep personal, as well as an
official interest in preventing the reoccurrence of events such as
that.
In 1979, Representative Boland, chairman of the House Intelli-
gence Committee, introduced a House bill which was the predeces-
sor of H.R. 4, which has been introduced this year. In January of
last year, S. 2216, the bill I previously referred to, was introduced
on the Senate side, and its subsequent refinement and alteration is
this bill we are considering today, namely S. 391.
Extensive hearings have been held on the issue of intelligence
identities protection in both the House and the Senate Intelligence
Committees, and before the Judiciary Committee. The issues which
this legislation involves have been heard in detail, and the wording
of S. 391 has been carefully amended and refined in its current
state.
The point I am making, Mr. Chairman and members of the
committee, is: This is no draft bill that we are submitting that has
been conjured out of thin air. This is the result of a long, definite
effort covering many years with hearings in the Intelligence Com-
mittees in the House and the Senate on this subject.
The Republican Party platform in 1980 contained a plank sup-
porting legislation "to invoke criminal sanctions against anyone
who discloses the identities of U.S. intelligence officers." Mr. Wil-
liam Casey and Admiral Turner have both publicly expressed their
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support for intelligence identities protection, and of course I am
delighted that Mr. Casey will be testifying this morning.
Our bill, this one we are considering today, is the only one to
receive the endorsement of both the Reagan and the Carter admin-
istrations' 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.
This bill has currently over 40 cosponsors from both sides of the
aisle, 10 of whom are committee chairmen, and 30 of whom chair
subcommittees. I am particularly pleased that the distinguished
Majority Leader, Senator Baker is also an original cosponsor of this
bill, as well as Chairman Thurmond and Chairman Goldwater of
the Senate Intelligence Committee.
Mr. Chairman, the expeditious passage of this legislation in my
judgment is vital to the lives and safety of those Americans who
serve this Congress and this Nation on difficult and dangerous
missions abroad.
Now, Mr. Chairman, opponents of this legislation prevented its
coming to the floor of the Senate last year in the closing hours. As
a result, the 96th Congress completed its business without offering
us the opportunity for free debate and vote. Since that time, I am
told that the Covert Action Information Bulletin has published
additional names of alleged covert agents, and their editors have
traveled abroad to pursue this pernicious activity. As a conse-
quence, 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, 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
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. This point was reiter-
ated by Justice Oliver Wendell Holmes in the classic Espionage Act
decisions in 1919 when he stated:
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.
A second and equally important point is that if unlimited speech
interferes with the legitimate purposes 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 37 years at the Harvard Law School, wrote in his book
entitled "Free Speech in the United States" as follows:
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
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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 course 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.
It is evident, Mr. Chairman, that the activity of naming names
has given rise to unlawful acts, and that it has endangered the
lives and safety of American citizens abroad. I have already men-
tioned the murder of Richard 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 may
not know-and I think this is very important, Mr. Chairman and
members of the committee-is how terribly those events have af-
fected 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 assassina-
tion attempt on her husband and her family. Her children, one of
whose bedrooms was riddled by machinegun bullets, "did not un-
derstand 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 friend-
ships, withdraw from and reenter 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.
In the balancing of two important social interests, public safety,
and the search for truth, it is clear that the protection of the lives
of our agents overseas far outweighs a pattern of activities which
identifies and discloses the names of those agents. And I use the
term "pattern of activity," Mr. Chairman, because that is the lan-
guage in section 601(c) of the act.
In this regard, Mr. Chairman, I think it is essential, and it is
important to stress, that this bill would not prevent Mr. Philip
Agee from publishing the articles contained in his publications,
obnoxious though they might 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 his Covert Action
Information Bulletin which does contain articles purporting to be
based on research into U.S. intelligence operations at home and
abroad. I wish to stress this: This bulletin can continue to be
published. The only impact of this legislation would be on the
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section of the bulletin entitled "Naming Names." And here, Mr.
Chairman [indicating], is an example of "Naming Names." It sets
forth the names of alleged agents serving this Nation and this
Congress abroad.
I hope that this brief review of the constitutional questions will
show that the first amendment does not provide absolute protec-
tion for all speech; and that the Government can in certain circum-
stances 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 consid-
erations were very much in our minds 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 the time this morning to discuss
the specific provisions of S. 391, or to point out in detail how this
formulation reflects our proper concern for first amendment rights.
This has been the subject of previous testimony, and others will
testify this morning, and it is part of the extensive record on this
issue. I recommend the Intelligence Committee's Report on this
subject, as well as the published hearing record of both the Intelli-
gence and the 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 debate on this
issue, and in the hearings before the Senate Intelligence Commit-
tee, I have heard it suggested or implied that it should be accept-
able for people to disclose the names of covert agents if this infor-
mation 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 covert agents within
the Senate Intelligence Committee, and have even held a series of
? detailed hearings on the subject. Without going into specifics in
this session, I can assure you that there is no such list. What we
have found are unclassified official or semiofficial 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 identi-
fied. 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.
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 counterespionage, and after
considerable effort, cannot determine identities of covert agents
with some degree of accuracy. It is possible.
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It is the purpose of S. 391 to punish the publication of names
acquired through these techniques, regardless of whether the iden-
tification was made with reference to classified or unclassified
material. It is not the mechanism of identification which places
people's lives in jeopardy or threatens our intelligence capabilities;
it is the actual publication of the names as covert agents that does
so. It is the pattern of activity 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 reps rt S. 391
intact so that the interminable delays which seem to fol, aw any
change to a bill might be avoided. 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 5 years, more than 2,000 names of alleged CIA
officers have been identified and published by a small group of
individuals whose stated purpose 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.
Mr. Chairman, we send fellow Americans, we in the U.S. Con-
gress, members of the U.S. Government, abroad on dangerous mis-
sions. We owe it to them to do our utmost to protect their lives as
we go about our business.
Finally, Mr. Chairman, it has been my privilege as a member of
the Intelligence Committee to have traveled somewhat in different
sections of the world. In doing so, I make an attempt to meet with
our intelligence agent station chiefs and converse with them, dis-
cuss with them their problems, what we might do in the U.S.
Senate as Members of the Senate, as members of the Intelligence
Committee, to be more helpful to them in discharging their duties.
I can say, Mr. Chairman, that everywhere I go, without question,
unanimously the question is raised that the most disconcerting
activity that takes place, the most demoralizing activity, is the
publication of names in bulletins such as this [indicating]. Our
officers find it difficult to understand why nothing can be done
about this.
Mr. Chairman, I have a deep personal interest in seeing-and I
know this concern is shared by Members of the Committee here
and Members of the Senate throughout-to do the best we can to
protect the lives of our agents and their families abroad.
Thank you, Mr. Chairman. I would be glad to answer any ques-
tions that you might have.
Senator DENTON. Thank you very much, Senator Chafee. Your
Uncle Zachariah has spoken very well, and he shall become one of
my valuable sources of quotations. We do have the letter from Mrs.
Kinsman. I have read it and been much impressed by what that
lady had to say.
I will have no questions of our colleague. Would you, Senator
Leahy?
Senator LEAHY. I wonder if I just might, Mr. Chairman, with
your indulgence, ask a couple of questions. I have been singularly
impressed over the past several years that I have been on the
Intelligence Committee with how often we as a committee act with
complete unanimity. I would say we do so in the vast majority of
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circumstances, certainly far, far more than any other committee in
the U.S. Senate.
It is interesting, too, because the membership of the Intelligence
Community is made up with a very real effort to have a broad
ideological, and geographical mix, so it can be truly representative
of the U.S. Senate. I know of no issue where the Intelligence
Committee has spoken with stronger unanimity than our great
concern over the release of the names of our agents worldwide.
The people who serve us in the intelligence agencies around the
world-certainly all the ones I have met, and I have done the same
thing as you in visiting our people abroad-are dedicated individ-
uals. They are hard working. Many times they are operating under
serious disadvantages, personal disadvantages to their family,
themselves, in the way they are living and working. Many certain-
ly do not fit the image of a John Le Carre spy novel. They are
many times people who carry out what appear to be fairly mun-
dane things, but very necessary; certainly not the type who should
be expecting or anticipating being put in great personal danger,
and yet they are when their names are bandied about as being the
lead person for some American worldwide intelligence apparatus.
These persons may well be working on economic issues or some-
thing like that, but suddenly find that they are going to have to
defend their lives, and worse yet, defend the lives of their spouses
and children.
So there is no question that we want to put an end to the
pernicious practice of naming names of our cover intelligence per-
sonnel, especially in the case of the Covert Action Information
Bulletin where it is being done purposely to impede foreign intelli-
gence activities in the United States.
We all agree absolutely that that has to stop. What I am con-
cerned about is how we do it. The issues of the constitutionality of
section 601(c) have been raised. Philip Heymann has suggested
different language, and so on.
Maybe it is a philosophical question, John, that I have more than
anything else. Do we run a great risk-even a greater risk in some
ways-if we passed the bill, and if section 601(c) were to be found
unconstitutionally broad? In some ways, is that not a greater risk?
If that is the result of this effort, haven't we opened the floodgates,
wouldn't it take years to restore any sense of security not only to
our own personnel but to those that may act against them?
A number of constitutional scholars have said it would not be
constitutional unless it contained an element of malicious intent or
bad purpose. Do you think we should adopt that approach?
Senator CHAFEE. First, Mr. Chairman and Senator Leahy, I want
to pay tribute to the work you have done on the Senate Intelli-
gence Committee, a very valuable member and you have as great
concern in this area as any one member of the committee. I know
that you have worked extremely hard to devise an approach in
which we might solve this problem which bedevils all of us.
This section 601(c) has had support from the Justice Department.
The version that is in the House is somewhat different in that it
has an "intent" standard-what the Justice Department calls a
"subjective standard of intent," whereas you will notice on line 4 in
the bill where it uses the word "intended" in connection with the
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"pattern of activities," that is described as an "objective standard
of intent," one that is not in the mind but can be weighed objec-
tively.
So in answer to your question, it seems to me that what we have
done here is to replace the subjective standard of intent with a
more objective standard which requires that the disclosure must be
"in the course of a pattern of activities intended to identify and to
expose covert agents and with reason to believe that such activities
would impair and impede the foreign intelligence activities of the
United States."
I do not think it has to be done with any malicious intent,
because we have described the action. It is like-I suppose analo-
gies are always dangerous-shooting somebody. You shoot them,
and whether you do it with "intent" or not to murder them, it is a
"killing" and it is punishable.
Senator LEAHY. But you do recognize philosophically the problem
that we would face? That if we were to pass one part of the statute
and have it held unconstitutional, that it would almost encourage
these activities?
Senator CHAFEE. Well, I do not think so, because I do not think
that if this were found unconstitutional-I am not accepting the
assumption-but if it were found unconstitutional, I just do not
think responsible American citizens are going to go out and say:
Three cheers! We can now publish all the names of all the agents
we can discover, and we will do it freely.
I mean, I do not believe that the mass majority of Americans are
going to do this. There is a limited group that is doing it now. But
it is enough to cause damage.
Senator LEAHY. Well, let me take Mr. Agee and Mr. Wolf"s
activities. Would those not fall clearly within that "bad purposes"
test, the test suggested by Mr. Heymann, and by the House lan-
guage?
Senator CHAFEE. I am not sure I get your question.
Senator LEAHY. Well, would not the kind of thing that we seem
to be zeroing in on, would not that fall under the more restrictive
language that has been suggested by the Department of Justice
and suggested by the House bill?
Senator CHAFEE. Well, the Department of Justice approves this
language.
Senator DENTON. If you would yield, sir?
Senator LEAHY. Sure.
Senator DENTON. The delay which I mentioned was due to their
consideration of the wording, and the ultimate judgment was in
favor. There is total confidence that it is constitutional.
Senator LEAHY. Let me go to another question. How does this
affect those things that seem to pervade all administrations, Re-
publicans and Democrats, the so-called authorized leak? So I will
not appear to be partisan, I will just take the last 4 years. There
was one person at a high level in the administration who appeared
to virtually have a member of one of the larger newspapers in this
country on his payroll given the way leaks would flow through to
him. We sometimes had to hurriedly schedule meetings of our
intelligence committees so that we could be briefed by the intelli-
gence community prior to-or at least within a few days of having
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read the same material on the front page of that particular news-
paper. Does this bill involve that sort of thing?
Senator CHAFEE. This solely deals with "names."
Senator LEAHY. Then let me just ask you one last question,
because I understand that the "pattern" could be a series of events
leading up to just one publication; it does not necessarily mean by
a "pattern" a series of publications, but a series of events, rather,
that may lead to just one publication.
We heard testimony here on the origins and support of interna-
tional terrorism in this subcommittee recently. We had Claire Ster-
ling, the journalist Michael Ledeen, and Arnold De Borchgrave.
Now all of these authors have named a source who could fall under
the definition of "covert agent" contained in the bill. They used
that source to make their case that the Soviet Union was support-
ing international terrorism.
Now I do not believe by any stretch of the imagination that any
of these authors wrote with the intent of impairing or impeding
the effectiveness of the foreign intelligence activities of the United
States. But they were all told, as I understand it, by U.S. Govern-
ment sources, that they were wrong in their conclusions.
Now could the objective standard of "with reason to believe that
such activities would impair or impede the foreign intelligence
activities in the United States" have had a chilling effect on their
ability to use and name a high-caliber source to prove a point
which the U.S. Government continues to deny?
Senator CHAFEE. Well, I do not know the facts of that exact case,
but there are a whole series of hurdles that have got to be over-
come before you can achieve a successful prosecution under this
section 601(c). There are six of them.
First, that there was an intentional disclosure which did in fact
identify a covert agent.
Second, that the disclosure was made to an individual not au-
thorized to receive classified information.
Third, that the person who made the disclosure knew the infor-
mation identified a covert agent.
Fourth, that the person who made the disclosure knew that the
United States was taking affirmative measures to conceal the
agent's classified intelligence affiliation.
Fifth, that the disclosure was made in the course of a pattern of
activities.
And sixth, that the person making the disclosure had reason to
believe that his activities would impair or impede the foreign intel-
ligence activities of the United States.
Now those are pretty big hurdles to jump.
Senator LEAHY. I understand. I can think of things I have read-
well, to be totally bipartisan about it-things I have read in the
last 6 years since I have been in the Senate, based on the knowl-
edge that I had first in the Armed Services Committee and then on
the Intelligence Committee, material that has gone from high ad-
ministration officials, both Republican and Democratic administra-
tions, directly to members of leading news media in this country
that would fall under every one of those tests, and were published
in the newspapers or within the electronic media. The leaks came
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directly by high officials of both Republican and Democratic admin-
istrations that fall directly under that.
Senator CHAFEE. With the names? I think that is probably the
difference.
Senator LEAHY. Well, the definition of "names," if you use a
source that could only be one conceivable person that it could come
from, or one conceivable place that it could come from, that is the
same as the name.
Senator DENTON. If the Senator would yield, I do have two specif-
ic pieces of answers to two previous questions he made reference
to.
One is the mentioning of names by Messrs. de Borchgrave and
Ledeen and Mrs. Sterling. In every case which we know of, the
names named were all taken from foreign sources, meaning that
the agencies inimical to our interests already had the names. This
Department of Justice ruling was dated February 25. We did not
get it until about the last part of March. But one sentence which
does directly address your question about "with reason to be-
lieve"-that is, the constitutionality or advisability of that-the
relevant quote says: "The Department supports Section 601(3)(c)'s
requirement that an individual must act with reason to believe
that such activities would impair or impede the foreign intelligence
activities of the United States." They go on to say that: "This is
preferable to the House version of the bill, H.R. 4, which requires
that an individual must act with the intent to impair or impede
the foreign intelligence activities of the United States."
For what it is worth, those are the closest responses I can make
to those two questions.
With regard to the high officials leaking names, if that is what
we are getting into I am personally interested in trying to tighten
up the punitive measures which might deter such leaks when they
are against the security of the United States.
Senator LEAHY. Unfortunately, administrations have for years
leaked when they think it is to their benefit. We usually catch hell
for it up here, because people start talking about all the leaks from
Congress. With respect to the Intelligence Committee at least, I
know of no leak that has ever come out of that committee; but I
know of an awful lot of hours of frustration that both Senator
Chafee and I have expressed at leaks that have come elsewhere.
I realize, Mr. Chairman, that you have an awful lot of other
witnesses, and I will forego any other questions. I simply want to
establish the fact that there is certainly unanimity within the
Senate on the desire to protect the names of agents. We do not
want our agents' names bandied about. They are operating under
enough problems as it is. Their own safety, the safety of their
families is going to become more and more difficult, and it is
already becoming more and more difficult to recruit good men and
women for a job that is absolutely essential to the security of the
United States. I think that good intelligence, properly used, is one
of the best guarantees of freedom in the world, and one of the best
guarantees that we do not stumble into such things as what would
be the worst case, of course, an accidental nuclear war.
So we must have it, and we must protect the identity and the
safety of those agents. But I also want to make sure, however, that
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in doing so we do not infringe, first, on the basic constitutional
rights that we are ultimately trying to protect for all of us. And
second, that we do not pass legislation which may ultimately be
overturned, for whatever reason; because I think that that would
exacerbate the situation even further.
So we are all striving for the same end, and I raise the questions
to make sure that when we finally come out with a bill it will be
the best one possible. And I compliment Senator Chafee on this. I
think in the Intelligence Committee he has been a yoeman in the
work that he has done in trying to educate all the rest of us, Mr.
Chairman, in working with us and in trying to bring together the
disparate views on the whole subject.
Thank you.
Senator CHAFEE. Well, thank you, Senator Leahy. Again, I appre-
ciate the efforts that you are making, along with all the rest of us,
to arrive at a successful solution to this problem.
I would just conclude by making two brief points. First, the
whistleblower problem is taken care of on page 4 of section 601(c)
where it does provide that it is perfectly permissible to go to the
Intelligence Committees, as you pointed out.
Second, in some of the testimony we had last year the point was
made by opponents to this act that there have been all of these
publications of names-and I think I mentioned in my testimony
some 2,000 names-and only 1 person has been murdered, and only
1 agent has been murdered, and only 1 house or a few houses have
been shot up, so why bother passing legislation?
To me, Mr. Chairman, I do not buy that argument. First of all, I
do not think anybody should be murdered or endangered. But
second, and I am sure you can adduce this from the testimony of
the Director, the effect of these names on our ability to function
has been severe. Regardless of whether it is a murder of an agent
or not, or the shooting up of a home, the deleterious effect on our
intelligence operations has been severe.
So I just hope that no one succumbs to the argument that there
have been 2,000 names, and only 1 person murdered, so why
bother?
Senator LEAHY. I do not think anybody is going to buy that
argument here.
Senator CHAFEE. I do not think any of us will take that argu-
ment.
Senator DENTON. And we recognize that, aside from the loss of
life or the injury to individuals, the neutralization of their function
by revealing their names, is a deleterious effect on our security.
Thank you very much, Senator Chafee, for your testimony here
this morning.
Senator CHAFEE. Thank you, Mr. Chairman. I appreciate it.
Senator DENTON. Mr. Casey has a Cabinet meeting at 11:30, and
we are going to try to expedite our questions so that he will be
prompt in making that meeting.
We will ask William J. Casey, the Director of the Central Intelli-
gence Agency, to come forward. Would you wish, Mr. Casey, your
two colleagues to accompany you? John Stein, Acting Deputy Di-
rector of Operations, and Fred Hits, Legislative Counsel for the
CIA.
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STATEMENT OF WILLIAM J. CASEY, DIRECTOR, U.S. CENTRAL
INTELLIGENCE AGENCY, ACCOMPANIED BY JOHN H. STEIN,
ASSOCIATE DEPUTY DIRECTOR FOR OPERATIONS, CIA; AND
FRED HITS, LEGISLATIVE COUNSEL, CIA
Mr. CASEY. I am pleased to be here, and I would ask that my
prepared statement be inserted in the record, and I will give you
the gist of my statement orally.
Senator DENTON. It shall be done, sir.
Mr. CASEY. Early last month I appeared before the House Intelli-
gence Committee on legislation and testified on the House version
of this bill. With both chambers considering this legislation, I am
very hopeful that we will soon see enactment of a measure that
will finally put an end to the pernicious and damaging unauthor-
ized disclosures of intelligence identities.
We need criminal penalties as soon as possible on the unauthor-
ized disclosure of information identifying certain individuals en-
gaged or assisting in the foreign intelligence activities of the
United States. This administration believes that the passage of the
Intelligence Identities Protection Act is essential to the mainte-
nance of a strong and effective intelligence apparatus. Enactment
of this legislation is vital to President Reagan's determination and
commitment to enhance the Nation's intelligence capabilities.
Mr. Chairman, there exists a tiny group of Americans who
openly proclaim themselves to be devoted to the destruction of the
Nation's foreign intelligence agencies. This group has engaged in
activities avowedly aimed at undermining the Nation's intelligence
capability through the identification and exposure of undercover
intelligence officers.
Those perpetrating these disclosures understand correctly that
secrecy is the lifeblood of an intelligence organization, and that
disclosure of the individuals engaged in that activity and whose
identity is deliberately concealed will disrupt, discredit, and they
hope ultimately destroy an agency such as the CIA.
Some of the persons engaged in this activity have actually trav-
eled to foreign countries with the aim of stirring up local antago-
nism to U.S. officials through thinly veiled incitements to violence.
Mr. Chairman, I might say that since taking the post of Director
of the Central Intelligence Agency only a few months ago, I can
confirm that these disclosures have resulted in untold damage and,
if not stopped, will result in further damage to the effectiveness of
our intelligence apparatus and to the Nation itself.
I am appalled at the degree to which concerted activity is being
carried out around the world to destroy the capacity which is
critical to our national security, and which has been painstakingly
developed over many years with the full participation and support
of the Congress and an investment of many billions of dollars.
The traggic results of these unauthorized disclosures have been
reviewed by Senator Chafee so well that I will not take your time
to go into all the details, except to say that just a few weeks ago six
Americans were expelled from Mozambique following charges of
engaging in espionage. These expulsions followed and were directly
attributable to visits to that country by members of the Cuban
Intelligence Service and the editors of the Covert Action Informa-
tion Bulletin.
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So this is a continuing threat that hangs over our heads which
can result in serious damage, increasing discouragement, and re-
tirements of people engaged in this activity who have developed
years of experience which is enormously valuable to our national
security.
Mr. Chairman, I do not think it necessary to go into great detail
about the adverse effects that these disclosures are having. Simply
put: The credibility of our country and its relationship with foreign
intelligence services and individual human sources, the lives of
patriotic Americans serving their country, and the effectiveness of
our entire intelligence apparatus are being placed in jeopardy
daily.
Extensive hearings before the House and Senate Intelligence and
Judiciary Committees have documented these damaging effects.
The underlying basic issue is the fact that our ability to continue
to recruit and retain human sources of intelligence whose informa-
tion could be crucial to the Nation's survival in an increasingly
dangerous world, our equally important relations with the intelli-
gence services of other nations, are in continuing jeopardy as long
as we are exposed to this threat.
It is important to understand what legislation in this area seeks
to accomplish. It seeks to protect the secrecy of the participation or
cooperation of certain persons in the Foreign Intelligence Service
of the United States. These are activities which have been author-
ized by the Congress, activities which we as a nation have deter-
mined to be essential. Secrecy is essential to the safety and effec-
tiveness of the case officers and the agents, without which no
intelligence service can operate. It is essential to get individuals to
undertake this delicate, demanding, and frequently dangerous
work.
No existing statute clearly and specifically makes the unauthor-
ized disclosures of intelligence identities a criminal offense. As
matters now stand, the impunity with which unauthorized disclo-
sures of intelligence identities can be made implies a Government
position of neutrality, of not caring about the matter. It suggests
that U.S. intelligence officers are fair game for those members of
our own society who take issue with the existence of the CIA, or
find other perverse motives for making these unauthorized disclo-
sures.
I might say that other intelligence services around the world,
and other nations, the leaders of other nations, witness this con-
tinuing specter where the United States leaves its people who have
undertaken this work exposed to this kind of risk and look at it
with amazement. You hear it wherever you go.
I believe it is important to emphasize that the legislation which
you are considering today is not an assault on the first amend-
ment. It would not inhibit public discussion and debate about U.S.
foreign policy or intelligence activities. It would not operate to
prevent the exposure of allegedly illegal activities or abuses of
authority. It is carefully crafted and narrowly drawn to deal with
conduct which serves no useful informing function whatsoever. It is
not related to alleged abuses. It does not bring clarity to issues of
national policy. It does not enlighten public debate. It does not
contribute to an enlightened and informed electorate.
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Mr. Chairman, there is virtually no serious disagreement over
those provisions of this legislation which impose criminal penalties
on the unauthorized disclosure of intelligence identities by those
individuals who have had authorized access to classified informa-
tion. Controversy has centered on subsection 601(c) of S. 391 which
imposes criminal penalties on the disclosure of information identi-
fying a covert action by anyone under certain specified conditions.
Disclosure of intelligence identities by persons who have not had
authorized access to classified information will be punishable only
under certain specified conditions which have been carefully craft-
ed and narrowly drawn so as to encompass persons only engaged in
an effort or pattern of activities designed to identify and expose
intelligence personnel and impair our intelligence capabilities
thereby.
The proposed legislation also contains offenses and exceptions
which reinforce this narrow construction. It is instructive in this
regard to look at the elements of proof that would be required in a
prosecution under this section, keeping in mind that the Govern-
ment would have to prove each of these elements beyond a reason-
able doubt.
The Government would have to show that there was an inten-
tional disclosure of information which did in fact identify a cover
agent;
That the disclosure was made to an individual not authorized to
receive classified information;
That the person who made the disclosure knew that the informa-
tion disclosed did in fact identify a covert agent;
That the person who made the disclosure knew that the United
States was taking affirmative measures to conceal the covert
agent's classified intelligence affiliation;
That the individual making the disclosure did so in the course of
a pattern of activity intended to identify and expose a covert agent;
And that the disclosure was made "with reason to believe that
such activities would impair or impede the foreign intelligence
activities of the United States."
Because of these strict conditions which narrowly define the
prohibited conduct, I believe it is clear that this subsection is
directed at conduct which the Congress has the authority and
power to proscribe consistent with the first amendment, and that
this bill does so in a constitutional manner.
Mr. Chairman, I understand that the Department of Justice
believes that the Senate version of the bill better captures the
concerted nature of the activity which is intended to be proscribed
than does the House bill, and that there are prosecutorial and
evidentiary advantages to the Senate language. I believe the De-
partment's witness will speak to this matter.
Mr. Chairman, S. 391 will deal with a clear and immediate
danger which currently each and every day endangers our intelli-
gence activities, our staff officers, and the lives of those who are
cooperating with our Nation abroad.
I want to express my gratitude and appreciation to the subcom-
mittee for so promptly bringing this legislation forward, and to
reiterate the hope that it will be enacted into law as quickly as
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possible so that this intolerable situation is remedied and no longer
permitted to exist.
I will be happy, Mr. Chairman, to answer any questions that you
or anybody else may have.
Senator DENTON. Thank you, Mr. Casey, for your most expert
and helpful testimony. I will be very brief in my questioning in
view of your time constraints.
Let me say at the outset that, while you have evinced your sense
of being appalled at the situation which we are now addressing-
with such incredible tardiness-from my own background and per-
sonal contact with high-ranking Communists, I can assure you that
they too are amazed, amused, and highly pleased that such a
situation exists.
I did hear you say, sir, that there is no existing legislation which
adequately deals with the problems of disclosure which S. 391 is
formulated to address. May I ask what steps, if any, the CIA may
have taken to tighten up its security practices and cover for its
own agents and sources? And would the Agency develop standards
for cover sufficient to protect its covert employees from identifica-
tion, if this bill is passed and prosecuted properly?
Mr. CASEY. Well, we take extensive precautions to equip our
agents, and indeed our case officers with cover and identities which
facilitate the conduct of their task that is assigned to them, and to
protect them from both disclosure and identification by foreign
intelligence services, and disclosure and violence from any source.
Senator DENTON. Can congressional oversight and legitimate offi-
cial and unofficial scrutiny of intelligence activities take place
without the likely revelation of intelligence identity?
Mr. CASEY. Well, our experience with congressional oversight and
the informing of the relevant committees about our proposed and
actual operations has not resulted in any serious disclosure at all,
as far as I know. Much of the conversation which takes place with
the committees generally describes what we intend to do and the
risks and other things that may be involved that seem relevant to
the adequate understanding and proper oversight, and very unusu-
ally does it take us into identifying the particular individuals who
will undertake the particular mission. So I do not see any risk
there at all for the oversight process.
Senator DENTON. My final question, sir. I am not a lawyer, but I
cannot help but be somewhat impressed that the offense which we
are trying to establish as culpable would only result in a punish-
ment of a fine not to exceed $15,000 and imprisonment of not more
than 3 years or both. This seems inadequate considering the deaths
which have resulted and the harm to our national security which
can be translated in terms of peacetime terroristic activities or
wartime situations into deaths.
In your opinion, are the penalties provided in S. 391 sufficient or
severe enough for the proscribed activities mentioned in the bill?
Mr. CASEY. Well, I would not be opposed to more severe penal-
ties. I believe, however, the fundamental requirement is that we
establish the illegality of this action, the criminal nature of this
activity, and that we do that as promptly as possible. So I would
not be inclined to encourage the imposition of more severe penal-
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ties if that were to result in a delay in the enactment of the
legislation.
Senator DENTON. I entirely agree, sir.
Senator Leahy?
Senator LEAHY. Thank you, Mr. Chairman.
Mr. Casey, I am always delighted to see you before any of our
committees. I would also want to commend your department for
some help that they provided for me and my staff during the past
few weeks. It was extremely well done and very professionally
done, and I appreciate it.
Mr. CASEY. Your visits were very helpful to the morale and spirit
of our people.
Senator LEAHY. Thank you, sir.
I found an interesting thing in preparing for this that the Ameri-
can Civil Liberties Union and the Heritage Foundation in what
was probably an historic moment held hands on one major item;
that they feel that the issue is not so much disclosure made by the
press or public, but the question of adequate cover for intelligence
officers abroad, something touched on by the chairman earlier.
I am concerned about that, as I know you are and I know others
here, I see Mr. Maury in the audience, and others who have
expressed the same concern in one regard or another. I know that
many agents' identities have been uncovered through the use of
the State Department's "Biographic Register," I must admit an
item that I was not aware of until I got on the committee and
started looking through a copy of it. I understand that register is
no longer in general circulation, but it is still published as an
unclassified document.
Have you discussed the problem this might create with Secretary
Haig?
Mr. CASEY. Yes, I have, Senator. I think generally speaking we
are getting a high degree of cooperation on the provision of official
cover. There has been some thought of resuming the publication of
the State Department's "Biographical Register," and that is under
discussion now, the impact it would have or might have on protect-
ing cover. I think we will get full cooperation in the executive
branch with respect to all steps necessary to provide maximum
cover.
Senator LEAHY. It occurs to me that both the ACLU and the
Heritage Foundation are correct in suggesting that no matter what
kind of laws we might have, if we do not have adequate cover there
is always going to be somebody, for one reason or other, who is just
going to look to something which is relatively easy to decipher and
make a big thing out of just passing out the deciphered informa-
tion, no matter what their motivation might be.
Mr. CASEY. Even the State Department's "Biographic Register"
took a certain amount of interpretation. It was not always accu-
rate; but with the nature of this kind of activity, it does not really
matter too much whether it is accurate or inaccurate, insofar as
the damage it imposes and the disrespect and impairment of
morale it creates. So the publication of false information is almost
as damaging as the publication of the correct information.
It is really the pattern of activity that I think the legislation will
address, and the thing that needs to be proscribed.
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Senator LEAHY. Do you know, or has your office come across
cases where the names of agents were disclosed with reason to
believe that that disclosure would impair or impede the foreign
intelligence activities of the United States, but at the same time
felt that the person did so without any intent of neutralizing the
agent or impairing our intelligence activities?
Mr. CASEY. Well, I think that there has been occasional publica-
tion in the press which divulged the name in the course of writing
an article intended to generally inform the public; yes. I do not
believe that that kind of a one-shot publication would be reached
by this legislation, which it is clearly not designed to reach.
This bill goes to the active use of the information for a particular
purpose in a particular way. As Senator Chafee's distinguished
uncle put it.
It is not the swinging of the arm that is proscribed; it is the smashing of the nose.
Senator LEAHY. But you also agreed, however, that under this
law we could be dealing simply with one publication, but a series of
events leading up to it.
Mr. CASEY. Well, we could be; yes. There you have got "acted in
the course of a pattern of activities intended to identify and
expose." Unless the primary purpose is to divulge a single agent's
name, I do not think it would be reached. You have to have a
course or a pattern of activities intended to identify.
Senator LEAHY. But it could be one disclosure, but a pattern of
activities leading up to one disclosure.
Mr. CASEY. The disclosure I think would have to be part of a
pattern of activities.
Senator LEAHY. But it could be a single exposure.
Mr. CASEY. It could be a single publication.
Senator LEAHY. I may have other questions, Mr. Chairman, but I
will submit them for the record. I know the Director has to go to a
Cabinet meeting.
Senator DENTON. Thank you.
And I think I should communicate here that Senator Biden is
delayed because of a train accident, all the trains being held up. He
will be here as soon as possible.
We would like to thank you very much, Mr. Casey, and hope that
you get to your Cabinet meeting on time, sir.
Mr. CASEY. I appreciate it very much. Thank you.
[Prepared statement of William J. Casey follows, plus responses
to questions by Senator Leahy:]
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PREPARED STATEMENT OF WILLIAM J. CASEY
DIRECTOR OF CENTRAL INTELLIGENCE
Mr. Chairman, Members of the Subcommittee, I am pleased
to be appearing before the Subcommittee on Security and
Terrorism, which is considering S. 391, the "Intelligence
Identities Protection Act." Early last month, I appeared
before the House Intelligence Subcommittee on Legislation to
testify on the House version of the Bill. With both chambers
considering this legislation I am hopeful that we will soon
see enactment of a measure which will finally put an end to the
pernicious and damaging unauthorized disclosures of intelligence
identities.
The Intelligence Community's support for legislation to
provide criminal penalties for the unauthorized disclosure
of information identifying certain individuals engaged or
assisting in the foreign intelligence activities of the
United States is well known. I want to emphasize that this
Administration believes that passage of the "Intelligence
Identities Protection Act" is essential to the maintenance
of a strong and effective intelligence apparatus. Enactment
of this legislation is an important component of the Adminis-
tration's effort to implement President Reagan's determination
to enhance the nation's intelligence capabilities.
Mr. Chairman, there exists a coterie of Americans who have
openly proclaimed themselves to be devoted to the destruction
of the nation's foreign intelligence agencies. This group has
engaged in actions avowedly aimed at undermining the nation's
intelligence capabilities through the identification and
exposure of undercover intelligence officers. The perpetrators
of these disclosures understand correctly that secrecy is
the life blood of an intelligence organization and that
disclosures of the identities of individuals whose intelli-
gence affiliation is deliberately concealed can disrupt,
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discredit and--they hope--ultimately destroy an agency such
as the CIA. Some of the persons engaged in this activity
have actually traveled to foreign countries with the aim of
stirring up local antagonism to U.S. officials through
thinly veiled incitements to violence. Mr. Chairman, I
might say that since taking the position of Director of
Central Intelligence only a few months ago I can confirm
that these unauthorized disclosures have resulted in untold
damage, and, if not stopped, will result in further damage
to the effectiveness of our intelligence apparatus, and hence
to the nation itself. I might also say that I am appalled at
the degree to which concerted activity is being carried out
around the world to destroy a capacity which is critical to
our national security and which has been painstakingly
developed over many years with the full participation of
the Congress and an investment of billions of dollars.
The tragic results of unauthorized disclosures of intelligence
identities are well known. Five years ago, Richard welch was
murdered in Athens, Greece. Last July, only luck intervened
to prevent the death of the young daughter of a U.S. Embassy
officer in Jamaica whose home was attacked only days after
one of the editors of a publication called Covert Action
Information Bulletin appeared in Jamaica, and at a highly
publicized news conference gave the na-,:i, addresses,
0 telephone numbers, license plates, and descriptions of the
cars of U.S. government employees whom he alleged to be CIA
officers. Most recently, six Americans were expelled from
Mozambique following charges of engaging in espionage.
These expulsions followed visits to that country by members
of the Cuban intelligence service and the editors of the
Covert Action Information Bulletin.
Extensive hearings before the Senate and House Intelligence
Committees and before the two Judiciary Committees during the
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96th Congress documented the pernicious effects of these
unauthorized disclosures. Obviously, security considerations
preclude my confirming or denying specific instances of purported
identification of U.S. intelligence personnel. Suffice it to
say that a substantial number of these disclosures have been
accurate. Unauthorized disclosures are undermining the
Intelligence Community's human source collection capabilities
and endangering the lives of our intelligence officers in the
field. The destructive effects of these disclosures have
been varied and wide ranging.
Our relations with foreign sources of intelligence have
been impaired. 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 information 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 discernible results
of continuing disclosures include reduction of contact and
reduced passage of information. In taking these actions, some
foreign services have explicitly cited disclosures 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 protect 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 substantially and sometimes irreparably damaged. They must
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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 experience and linguistic skills are lost.
Reassignment mobility of the compromised officer is impaired.
As a result, the pool of experienced CIA officers available
for specific overseas assignments 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 organization. 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 organizations.
It is also essential to bear in mind that the collection of
intelligence is something of an art. The success of our officers
overseas depends 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. Unauthorized disclosure of identities information
destroys that chemistry.
Mr. Chairman, I do not think it is necessary or advisable
to go into greater detail about the adverse effects that
unauthorized disclosures of intelligence identities are having
on the work of our nation's intelligence agencies. Simply put,
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the credibility of our country and its relationships with
foreign intelligence services and individual human sources, the
lives of patriotic Americans serving their country, and the
effectiveness of our intelligence apparatus are all being
placed in jeopardy. The underlying basic issue is the fact
that our ability to continue to recruit and retain human
sources of intelligence whose information could be crucial to
the nation's survival in an increasingly dangerous world, and
our equally important relations with the intelligence services
of other nations are in continuing jeopardy.
It is important to understand what legislation in this area seeks
to accomplish: It seeks to protect the secrecy of the participation
or cooperation of certain persons in the foreign intelligence
activities of the U.S. Government. These are activities which have
been authorized by the Congress; activities which we, as a nation,
have determined are essential. No existing statute clearly and
specifically makes the unauthorized disclosure of intelligence
identities a criminal offense. As matters now stand the impunity
with which unauthorized disclosures of intelligence identities can
be made implies a governmental position of neutrality in the matter.
It suggests that U.S. intelligence officers are "fair game" for those
members of their own society who take issue with the existence of CIA
or find other perverse motives for making these unauthorized
disclosures.
Mr. Chairman, I believe it is important to emphasize that the
legislation which you are considering today is not an assault upon
the First Amendment. The "Intelligence Identities Protection Act"
would not inhibit public discussion and debate about U.S. foreign
policy or intelligence activities, and it would not operate to
prevent the exposure of allegedly illegal activities or abuses of
authority. The legislation is carefully crafted and narrowly
drawn to deal with conduct which serves no useful informing
function whatsoever; does not alert us to alleged abuses; does
not bring clarity to issues of national policy; does not enlighten
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public debate; and does not contribute to an educated and informed
electorate.
The Bill creates three categories of the offense of disclosure
of intelligence identities:
a. Disclosure of information identifying a "covert
agent" by persons who have or have had authorized access
to classified information that identifies such a covert
agent. This category covers primarily disclosure by
intelligence agency employees and others who get access
r
to classified information that directly identifies
"covert agents";
b. Disclosure of information identifying a "covert
agent" by persons who have learned the identity as a result
of authorized access to classified information. This
category covers disclosures by any person who learns
the identity of a covert agent as a result of government
service or other authorized access to classified
information that may not directly identify or name a
specific "covert agent;" and
c. Disclosure of information identifying a "covert
agent" by anyone, under certain specified conditions
outlined below.
There is virtually no serious disagreement over the provisions
of the legislation which provide criminal penalties for the unauthorized
? disclosure of intelligence identities by individuals who have had
authorized access to classified information. Controversy has centered
around subsection 601(c) of S. 391.
Disclosures of intelligence identities by persons who have
not had authorized access to classified information would be punish-
able only under specified conditions, which have been carefully
crafted and narrowly drawn so as to encompass only persons engaged
in an effort or pattern of activities designed to identify and
expose intelligence personnel. The proposed legislation also
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38
contains defenses and exceptions which reinforce this narrow
construction. It is instructive, in this regard, to look at the
elements of proof that would be required in a prosecution under
subsection 601(c) of S. 391, keeping in mind that the government
would have to prove each of these elements beyond a reasonable doubt.
The government would have to show:
-- That there was an intentional disclosure of infor-
mation which did in fact identify a "covert agent;"
-- That the disclosure was made to an individual not
authorized to receive classified information;
-- That the person who made the disclosure knew that
the information disclosed did in fact identify a covert agent;
-- That the person who made the disclosure knew that the
United States was taking affirmative measures to conceal the
covert agent's classified intelligence affiliation;
-- That the individual making the disclosure did so
in the course of a pattern of activities intended to identify
and expose covert agents; and,
-- That the disclosure was made with reason to believe
that such activities would impair or impede the foreign
intelligence activities of the United States.
Because of these strict conditions, which narrowly define
the prohibited conduct, I believe it is clear that subsection
601(c) is directed at conduct which the Congress has the
authority and power to proscribe consistent with the First
Amendment, and that this Bill does so in a constitutional
fashion.
Mr. Chairman, I understand that the Department of
Justice believes that the Senate version of the Bill better
captures the concerted nature of the activity which is
intended to be proscribed than does the House Bill, and
that there arc r s__ *_orial and evidentiary advantages to the
Senate language. I believe that the Department's witness will
speak to this matter.
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39
Mr. Chairman, S. 391 will deal with a clear and immediate
danger which currently--each and every day--endangers our
intelligence activities, our staff officers, and the lives
of those who are cooperating with our nation abroad. I want
to express my gratitude and appreciation to the Subcommittee
for so promptly bringing this legislation forward and
reiterate the hope that it will be enacted into law as
quickly as possible so that this intolerable situation is
remedied.
I will be happy to answer any questions you may have.
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aTitifcb _fafes ,`- enafc o, .a rv~
WASHINGTON. O.C. 20510 ~Ni E~~iG ErvCE
Mr. I%i I I i am Casey
Director of Central Intelligence
Central Intelligence Agercy
liashington, D.C. 20505
Dear Mr. Casey:
I want to thank you again for your most helpful testimony
on S. ..-591, the Intelligence Identity's Protection Act of 1951.
I would like to get your response, for the record, to three
additional questions which time did not permit me to ask at the
hearing on Friday. They are as follows:
1) You have testified that you have a preference for
the "reai.on to believe" language of Section 601 (c)
contained in S. 591, as opposed to the "with the intent
to impair or impede" language of Section 601 (c) contained
in H.R. 4. 1 understand that the Justice Department is
of the view that this element of the crime would be easier
to prove under the language of the Senate Bill than that
contained in the House version. My question is, do you
know of actual circumstances where the names of agents
were disclosed with reason to believe that disclosure
would impair or impede the foreign intelligence activities
of the United States, but the person did so without any
intent of neutrali2ing a covert agent or impairing or
impeding our intelligence activities? (I understand that
you may not be able to submit the answer to this question
for the public record.)
2) By letter dated April 29, 1981, to the House Permanent
Select Committee on Intelligence, you suggested a technical
amendment to H.R. 4. You suggest including the offenses
contained in H.R. 4, the offenses listed in the Privacy
Protection Act of 1950, the Stanford Daily legislation,
which would give rise to a newsroom search and seisure.
You did not raise this amendment in your testimony before
the Subcommittee on Security and Terrorism. 1) Is this
because you have changed your position? 2) If you have
not chanted your position, why do you believe it is
necessary to expand the list of exemptions to the subpoena-
only standard set up in the Stanford Daily legislation?
;) ,lave you consulted with the Department of Justice
:ho,ut sot ling this .:mend-.ent to H.R. 4?
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31 In reporting the Privacy Protection Act of 1990, the
Sou: to Judiciary Committee recognized a legal controversy
concerning 19 U.S.C. 793, which covers the espionage
offense of gathering transmitting or losing defense
information. The controversy concerned whetner that
statute required proof of intent to injure the United
States or give advantage to a foreign power. There is
a conflict of judicial authority on this point. The
Committee stated in its report on the bill:
Obviously, the Committee does not attempt to
scttIe this controversy in this hill. However
to the extent that S. 1790 provides a suspect
exception related to the national security statutes
'Jn ch are stated, it is the intent of the Committee
that with regard to 1s U.S.C. X93 the suspect
exception to the ban on searches would apply only
if there ens an allegation of an intent to injure
the United States or give advantage to a foreign
power. For the purposes of this Act, the govern-
neat shah recognize the higher standard, the
recui remcnt of intent, before utilizing the suspect
exception for searches for materials sought under
is U.S.C_ 793.
S. 591 presents a similar problem to the Committee if
it is to consider a simultaneous amendment to the Privacy
Protection Act of 1980. Assuming the Committee considers
sons: amendment to the Stanford Daily legislation, would
you support including only section 601 (a) and 601 (h) in
the list of exempted statutes, that is, would you support
eli?nination of section 601 (c) which presently does not
contain an intent to injure standard?
I look forward to receiving your responses to these
questions.
PATRIC}1 J. 1.03111
United States Senator
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Honorable Patrick J. Leahy
United states Senate
Kashington, D.C. 20510
Dear Senator Leahy:
This is in response to your letter of 12 May in which
you posed a number of questions concerning S. 391, the
"Intelligence identities Protection Act."
With regard to your first question, the Administration
believes that from a prosecutorial perspective the Senate's
subsection 601(c) "reason to believe" standard is preferable
to the "intent to impair or impede" language of H.R. 4. The
Department of Justice is in the best position to evaluate the
practical evidentiary problems that can develop in a criminal
prosecution. Although it might appear that past disclosures
which would have met all of S. 391's other criteria and which
also would have met the requisite "reason to believe" standard
have been accompanied by something like an "intent of
neutralizing a covert agent or impairing or impeding our
intelligence activities," the Administration's concern is that
it could be difficult to prove beyond a reasonable doubt the
kind of subjective intent as to purpose now contained in
H.R. 4, Such proof might be particularly troublesome if an
unauthorized disclosure were to be accompanied by a declaration
that its ultimate intent was to somehow enhance intelligence
capabilities.
Your second and third questions deal with my suggestion
that the House Intelligence Committee consider amending the
"Privacy Protection Act of 1950" (P.L. 96-44C) so as to include
unauthorized disclosures of intelligence identities among the
enumerated offenses for which court authorized searches and
seizures may be conducted. As you know, this enumeration was
not intended to give the listed statutes any special standing.
It was designed to ensure that their enforcement was not
obstructed by the Privacy Protection Act's prohibition of court
authorized searches to enforce relatively minor receipt,
possession, or communication offenses. The sole effect of this
enumeration is to preserve with respect to the listed national
security-related offenses an authority applicable to virtually
all other offenses, i.e., use of a search warrant to obtain
documentary evidence in the possession of a suspect.
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Addition of the Intelligence Identities Protection Act
to the offenses now listed in the Privacy Protection Act would
not conflict with the Judiciary Committee's intent with respect
to 18 U.S.C. 793. I do not view that intent as inconsistent
with the Administration's position that the pattern of
activities and knowledge elements of the Identities legislation,
combined with the serious consequences of unauthorized dis-
closures, make it appropriate to include the offense among those
for which a search warrant may be obtained pursuant to the
Privacy Protection Act whether the Identities legislation is
ultimately enacted with a "reason to believe" or an "intent to
impair or impede" standard.
I
I would emphasize that this is not an issue. which should
be allowed to delay consideration of the identities Bill, and I
would support separate consideration of the extent to which the
Identities statute ought to be added to the Privacy Protection
Act. My letter to Chairman Boland of the House Intelligence
Committee merely suggested that the Committee might wish to
consider the issue, and I did not raise the matter in my Senate
testimony because I do not consider it to be integral to the
Identities Bill. I thank you for your continuing interest in
this matter and look forward to working with you to ensure
speedy enactment of the Identities legislation.
Senator DENTON. Our next witness is Richard K. Willard, Coun-
sel for Intelligence Policy, Department of Justice.
Good morning, Mr. Willard, and welcome.
STATEMENT OF RICHARD K. WILLARD, ESQ., COUNSEL FOR
INTELLIGENCE POLICY, U.S. DEPARTMENT OF JUSTICE
Mr. WILLARD. Thank you, Mr. Chairman.
It is a pleasure for me to appear before you on behalf of the
Attorney General today to express the views of the Department of
Justice regarding S. 391. With your permission, Mr. Chairman, I
would like to make a few brief remarks at the outset, and submit
my prepared statement for the record without reading it in its
entirety at this time.
Senator DENTON. Surely; permission granted, sir.
Mr. WILLARD. I would like to emphasize at the outset that the
Department of Justice strongly supports the enactment of this
legislation to protect the identities of the clandestine intelligence
officers, agents, and sources who serve this country.
Senator Chafee and Director Casey have spoken eloquently today
of the need for this legislation, and we fully agree with their views
in this regard. It has been the position of the Department that the
knowing disclosure of the classified identity of a clandestine officer,
agent, or source of an intelligence agency could constitute a viola-
tion of certain sections of the existing espionage laws. Neverthe-
less, we agree that additional and more specific legislation would
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facilitate prosecution of those who seeks to make these disclosures,
and thus neutralize the intelligence agents who serve our country.
I would like to turn specifically to S. 391 which is now under
consideration after having been introduced in this Congress by
Senator Chafee on behalf of himself and a number of other distin-
guished Senators.
This bill would prohibit the disclosure of information identifying
a "covert agent." This is a defined term covering a range of Gov-
ernment employees, agents, informants and sources. Varying pen-
alties would be applied to three different categories of persons who
may be involved in the unauthorized disclosure of such informa-
tion.
SECTIONS 601 (A) AND (B)
The first two categories provided in this bill have not been
controversial. These provisions add substantial protection against
disclosure by current and former Government employees and con-
tractors who have had authorized access to classified information
and the identities of covert agents. The fact that these persons
have had access to such classified information lends an aura of
credibility to disclosures by them. In addition, this access may
provide them with a degree of expertise regarding how covert
identities are concealed and the means for piercing such conceal-
ment measures.
We have one suggestion with regard to these provisions, which
are identified as sections 601(a) and 601(b) in S. 391. Neither sec-
tion now includes a provision that would criminalize attempts to
commit the proscribed actions. An "attempts" provision would spe-
cifically authorize the Government to initiate the prosecution of
any person who meets the standards of these two sections, and who
has taken a substantial step toward, but has not completed, the
disclosure of the identities of covert agents.
Such conduct should be subject to punishment without forcing
the Government to delay until the identities have actually been
disclosed to the public and the harm already done. We believe the
penalty for a violation of an "attempts" provision should be some-
what lower than for an actual disclosure.
The third and final category of persons covered by the bill is
described in section 601(c). This section has attracted the most
attention and includes persons who have not had authorized access
to classified information that identifies or results in learning the
identities of covert agents.
Section 601(c) would penalize a person who knowingly discloses
the identity of a covert agent in the course of a:
Pattern of activities intended to identify and expose covert agents and with
reason to believe that such activities would impair or impede the foreign intelli-
gence activities of the United States.
This provision would provide a criminal penalty for any person,
including those who have never had authorized access to classified
material, who discloses information identifying a covert agent with
the requisite state of mind, even if the information is derived
entirely from public sources.
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It has been argued that the principles of the first amendment are
done violence when the Government seeks to punish actions based
on information that is made available to the public. We do not
believe this argument has any merit. As Senator Chafee pointed
out, the first amendment is not absolute. We are totally confident
that a carefully drafted bill such as S. 391 is constitutional.
Congressional hearings over the past 2 years have well docu-
mented the serious harm to the national defense caused by the
actions this statute is intended to prevent. When compared with
the extremely limited burden on speech, we believe that this seri-
ous harm justifies the proposed legislation.
We also believe that the objective standard of "intent" in section
601(c) would pass constitutional muster under a first amendment
or due process challenge. We believe that this standard is prefer-
able to the specific "intent" standard contained in the current
House version of this legislation, section 601(c) of H.R. 4.
PROTECTION OF COVERT FBI AGENTS
In the discussion of H.R. 4, various Congressmen raised the
question of whether it is appropriate to include penalties for the
disclosure of the identities of covert FBI agents, sources and infor-
mants from this legislation. Two arguments have been made for
excluding FBI covert agents.
One is that FBI personnel operate domestically rather than
abroad, and hence are better protected from the risk of physical
harm. The second argument is that there is no empirical record of
exposures of FBI covert intelligence agents. We disagree, however,
with both of these contentions.
It is inaccurate to state that FBI covert agents are insulated
from a risk of physical harm, or that they operate exclusively in
the United States. We note, for example, that people have attempt-
ed to use the Freedom of Information Act to determine the identi-
ties of FBI informants in a law-enforcement context.
In addition, there are many instances where FBI undercover
agents must travel abroad in the course of a counterintelligence or
counterterrorism investigation.
+ Moreover, FBI agents operating domestically may be operating
undercover in a violence-prone terrorist group. In this situation,
their safety cannot be assured if their FBI affiliation is revealed.
More significantly, however, the argument against including FBI
agents in this legislation appears to underestimate the harmful
effects such a disclosure would have on the Government's ability to
maintain effective counterintelligence and counterterrorism oper-
ations. These operations are critical to our ability to monitor and
prevent damaging penetrations by hostile intelligence services. If
compromised by public disclosure of our covert agents' identities,
serious damage to our national security could result.
Mr. Chairman, it is our belief that this bill will strike the proper
balance among the various competing interests we must consider.
Legislation of this nature is critical to the morale and confidence of
our intelligence officers and their sources. The Justice Department
strongly recommends that it be reported out of this subcommittee
with a favorable recommendation for enactment by this Congress.
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I would be happy to address any questions you may have at this
time.
Senator DENTON. Thank you very much, Mr. Willard.
Does the DOJ feel that the unauthorized disclosures that S. 391
addresses can be effectively prosecuted under its provisions?
Mr. WILLARD. Yes, sir, Mr. Chairman, we do. These provisions
have been developed in consultation with the lawyers who pros-
ecute crimes of this nature, and they believe that this statute is
both constitutional and enforceable.
Senator DENTON. Do you foresee any problems with the various
burdens of proof which it must meet in prosecuting violations
under S. 391?
Mr. WILLARD. Well, Mr. Chairman, we have to say that section
601(c) imposes a very heavy burden on the Government. There are
six separate elements to this offense, and it will not be easy to
prove a violation. However, we believe that prosecution will be
possible for the serious disclosures that concerns this committee.
Senator DENTON. What would you see as the impact on address-
ing the problem of unauthorized disclosures if section 601(c) were
removed from the bill?
Mr. WILLARD. We think this would seriously limit effectiveness of
the bill. The unauthorized disclosures that have concerned this
committee and other committees in the Congress have frequently
been made by people who cannot be shown to have had direct
access to classified information. Therefore, we believe it is essential
to have a provision like section 601(c) to eliminate the harm that
concerns the committee.
Senator DENTON. The Department of Justice has stated in the
past that it feels wrongful disclosure of classified information con-
cerning an agent's identity constitutes a violation of the existing
espionage statutes, 18 U.S.C. 793 (d) and (e), and 18 U.S.C. 794.
How many prosecutions have there been under these statutes for
offenses addressed by S. 391? That is, the revealing of identities of
intelligence officers and sources?
Mr. WILLARD. To my knowledge, Mr. Chairman, there have been
none.
Senator DENTON. Do the present espionage statutes cover activity
proscribed by section 601(c) of S. 391 such as publication or republi-
cation?
Mr. WILLARD. Section 601(c) is a different, more specific statute.
We think it will be more useful in prosecuting these types of
activities than the existing espionage law.
Senator DENTON. I would like to take time to recognize the
presence of my distinguished colleague from North Carolina who is
the chairman of the Subcommittee on Separation of Powers on this
committee. I serve with him on that subcommittee, and unfortu-
nately we are often having hearings at the same time.
For the record, I would like to submit my feeling of great admi-
ration for him as a Senator, and for his conscientious efforts in his
current hearings.
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Welcome, Senator East.
Senator EAST. Thank you, sir.
Senator DENTON. To date, FBI secret identities of agents who
travel abroad have not been revealed. Would it have an adverse
effect if identities were revealed, as has happened to CIA agents?
Mr. WILLARD. Yes, Mr. Chairman. We do not think that the FBI's
good record of protecting its agents should be held against it and
used to deny FBI agents the kind of protection that would be very
helpful to them in the future.
Senator DENTON. Have the problems encountered by the CIA
impacted on the FBI's ability to conduct foreign intelligence, for-
eign counterintelligence, and foreign counterterrorism activities?
And if so, how?
Mr. WILLARD. Mr. Chairman, I think that the climate created by
the activities that this committee has addressed has an effect on
the activities of all the intelligence services in a general way. I am
not prepared at this point in open session to discuss specific ways
they have impacted on FBI counterintelligence or counterterrorism
operations, but I think that the Bureau would be happy to provide
that information in classified form to this committee.
Senator DENTON. We would look forward to receiving that, sir.
I would like to welcome Senator Biden who has survived some
train difficulties. He informs us that, regrettably, one person was
killed in the train ahead of his.
Welcome, Senator Biden, and again I want to acknowledge your
tremendous experience in this field, and your most effective efforts
in the past.
Senator BIDEN. Thank you, Mr. Chairman.
Mr. Chairman, for the record, there was no one in the train that
I was riding who was killed, but a northbound Metroliner going
through the Baltimore tunnel struck a flagman who was supposed
to be the one warning of the train coming that killed him, blocking
the tunnel for 1 hour. So I apologize to the witnesses who have
already gone, and to those of you who are here, for being late. It
does not evidence a lack of interest in this topic on my part.
Thank you, Mr. Chairman.
Senator DENTON. Thank you, Senator Biden.
I would pause here and ask Senator East, first, if he cares to
make any statement due to perhaps the transiency of appearance
here, because of overriding requirements somewhere else?
Senator EAST. Senator, I thank you for the opportunity. I am
pleased to be here. I am sorry that because of other conflicts I have
not been able to be with you from the beginning, but as a great
admirer of your service in Vietnam and of the great contribution
you are now making as a U.S. Senator, it is a pleasure to be
associated with you on this subcommittee.
I am a cosponsor of this bill, so my sentiments and commitments
are well known there, and I will not then delay the hearings with
any further comment, except to say publicly, which I would like to
say, my great admiration for you as a person and as one of Ameri-
ca's truly national heroes and the great honor I consider it as a
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freshman Senator to be a part of your class and to serve under
your leadership here on this subcommittee.
Thank you, Mr. Chairman.
Senator DENTON. Thank you, Senator East.
I would invite Senator Biden to make any remarks he might
choose to at this point.
OPENING STATEMENT OF SENATOR JOSEPH R. BIDEN, JR.
Senator BIDEN. Mr. Chairman, I will be brief. I have an opening
statement which I intended to deliver prior to any witnesses being
heard, but I think it is worth my making it at this point for the
remaining witnesses to have a framework within which to under-
stand my questions that will follow their testimony.
Mr. Chairman, through today's hearings we are involved in a
thorough and open analysis of the extremely important piece of
legislation. This legislation to protect Americans, covert agents
abroad, had its origin in terrible tragedy, the brutal murder of Mr.
Richard Welch in front of his home in Greece within a month after
he was publicly identified as the CIA Station Chief in Athens, and
the attempt on the lives of American Embassy officials and their
families in Jamaica following publication of their names, addresses,
license plate numbers, and phone numbers along with the allega-
tions that they were CIA officials.
A civilized society, Mr. Chairman, cannot ignore efforts to cripple
its intelligence agencies by hampering its foreign covert activities.
The systematic identification of persons as CIA officials has
caused further harm because it interferes with the relationship
between the United States and foreign sources of intelligence. It is
no surprise that sources in other countries are somewhat reluctant
to assist the United States when they fear for their safety through
exposure. In the last Congress, the Intelligence Committee of which
I have been a member since its inception, and the Judiciary Com-
mittee, laid the groundwork for legislation to protect covert agents.
The bill before this subcommittee, S. 391, is the product of that
effort of the Intelligence Committee, and it provides a valuable
vehicle by which this subcommittee can begin its analysis of the
Intelligence Identities Protection Act.
Although I voted against the Intelligence Committee's bill and I
filed dissenting views, I have supported legislation in this area in
the past. As I noted in the committee report on a related issue, the
gray-mail legislation, limited further protection of intelligence
sources especially in the identity of foreign agents appears to be
very necessary. We reached that conclusion the better part of 2
years ago as a consequence of our efforts in the gray-mail area.
The Intelligence Identities Protection Act before this subcommit-
tee, has three parts. The first two parts create a Federal offense
with stiff penalties for persons who have authorized access to clas-
sified information, and use that information to disclose the identity
of covert agents. I have absolutely no problem with those first two
sections, and I do not think anyone really does have much of a
problem with those.
The third part of the bill also creates a new offense. According to
our Intelligence Committee report, and I quote:
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It encompasses only individuals whose intentional will evidenced by a course of
conduct involves, first, a pattern of activities; second, those activities are intended to
identify and expose covert agents; and third, with reason to believe that such course
of conduct would impair or impede U.S. foreign intelligence activities.
The purpose of this section, again according to the Intelligence
Committee report, is to:
Apply criminal sanctions only in very limited circumstances to deter those who
make it their business to ferret out and publish identities of agents.
The report further states:
It does not affect the first amendment rights of those who disclose the identity of
agents as an integral part of another enterprise such as news media reporting of
intelligence failures or abuses, academic studies of U.S. Government policies and
programs; or private organizations in the enforcement of internal rules.
I question whether the bill accomplishes these goals although we
all agree it should. The language of that provision, section 601(c), is
at best ambiguous and at worst, as a number of constitutional
scholars have argued, unconstitutional.
The ambiguity in the language has led more than one legal
scholar to conclude that section 601(c), although having a very
laudable goal, would prohibit the use of unclassified material by
private citizens who disclose willful misconduct by intelligence
agencies themselves. This committee should, and I am sure will,
place a great deal of emphasis on this concern since we have
already seen the value of thorough investigative authors such as
Claire Sterling, whom you have had before this subcommittee, on
questions of intelligence agencies.
This subcommittee must also give weight to the concern that
section 601(c) is unconstitutional. In fact, Prof. Philip B. Kurland,
Professor of Law at the University of Chicago, one of the Nation's
leading constitutional scholars, reviewed section 601(c) and stated
matter of factly that he "had little doubt that it is unconstitution-
al."
Now, Mr. Chairman, I look forward to reviewing the testimony
already given by the witnesses thus far, and the witnesses to come,
on the concerns I have raised and hope that they will assist us in
this subcommittee in finding an effective but more acceptable
means to protect the names of agents, which we all wish to do.
Finally, I would like to point out that this bill is no substitute for
an effective cover for foreign agents. We have had in the Intelli-
gence Committee numerous hearings on the inability and the lack
of vigilance in my opinion on the part of the Agency themselves to
protect the identities of their own people. We even had to go so far
in S. 391 as to instruct the intelligence agencies to "take affirma-
tive measures to conceal the identities of agents."
So I think that we have a twofold purpose here. I think your
effort in expediting this legislation is not only noteworthy, it is
very important, and you have my full support in that effort.
Let me conclude by reading the text of what I was going to ask
Mr. Casey, and I will now read it so you all know what I am going
to pursue with regard to the constitutionality of S. 391. Professor
Kurland said:
I can frame my opinion on the constitutionality of this section very precisely. I
have little doubt that it is unconstitutional. I cannot see how a law that inhibits the
publication without malicious intent of information that is in the public domain and
previously published can be valid. Although I recognize an inconsistency in Su-
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preme Court decisions, I should be very much surprised if that Court, not to speak
of the lower Federal courts, would legitimize what is for me "the clearest violation
of the first amendment attempted by the Congress in this era."
With all good wishes, Philip Kurland.
I wish he had a strong opinion on this subject. [Laughter.]
Senator BIDEN. But the point is, I plan to work with you, Mr.
Chairman, to see to it that we get a bill. We must stop the Agee's.
We must find a way to do it. It is outrageous and reprehensible
what they do. But I do not want to stop publications of books like
"The Spike." I do not want to stop publications of books like "The
Terrorist Network." I do not want to stop publications of books
that we all think are important. And whether or not they would
fall within the purview of this is a real question.
I am not being facetious. I am being serious about that. So thank
you very much. I apologize for the delay and the ability to make an
opening statement midway into the questioning.
Senator DENTON. Well, thank you, Senator Biden. I too would not
be interested in stopping publications of books like "The Spike" or
"The Terrorist Network." "The Spike" was a novel with fictional
characters, and I do not want to so abruptly take a difference with
you, because I want to express first my admiration for you in this
field, especially in your invaluable leadership in the Drug Enforce-
ment Administration area in which we share activity. But I do
believe that "The Spike," being a novel, and "The Terrorist Net-
work," which contained information on identities derived from for-
eign services, do not really constitute arguments against the pas-
sage of this bill-at least that is my persuasion.
Senator BIDEN. They may not, Mr. Chairman. I am anxious to
see.
Senator DENTON. Well, then, why do we not just ask him out-
right if you think this bill is going to be unconstitutional?
Mr. WILLARD. Mr. Chairman, it is our position that the bill is
constitutional, and we do not have any doubt that S. 391 would be
sustained in a proper case as presently drafted.
Senator DENTON. That of course was in the letter which was sent
from the Department of Justice to the chairman of the Committee
on the Judiciary. So we did have that information ahead of time,
but I am glad to get it on the record during this hearing.
I have only one more question and then I will turn the question-
ing over to Senator East, and then Senator Biden.
Mr. Willard, do you have any suggested amendments to S. 391 to
render it more effective in the prosecution of unauthorized disclo-
sures of the identities of agents and sources?
Mr. WILLARD. Yes, Mr. Chairman. I mentioned briefly in my
prepared statement the addition of an "attempts" provision for
sections 601 (a) and (b). Attempt provisions are quite common in
the criminal law and we believe it would be appropriate to include
an "attempts" provision in these noncontroversial sections. We
have submitted suggested language for an "attempt" provision to
the House Intelligence Committee in response to its request, and
we would be happy to submit that language to this committee, as
well.
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We also suggested the inclusion in the legislative history of
section 601(c) of a definition of "foreign intelligence activities."
Such a definition would eliminate any doubt that this section is
intended to protect the full range of intelligence activities of the
United States, not merely the collection of foreign intelligence.
Senator DENTON. So your amendments would not include any
increase in severity of penalties, for example?
Mr. WILLARD. No, Mr. Chairman, we have not considered alter-
ing the severity of the penalties provided in S. 391. We agree with
Director Casey that the important thing is swift and certain pun-
ishment for criminal offenses. The actual length of the sentence
and the amount of the fine is not as important to us.
Senator DENTON. Senator East?
OPENING STATEMENT OF SENATOR JOHN P. EAST
Senator EAST. Thank you, Mr. Chairman.
I would just like to take a moment to make an observation on
the distinguished Senator Biden's comment on this matter of con-
stitutionality, so I really am not directing my question at Mr.
Willard. That is, I do agree with his-personally, my own agree-
ment would be that the act as it stands is constitutional.
The trouble I have is that if we constantly assume that this
expert or that, that their voice is determinative of the matter, then
in effect you would never really draft any legislation, it occurs to
me.
Now Mr. Kurland is a distinguished constitutional scholar, but
of course there are many others. As we all know, in the study of
constitutional law, reasonable-minded, fair-minded, well-inten-
tioned scholars can differ over constitutionality. In terms of Mr.
Kurland, I would suggest that his opinion could be a factor that
one might wish to weigh in determining constitutionality, but it
certainly ought not to be determinative and decisive.
The particular section here in question that Senator Isiden was
directing his comments to, the section (c), I would contend-not
suggesting I am in the same league as Mr. Kurland, but as a
lawyer and as a holder of a Ph. D. in political science, I will just
throw in my two cents' worth. I think it is constitutional.
So one can run through that gamut. I think it is all very valua-
ble to get comments on constitutionality, but ultimately of course
the tribunal that would determine that would be the U.S. Supreme
Court. And as one who is greatly covetous of protecting the idea of
separation of power, I would just as soon have the Supreme Court
ultimately make that determination, as opposed to Professor Kur-
land at the Law School at the University of Chicago.
One other comment if I might, Mr. Chairman. I am very solici-
tous of the very perceptive remarks Senator Biden makes, and I
am not suggesting that one might not come up with some alterna-
tive to this; but the trouble I have, there seems to be a general
consensus among all of us that we need to do something. I am just
concerned that we do something effective; that we not say: Yes,
there is a genuine need. And then in describing it in statutory
language, we simply define any remedy out of existence; that we
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make it so difficult to apply or to enforce, that it not have any
teeth in it so it would give us a false sense of security.
We thought we were protecting our intelligence agents, and in
fact we were not, because of the nature of the language. To me,
this language in (c) is straightforward. It is clear. It involves intent.
It has all of the characteristics that we associate with the criminal
law: Intent, action, conduct designed to accomplish ends contrary
to the well-being and to the best interests of the United States.
Since we all agree that there is a great need for it, I wholeheart-
edly commend this language to all members of the subcommittee,
and ultimately to the Judiciary Committee of the U.S. Senate.
There is a demonstrated need to protect our agents. As we see
the growth of the pattern of terrorism, as we see the growth of the
pattern of subversion in the world as an instrument to further
national and ideological aims, there is an enormous responsibility
on the part of this Congress, this Senate, this Judiciary Committee,
and this subcommittee to try to come up with a bill that is going to
protect those people that we put out on the front line and ask to
try to do the job of protecting us, and anticipating threats to our
internal security.
Was it not Justice Jackson who said one time that the Bill of
Rights is not a suicide pact? Indicating that we of course, want to
protect first amendment rights. It is like any good thing in the
area of political theory: You have many things to balance.
We not only want to protect the right of freedom of speech, but
also society certainly has the right to protect itself against genuine
threats to its internal security. I would contend that the greatest
threat to freedom of speech today in America comes from the use
of internal subversion and the threat to civil liberties through the
use of terror. And certainly fairminded and reasonable-minded
people ought to be able to find a way of protecting themselves from
that kind of thing.
I look upon this as an integral part of the effort to do that. I
would like to feel, when we are finished with this hearing, if you
put it in balance and weigh all the things we are trying to do-
protect first amendment rights, protect security, and so on and so
forth-that we would come down on the side of. This is a good bill;
this is a strong bill; it is a solid bill; it is well thought out and it
clearly defines the conduct to be forbidden. In short, it is not vague
and hence unconstitutional.
So I would support Mr. Willard in his testimony, and do feel very
strongly we are on the right track, Mr. Chairman. Thank you.
Senator DENTON. Thank you, Senator East. That is particularly
valuable coming from a political scientist who has expressed him-
self so well.
Senator Biden?
Senator BIDEN. Thank you, Mr. Chairman.
I concur with the elements that Senator East has laid out, Mr.
Willard, and I would like to question you about them a little bit.
That is, I concur that we have to do something. The issue is: Can
we do something effective?
My concern about the constitutionality is that I can think of
nothing worse than passing a bill that may be unconstitutional on
its face and having the court rule it is unconstitutional. Having
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been given a false sense of security the American people and the
intelligence community, we can further undermine the credibility
of the entire judicial and political system by demonstrating that we
not know how to draft a bill to protect them.
So "effectiveness" is the issue; not whether or not we need a bill.
I will get right to the point. The Professor pointed out that this has
all the elements. The first element, that he "knowingly set out" is
the most essential element in a criminal offense, "intent." He
specifically stated, "intent."
My question is. Our bill differs from the House bill. The House
bill uses the words "with intent." Our bill says "with reason to
believe." I would like to pursue that with you. I would move that
we amend it to say "with intent" like the House bill, exactly like
the Senator says we should. Now he did not say that we should
amend it, but that "intent" is an important element.
I think we should be clear, like we try to do in all legislation. We
want to be crisp and clear so there is no misunderstanding. Any
reasonable person has little difficulty understanding the phrase
"with intent." Reasonable women and men could disagree about
the phrase "with reason to believe."
So would you support the stronger language of "with intent" as
opposed to the language "with reason to believe"?
Mr. WILLARD. Senator, as I testified before the House Intelligence
Committee, the Department of Justice would support either bill.
We have a preference for the wording of S. 391 as it stands now.
We think either bill would be a great improvement over the pres-
ent situation, and both bills would be held constitutional and would
be enforceable.
Senator BIDEN. You would not object to my moving to amend this
bill to conform with the house bill to use the phrase "with intent,"
then? Is that correct?
Mr. WILLARD. We have reservations about that lauguage and
thus prefer the Senate version as it now stands. We think it would
be more easily enforceable.
Senator BIDEN. Why?
Mr. WILLARD. We think there could be more difficulty in apply-
ing a subjective-intent standard a defendant who is prosecuted
under this section could say, "Well, my intent really was not to
impair and impede intelligence activities; my intent was to pro-
mote public dialog on these issues," or "to expose wrongdoing."
And, "Although I knew good and well that it was going to impair
and impede intelligence activities, in my heart of hearts I really
intended something else to happen."
Senator BIDEN. Well, is that not the same kind of standard we
have on almost every other criminal offense? There are some that
we do not, but by and large people come before juries and they say.
I knew I was shooting Cock Robin, but I did it in self-defense. In
my heart, I had no intention to kill him.
Prosecutors deal with that every day. For example, it seems to
me that the "with reason to believe" standard really imposes an
additional burden on the Government. In the view of all the public-
ity surrounding this issue that it has had already, will have, and
should have, will not everyone possess a "reason to believe" that
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foreign intelligence activities will be impeded if anything is dis-
closed?
I mean, is that not going to be an argument that is even fuzzier
to make? Will you not be able to stand up and say-I can picture,
having been a trial lawyer handling criminal cases, someone stand-
ing before a jury saying: Ladies and gentlemen of the jury, if you
have read-and take out the last 2 years' newspapers-everyone in
America knows our intelligence agency is under siege. Everyone
knows that. Any reasonable person would have "reason to believe."
They would have to be stupid. "Did you not read the newspaper the
last 12 years?"
I mean, that becomes a fuzzier standard. Why do we not get
tough? Why do we not have the tough, clear, precise standard of
intent?
Mr. WILLARD. Senator, I would first point out that there is an
"intent" standard in the Senate bill as it is presently drafted. What
we are talking about is not "should there be an intent standard?"
But, should there be two intent standards?
Senator DENTON. Exactly right.
Mr. WILLARD. That is what the House bill contains.
Senator BIDEN. Because there are two separate things we are
going after; two separate items. As I tried to explain, this bill
essentially has two parts. The first part covers where somebody
signs up and has access to classified information. In return for-
every American can understand this-in return for access to this
information, I get a "classified" clearance; I make a promise that if
I ever reveal any of this, you all can prosecute me.
That is very different than somebody who is no part of an
agency, has no clearance, has no access, goes out and compiles from
other sources, rightly or wrongly, information. The reason why
there are two intent standards is to make it clear that we are
dealing with two different situations, fundamentally different. Fun-
damentally different, whether a reporter writes an article that
exposes an agent, and whether a CIA agent goes off and sells
information to a foreign government and/or just flatout publishes
it, like Mr. Agee.
I do not think anybody has any doubt about Mr. Agee. We should
lock him away, in my opinion. The question is: Are we going to
have, as they say, "a chilling effect"? Why not make intent clear?
We make intent clear elsewhere.
So even though there are two separate parts of the bill, we are
not setting up two "intent" standards. There "ain't no such thing."
You cannot have double "intent." You either intend; or you do not
intend.
So for example, would not republication in the United States of
the names of our covert agents which had been previously pub-
lished overseas constitute a violation of this bill? Let us say there
is an article in Le Monde; a French newspaper person publishes
the names of our agents. Somehow he gets hold of them. Obviously
we cannot punish the editor in chief of Le Monde; but, the New
York Times reads Le Monde and reprints the article. Are they
guilty of a criminal offense under this bill?
Mr. WILLARD. Well, Senator Biden, I think our hypothetical
illustrates the advantages of a "reason to believe' standard. Under
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that standard, if the identities have already been widely published,
no reasonable person would believe that an additional publication
would impair or impede intelligence activities.
Senator BIDEN. Oh, do you want to bet? I will bet we have 50
reasonable people here in the Congress that would believe it right
off the bat. [Laughter.]
No; really and truly, as a famous American once said: In your
heart, you know I am right about that. [Laughter.]
Seriously, I mean this sincerely. You know darn well that if the
New York Times republished an article that appeared in a French
newspaper, or a Cuban newspaper, or a Venezuelan newspaper,
that reveal the names of agents, there would be people on the floor
of the U.S. Senate and the House of Representatives who would be
saying that that was reprehensible action on the part of the New
York Times and we should do something about that.
Mr. WILLARD. Under certain circumstances, it could be reprehen-
sible.
Senator BIDEN. Right. If they had the intent. Right? If they had
the intent. How do you prove they had reason to know, in that
case?
Mr. WILLARD. I respectfully disagree, Senator. I think that the
test should be the relatively objective one of whether the Venezu-
elan publication had been so widely circulated that it would be
reasonable to believe that an additional publication would or would
not be harmful.
Senator BIDEN. For example, let us assume you could prove it
had only been published in Venezuela. Would there be reason to
believe that republication in the United States would be a violation
of this law?
Mr. WILLARD. I think it might depend on where the agent was
stationed, whether he was stationed in Venezuela or in China.
Senator BIDEN. Let us say he was stationed in China. Let us say
he was stationed in Canada-not that we have any there. I mean,
pick someplace close, other than Venezuela. Seriously.
Mr. WILLARD. If the original publication had only limited circula-
tion in a foreign country in a foreign language, then I think it
would be reasonable to believe that the republication by a major
publication in the United States in English would be harmful to
American intelligence activities. But it would not turn on whether
the New York Times was critical of the Government, or what their
hidden motivations were.
Senator BIDEN. That is right.
Mr. WILLARD. It would turn on the objective determination of
whether a reasonable person would believe that intelligence activi-
ties would be impaired or impeded by such action.
Senator BIDEN. So let us carry that a little further. Picture the
situation in the editorial room of the New York Times. They have
a Venezuelan paper in front of them. What do they do, then? Is it
their affirmative obligation to send an investigative reporter to
Venezuela to determine how widely the paper is circulated, how
many people have read it, whether or not it is available in other
countries? I am not being facetious. I am being serious. Would they
then have that affirmative obligation?
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Mr. WILLARD. I think that anyone who would otherwise meet the
elements of the statute and who it considering whether to publish
the identity of a covert agent will have to consider whether or not
that publication would be harmful or will impair or impede the
foreign intelligence activities of the United States.
Senator BIDEN. How do they make that judgment? In other
words, see, you are putting on them the judgment of whether or
not-how do they have "reason to believe"? I mean, you just said
that one of the things it would depend on is whether or not the
agent is in Venezuela, or in China.
I mean, how does the newspaper make that decision? Seriously.
What sort of manual can we give them to say: You do not publish
this one; but you can publish other ones, or reprint other ones?
Mr. WILLARD. We think that using an objective standard is less
insidious in some ways than a standard that would turn on specific
intent which might draw into question evidence such as whether
the defendants were pro-CIA or anti-CIA, for example. A specific
intent standard might require prying into the political views of the
defendant during the trial. This is one reason why the Justice
Department has consistently expressed a preference for the Senate
version of this standard rather than the House version.
I would like to, if I could, go back and correct something that I
think I may have misstated.
Senator BIDEN. Sure.
Mr. WILLARD. When I mentioned two "intent standards," there
are two specific intent standards contained in the House counter-
part of section 601(c).
As the Senate bill now reads, it provides: "Whoever in the course
of a pattern of activities intended to identify and expose covert
agents"; so there is one specific intent standard that is still includ-
ed in the Senate bill.
Senator DENTON. Which has to be proved.
Mr. WILLARD. The question, then, is whether there should be a
second specific intent standard regarding the effect of the activities
on U.S. foreign intelligence activities.
What we are talking about is whether we should have one spe-
cific intent standard or two specific intent standards.
Senator BIDEN. Well, let me ask it another way, then. Why would
it not be more consistent to eliminate the first intent standard?
Why would we not say, then, to be consistent, for all the reasons
you just said, "have reason to believe"?
Senator DENTON. Because, if the Senator would yield, I am not a
lawyer, but I am not bad at logic. It says--
Senator BIDEN. Well, being a lawyer does not help with that.
Senator DENTON. It is more libertarian to have it this way, "in
the course of a pattern of activities intended to identify and expose
covert agents." You must prove the intent there, and you must
prove the nature of the course of the pattern of activities. So it is
more liberal to have it in that way.
Senator BIDEN. Well, I am for it being liberal throughout, but let
me move on to another section, if I may. I have more questions.
I appreciate your explanation, sir, but let me be sure I under-
stand. You would not oppose-you would support either version.
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You prefer the Senate version, but you would support either ver-
sion? Is that correct?
Mr. WILLARD. That is correct, Senator.
Senator BIDEN. With regard to-bear with me just a second here,
Mr. Chairman-the issue of, as I understand it, the Sterling book,
"The Terrorist Network." If she published information about hos-
tile terrorist groups that she gained from a U.S. official, not to
disclose the name of the official, but if she found through her
contacts with CIA agents the fact that there was a terrorist group
operating within this country, and then went on from there to
substantiate that and wrote a book exposing the terrorist network,
not exposing the agent, and a reasonable person would know that
the hostile group could figure out where she got that information,
she would have reason to believe that by publishing the informa-
tion about the terrorist network that she would be exposing the
source without naming the source, would she be guilty of a viola-
tion under this section?
Senator DENTON. Would you believe that she was engaged in the
course of a pattern of activities intended to identify and expose
covert agents? I would not.
Senator BIDEN. With all due respect, Mr. Chairman, I know your
view. I am curious at what the Justice Department's view is. I
think I know your view.
Mr. WILLARD. I would have to agree with Senator Denton that
this statute includes multiple elements. Thus, the fact that some-
one might be engaged in benign activity that satisfies one or two of
these elements does not mean that a prosecution would be possible.
I think that is why the drafters of this legislation put in so many
elements. It makes it fairly difficult to put together a case.
Senator BIDEN. Now let us assume-the next step. Let us assume
that someone were to publish an article or write a book that had
the dual intent of exposing a terrorist network and an agent in this
country who that person believed was part of the terrorist network,
a "mole." The pattern of activity was designed to go after people
who were double agents, to uncover people in our intelligence
community who were double agents. In doing so, she wrote an
4 article or a book identifying someone as an American agent for the
express purpose of making the case that they were a double agent.
Would she be guilty of violating this law?
Mr. WILLARD. Well, it is difficult of course to deal with hypotheti-
cals. The one you pose immediately raises the question of whether
one would have reason to believe that activity would impair or
impede the foreign intelligence activities.
Senator BIDEN. Well, I guess it would, though, would it not? Is
there not reason to believe that if you were able to name someone
who is deep cover, if you had access to naming that, would that not
have a chilling effect? Is that not what happens now? Does it not
have a chilling effect, to say the least, upon the British intelligence
or the French intelligence, even if it was for a purpose that was a
laudable one? Would they not ask-I can guarantee you, being on
the Intelligence Committee, they would ask: I wonder how she got
the name in the first place?
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Mr. WILLARD. I would also like to point out that under section
601(c), someone who has valuable information of that sort can
communicate it to the House and Senate Intelligence Committees.
Senator BIDEN. I understand that, and I think they should. I am
just asking the question. I am not saying that they should not be
prosecuted, I am trying to home in on this so we do not pass a bad
law.
If she did it, if someone-forget Ms. Sterling; let us not talk
about her-if a newspaper person for the express purpose of expos-
ing corruption and/or a double agent within our intelligence net-
work published the name of that agent or other agents working
with that agent for the purpose of pointing out that they were a
mole, would they be guilty under this law?
Senator DENTON. Although the Senate may know my views, as a
Senator I am qualified to offer them.
Senator BIDEN. I know that, Senator.
Senator DENTON. I do not know how it could be fitted into a
pattern of activities intended to identify and expose covert agents if
the overall impact of her thrust or his thrust were to help rather
than impede or impair foreign intelligence activities in the United
States. In that case, I think it would, and since there would be no
pattern of activity intended to identify and expose covert agents,
per se, I would say that neither of those specifications are met.
Senator BIDEN. Well, I am delighted to hear that, Mr. Chairman.
Now maybe I could rephrase it again for our witness. Maybe what
I should do is direct each question to you, first, and then to the
witness. [Laughter.]
Senator DENTON. No, but we are getting short on time. Normally
we have a 10-minute limit. We are trying to get through at 12.30.
Senator BIDEN. Fine; I will yield my time back now and wait for
my next round of 10 minutes. I yield to you, Mr. Chairman, be-
cause I have exceeded 10 minutes, and I will wait until your 10
minutes is up, and Senator East's, and then I will ask mine again.
Senator DENTON. Well, the point is that we do have witnesses
from the American Civil Liberties Union, and one from the Associ-
ation of Former Intelligence Officers, at which time if we are not
satisfied, we will recess rather than extend this hearing beyond the
time at which our participation in the voting and so forth and
other activities would preclude questions that you or others would
like to ask.
Senator BIDEN. But I assume we would be able to have another
day of hearing, Mr. Chairman, like we always did in the past when
we ran this committee and anyone sought, not for the purpose of
impeding, to seek information.
I wonder, it may help if I just ask you the questions, sir, and you
answer the question, and then we would not be taking out of my
time as much. Let me ask it again.
I imagine a newspaper person sets out in a pattern of activity to
expose persons that they believe to be double agents, and they
spend the next 3 years of their life doing nothing but devoting
themselves to finding agents they do not believe are good ones,
finding agents they believe are on the payroll of somebody else,
and in the process of that effort they write articles and/or books
that specifically name agents who they then allege are double
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agents. Would or would not they be guilty under the law, knowing
that by exposing the names they would reveal that they had access
into the inner sanctum of the agency, or that they would not get
the name if they did not have access. Would that not put them in a
position of being subject to the "reason to believe it would impair"?
Mr. WILLARD. I am not sure that I can agree with that.
Senator BIDEN. Would you believe that it is possible that it could
be?
Mr. WILLARD. It would seem to me that the exposing of Commu-
nist double agents in the ranks of the CIA would assist American
intelligence activities and not impair or impede them.
Senator BIDEN. It surely would; but do you think it would assist?
Why do you think it is that we in the Intelligence Committee and
in the intelligence community do not expose agents who are double
agents? Why do you think we do not do that? Do you realize that
we do not do that? Do you realize that when we find out there is
something awry within the community, by naming the person as a
double agent we will in fact jeopardize an operation, we will in fact
somehow blow the cover of other people, so we do not do it? Do you
realize we do not do that?
Mr. WILLARD. Well, then, I would suggest that the journalist
whom you have hypothesized should take advantage of the provi-
sions of the bill and inform the committee of these double agents.
Senator BIDEN. I agree; the question I have is: If they do not, are
they guilty of a crime? That is all I am trying to find out.
Mr. WILLARD. I think the "reason to believe" standard is one that
requires consideration of all the facts and circumstances. It is hard
to predict from such a bare hypothetical exactly how the standard
would be applied.
Senator BIDEN. Would you acknowledge that it would at least
raise a question?
Mr. WILLARD. I think, Senator Biden, you have raised a question.
Senator BIDEN. Thank you. [Laughter.]
Thank you very much. I have no more questions for this witness,
Mr. Chairman. Thank you for your indulgence.
Senator DENTON. Senator East?
Senator EAST. Mr. Chairman, I think we have exhausted this
? subject. I appreciate that you have other witnesses, and I do not
wish to unduly impose upon their time, so I would like to propose
that we proceed with our next witnesses.
Senator DENTON. Thank you. And as usual, we will hold the
record open for written questions to be submitted to the witnesses.
Thank you very much, Mr. Willard, for your helpful testimony
this morning.
Mr. WILLARD. Thank you for your courtesy, Mr. Chairman.
Senator BIDEN. Thank you, Mr. Willard.
[Prepared statement of Richard K. Willard follows, also re-
sponses to questions submitted by Senator Leahy:]
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PREPARED STATEMENT OF RICHARD K. WILLARD, COUNSEL TO THE
ATTORNEY GENERAL FOR INTELLIGENCE POLICY
Mr. Chairman and members of the Subcommittee on security
and Terrorism, it is a pleasure for me to appear before you on
behalf of the Attorney General to express the views of the
Department of Justice regarding S. 391.
I would like to emphasize at the outset that the Justice
Department strongly supports the enactment of legislation that
would provide additional criminal penalties for the unauthorized
disclosure of the identities of the clandestine intelligence
officers, agents and sources who play such an essential role in
this Nation's foreign intelligence, cou!._-_-intelligence and
counter-terrorism efforts. The national security of the United
States depends to a substantial degree on the strength and
vitality of our intelligence services. This strength and
vitality is diminished, and the very lives of the individuals
involved in these activities on behalf of the United States may
be endangered, by their unauthorized identification to the
media, the public and, as a natural consequence, to the
intelligence and security services of our adversaries. We
believe that additional legislation of this type would be
invaluable in deterring and punishing those who would make such
unauthorized disclosures.
It has been the position of the Department since discussion
of such legislation began in earnest a few years ago, that the
knowing disclosure of the classified identity of a clandestine
officer, agent or source of a U.S. intelligence agency can
constitute a violation of sections 793(d) and (e) of the
existing espionage statutes included in Title 18 of the United
States Code. Nonetheless, additional and more specific
legislation would facilitate prosecutions of those who seek to
neutralize such individuals by their public exposure. Such
legislation would clearly demonstrate the Government's concern
for the welfare of these persons and, if carefully crafted, will
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enable the Government to avoid several difficult problems that
are encountered in prosecutions pursued under the current
espionage laws. For example, current law criminalizes attempts
to communicate, deliver or transmit information relating to the
national defense. It has never been clearly established that
the publication of such information in a book, magazine or
newspaper is activity of a nature intended to be deterred by
this prohibition. While the Department has argued that
publication is included, we agree it would be desirable for the
Congress to resolve this issue as regards the classified
identities of clandestine intelligence personnel. An
intelligence agent's identities protection bill would also
remove from the Government the burden of demonstrating in each
case that the information disclosed is related to the national
defense and could be used to the harm of the United States or
the advantage of a foreign nation.
I will now address the provisions of S. 391, the bill being
considered by this Subcommittee after its introduction in this
Congress by Senator Chafee on behalf of himself and a number of
other distinguished Senators. The bill would prohibit the
disclosure of information identifying a "covert agent" -- a
defined term covering a range of Government employees, agents,
informants and sources. Varying penalties would be applied to
three different categories of persons who may be involved in the
unauthorized disclosure of such information.
The first category is described in section 601(a) of the
bill and includes persons who have or have had authorized access
to classified information that identifies covert agents. A
person in this category who intentionally and knowingly
identifies such an agent to a person not authorized to receive
classified information would be subject to a maximum fine of
$50,000, a prison term of up to ten years, or both.
The second category is described in section 601(b) and
includes persons who learn the identities of covert agents as a
83-094 0-81--5
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62
result of having authorized access to any classified
information. The information to which the person has access
need not, as in the first category, specifically identify covert
agents. However, it is necessary to prove that the identity is
learned by virtue of the authorized access. A person in this
category who knowingly and intentionally identifies a covert
agent to a person not authorized to receive classified
information would be subject to a maximum fine of $25,000, a
prison term of up to five years, or both.
These provisions will add substantial protections against
disclosures by current and former Government employees and
contractors who have had authorized access to classified
information and the identities of covert agents. The fact that
these persons have had access to classified information lends an
aura of credibility to disclosures by them and may provide them
with a degree of expertise regarding how covert identities are
concealed and the means for piercing such concealment measures.
Because they have occupied positions of special trust and have
been provided access to classified information by the
Government, these persons would be barred by the bill from
making any unauthorized disclosure of the identity of a covert
agent, even when based on informed speculation or the analysis
of publicly available information. The Department believes
these restrictions are justified and sustainable.
We have one suggestion concerning these provisions.
Neither section now includes a provision that would criminalize
"attempts" to commit the proscribed actions. Such a provision
would specifically authorize the Government to initiate a
prosecution of any person who meets the standards of sections
601(a) or (b) and who has taken a substantial step toward, but
has not completed, the disclosure of the identities of covert
agents. Such undertakings should be deterred and subject to
punishment without forcing the Government to delay until the
identities have actually been disclosed to the public. We
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63
believe the penalty for a violation of an attempt provision
should be less than for an actual disclosure.
The third and final category of persons covered by the bill
is described in section 601(c) and includes persons who, in
contrast to the'first and second categories, have not had
authorized access to classified information that identifies or
results in learning the identities of covert agents. This
provision would penalize a person in this category who knowingly
discloses the identity of a covert agent in the course of a
pattern of activities intended to identify and expose covert
agents and with reason to believe that such activities would
impair and impede the foreign intelligence activities of the
United States. A person who violates this provision would be
subject +-o a maximum fine of $15,000, a prison term of up to
three years, or both. This section has been the source of the
most difficult issues presented by this bill since it would
provide a criminal penalty for any person, including those who
have never had authorized access to classified material, who
discloses information identifying a covert agent with the
requisite state of mind even if the information is derived from
public sources.
The scope of this provision extends it beyond the reach of
the current espionage laws as they have been applied. As I have
stated, those laws extend protection to information relating to
the national defense. In the case of U.S. v. Heine, 151 F.2d
813 (2d Cir. 1945), it was held that providing a foreign
government with information accumulated from public sources did
not constitute an offense under the current espionage statutes
even if the action is accompanied by the requisite intent to
injure the U.S. or provide advantage to a foreign power. That
case was based, however, on the court's understanding of the
specific statutory language in question and the legislative
intent underlying its enactment. Certainly the language and
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history of the current proposed legislation will preclude any
effort to limit its scope based upon the Heine precedent.
It has also been argued that the principles of the First
Amendment are done violence where the Government seeks to punish
actions based upon information that is available to the public.
We do not believe this argument has any merit. The First
Amendment is not absolute, and we are confident that a carefully
drafted bill such as S. 391 is constitutional. ['~na-essional
hearings over the past two years have well docuinentc the
serious harm to the national defense caused by actions the
statute is intended to prevent. When compared with the
extremely limited burden on free speech, we believe that this
serious harm justifies the proposed legislation.
We also believe the objective standard of intent in section
601(c) would pass constitutional muster under a First Amendment
or due process challenge. This type of "reason to believe"
standard has been found by the courts to be valid and has
survived constitutionally based charges of overbreadth and
vagueness. See, e.g., United States v. Bishop, 555 F.2d 771
(10th Cir. 1977); Schmeller v. United States, 143 F.2d 544 (6th
Cir. 1944). We believe this standard is preferable to the
specific intent standard contained in the current House version
of this legislation, section 501(c) of H.R. 4. We believe it
would facilitate prosecution of proscribed disclosures and would
be sustained by the courts.
A question has been raised by various Congressmen analyzing
their analogous identities bill, H.R. 4, whether it is
appropriate to include covert FBI agents, sources and informants
in the scope of this legislation. The argument for noninclusion
is premised on the dual contentions that FBI personnel operate
domestically, rather than abroad, and hence, are better
protected from the risk of physical harm and that there is no
empirical record of FBI covert intelligence agents being exposed
by individuals in the business of "naming names." These
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contentions, however, miss the mark for two significant reasons.
First, it is inaccurate to state that FBI covert agents are
insulated from a risk of physical harm or that they operate
exclusively in the United States. The fact that someone has not
as yet successfully exposed an FBI agent does not indicate there
is no threat that it can occur. We know, for example, that
people have attempted to use Freedom of Information Act requests
to determine the identities of FBI informants' identities in a
law enforcement context. In addition, there are many instances
when FBI undercover agents or assets must travel abroad in the
course of a counter-intelligence or counter-terrorism
investigation. When they are operating abroad they are as
vulnerable to exposure and physical harm as a similarly located
covert agent working for the Central Intelligence Agency or the
Department of Defense.
:4oreover, even when an FBI agent operates domestically, he .ay
be operating undercover in a violence-prone terrorist group. In
this situation, his safety cannot be assured if his FBI
affiliation is revealed.
More significantly, however, the argument against
noninclusion of FBI agents appears to underestimate the
deleterious affect of such a disclosure on the U.S.
government's ability to maintain effective counter-intelligence
and counter-terrorism operations. These operations are critical
to our ability to monitor and prevent damaging penetrations by
hostile intelligence services. If compromised by public
disclosure of our covert agents, serious damage to our national
security could result. In my view, the risk of exposure to FBI
covert agents is sufficiently high and the magnitude of the harm
sufficiently grave to warrant inclusion of FBI covert agents in
this bill.
I should add in conclusion that in the view of the
Department, S. 391 can be improved in one minor respect. There
is currently no definition or explanation in the bill regarding
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the meaning of the term "foreign intelligence activities" as
used in ? 601(c) of the bill. It would be helpful to make
clear, at least in the legislative history of the bill, that
this term is intended to encompass both intelligence collection
functions and the conduct of covert operations.
:Ar. Chairman, it is our belief that this bill will strike a
proper balance among the various competing interests.
Legislation of this nature is critical to the morale and
confidence of our intelligence officers and their sources. The
Justice Department strongly recommends that it be reported out
of this Subcomittee with a favorable recommendation for
enactment by this Congress.
I would be happy to address any questions you may have at
this time.
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Response to Questions Submitted to
Richard K. Willard, Counsel for Intelligence Policy,
by Senator Patrick Leahy Concerning S. 391, Proposed-
Intelligence Identities Protection Act
Question 1:
Mr. Willard, you state in your prepared testimony that the
Justice Department prefers S. 391 to H.R. 4 because "we believe
it would facilitate prosecution of proscribed disclosure." Do
you think that's the standard that we ought to apply when
? legislating in the sensitive area of the First Amendment? Is
trying to get as close to the line as possible without crossing
over a somewhat dangerous strategy? Many constitutional
scholars have commented that section 601(c) of this bill does
cross the line into unconstitutionality. Don't you think we
? might be more prudent and pass legislation which would clearly
meet a constitutional test?
As I testified before the Subcommittee on May 8, 1981, it
is the view of the Department of Justice that both S. 391 and
H.R. 4 are constitutional as presently drafted. Both proposed
bills criminalize only a very narrow, clearly defined category
of conduct. We prefer the objective intent standard of S. 391
because it can be more effectively enforced and avoids requiring
an exploration into the political or ideological beliefs and
prior statements of a defendant in order to prove specific
intent. Where the Congress is considering two constitutional
approaches toward criminalizing the unauthorized disclosure of
covert agents' identities, we do not believe it to be dangerous
or imprudent to choose the alternative that can be most
effectively and objectively enforced.
You refer in your testimony to the well documented harm to
the National Defense caused by actions the statute is intended
to prevent. The cases of well documented harm you refer to are
all cases where the person naming names had the unrefutable
intent of neutralizing the covert agents identified. S. 391
does not require that the person identifying the agent have this
"bad purpose." Do you think that the evidence that you have
seen to date, forces us to go further than enacting a law which
would only punish people with access to classified information
or other people who had the specific intent to neutralize a
covert agent or assist a foreign power to impair or impede the
effectiveness of our covert activities?
Response :
The simple answer is "yes." S. 391 now requires that an
individual engage in a pattern of activities with the specific
intent of identifying and exposing covert agents. This standard
was adopted to criminalize only those disclosures made by
persons who are in the business of "naming names." The
purported motive for the specific disclosures made by such
persons should be irrelevant where the activities would
predictably lead to impairment of U.S. foreign intelligence
capabilities and risk of harm to the agents who are exposed.
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According to testimony by Senator Chafee before the Senate
Judiciary Committee last year, the publishers of the Covert
Action Information Bulletin, who have been responsible for a
number of the disclosures that have prompted this legislation,
have maintained that their disclosures are made "to improve the
intelligence activities of the United States." Intelligence
Identities Protection Act, S. 2216, S. Rep. No. 96-86,
96th Cong., 2d Sess. 27 (1980). This example illustrates that
the "reason to believe" standard included in S. 391 is neces-
sary to prevent the type of disclosures that have harmed U.S.
intelligence activities to date, and that a specific intent
standard requiring proof of a "bad purpose" may result in an
ineffective statute.
Question 3:
The bill would allow prosecution of an individual whose
only sources for material are in the public domain. Do you
think that we are under a constitutional law duty to seek other
remedies to end the practice of naming names from public
sources, before we take the step of making the activity itself
illegal?
We understand that the Executive branch has 'coon attempting
to devise various means to enhance the protection afforded the
identities of covert intelligence covert agents. The bill
itself requires the President to take additional steps to
improve this situation. While there is a general preference for
exploring other measures before criminalizing conduct, we
believe the proposed bill is a necessary and reasonable approach
to the immediate problem and that these other measures do not
preclude the Congress from acting now to pass legislation such
as S. 391.
Question 4:
Your prepared testimony refers to the case of U.S. V. Heine
which held that providing a foreign government with information
accumulated from public sources did not constitute an offense
under the espionage statutes. You dismiss the case as merely a
statutory interpretation of the Espionage Law. Do you give any
credence to the argument that Judge Hand's statutory
interpretation was done to save the constitutionality of the
statute?
Response :
The pertinent holding in U.S. v. Heine, 151 F.2d 813 (2nd
Cir. 1945) very clearly relies on an interpretation of the
espionage provision that was then included at 50 U.S.C. ? 32.
We are unable to determine whether Judge Hand's intention in
deciding the case on this statutory ground was to save the
statute from some constitutional infirmity. In any event, the
bill under consideration is much more narrowly drawn and would,
we believe, survive such a challenge.
Question 5:
Section 601(c) requires that exposure of a covert agent be
done "in the course of a pattern of activities intended to
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identify and expose covert agents." I want to ask you a couple
of questions about the meaning of the term, pattern of
activities. Would this term in your view require the exposure
of more than one agent or would a series of activities leading
to the exposure of a single agent constitute proof of this
element of the offense?
Wouldn't a reporter investigating whether a foreign
official, no longer in office, had at one time provided the CIA
with information be engaged in a pattern of activities intended
to identify a covert agent?
The term "pattern of activities" is defined in section
606(1) of S. 391 to mean "a series of acts with a common purpose
or objective." It has been the position of the Department that
an investigation focusing on an individual asset or source does
not meet this statutory definition. Intelligence Identities
Protection Act, S. 2216, S. Rep. No. 96-86, 96th Cong., 2d Sess.
51 (1980)(statement of Robert Keuch, Associate Deputy Attorney
General). Therefore, a reporter in the scenario provided in
your question would not be liable under this statute.
Question 6:
You have suggested that we create attempt crimes under
Section 601 (a) and 601 (b). I assume you would oppose creating
an attempt crime under Section 601 (c). Is that correct?
Could you describe how one would attempt to disclose any
information identifying a covert agent?
I can imagine a situation where someone is carrying a
packet of leaflets down the street getting ready to pass them
out. But what about the situation of a person going off to a
meeting with the thought that he may disclose the name of an
agent to an unauthorized person? Would that constitute an
attempt to disclose the name of a covert agent?
Yes, we would oppose the addition of an "attempt" provision
to section 601(c). We have suggested adding an "attempt"
provision only to the two sections involving government
employees or contractors who have occupied positions of special
trust and who have been provided access to classified
information in the course of their official duties.
The criminal law of attempts punishes only a person who has
taken a substantial step toward commission of the crime and
whose activities reflect an intent to carry out the proscribed
action. Therefore, in the situation you have described where a
person goes to a meeting with the thought that he may disclose a
name of a covert agent, his conduct would not constitute an
attempt unless there was evidence beyond a reasonable doubt that
he intended to disclose a covert identity and he had taken a
substantial step toward that end. For example, if he had called
a press conference, told others what he intended to say and
placed on the podium a written list of the names he intended to
disclose, a jury would be entitled to consider all these
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circumstances surrounding the defendant's actions to determine
whether his actions sufficiently evidenced a design unlawfully
to disclose the classified identities of covert agents.
A more likely example of a punishable attempt is where an
employee having access to classified information that identities
a covert agent mails or delivers a list of covert agents to a
person believed to be an unauthorized person, and that person
turns out to be an undercover agent of the U.S. Government. A
jury could conclude that a substantial step toward fulfillment
of the crime had been undertaken by this employee.
Senator DENTON. I would like to welcome Mr. Morton H. Hal-
perin, director; Center for National Security Studies, American
Civil Liberties Union; and Mr. Jerry J. Berman, legislative counsel,
American Civil Liberties Union, and ask them if they would sum-
marize their statement as the last witness did in the interest of
time. Your entire statement will be in the record, gentlemen.
STATEMENTS OF MORTON H. HALPERIN, DIRECTOR, CENTER
FOR NATIONAL SECURITY STUDIES, AMERICAN CIVIL LIB-
ERTIES UNION, AND JERRY J. BERMAN, LEGISLATIVE COUN-
SEL, AMERICAN CIVIL LIBERTIES UNION
Mr. BERMAN. Thank you, Mr. Chairman, and members of the
committee.
We want to thank you for extending the American Civil Lib-
erties Union this opportunity to testify on S. 391, the Intelligence
Identities Protection Act of 1981. The American Civil Liberties
Union is a nonprofit and nonpartisan organization of over 200,000
members dedicated to defending the Bill of Rights. We have testi-
fied many times on this legislation over the last several years, and
we also have interests in other matters now before the Subcommit-
tee on Security and Terrorism. So this probably will not be our last
appearance before this committee.
Mr. Halperin to my left, and myself have a joint statement, but
we take turns delivering testimony on this bill and it is Mr. Hal-
perin's turn. [Laughter.]
Mr. HALPERIN. Thank you, Mr. Chairman.
I will summarize very briefly what seem to us the main points
about this legislation.
First, as Senator Leahy noted before, there is a real question in
our view, and one which seems to be shared by the Heritage
Foundation, about whether the real problem here is the action of
individuals who publish names, or whether the real problem is not
the fact that the CIA and the U.S. Government has put informa-
tion in the public domain which while, as Senator Chafee notes,
does not say these people are CIA agents, does enable people, as
the CIA has said again in its testimony today, with a high degree
of accuracy to identify who are the CIA agents serving abroad
under light cover.
The fact is that if those names can be identified with a high
degree of accuracy by a small number of Americans working in the
United States, they can equally be identified with a high degree of
accuracy by foreign groups who would propose to do harm to those
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individuals by threatening their lives, or doing physical harm to
them, or disrupting their activities.
We think the primary focus should be on taking steps which
make it impossible for foreign terrorist groups or American citizens
with a high degree of accuracy, with not a substantial amount of
effort, to identify covert agents. We would suggest that this legisla-
tion is almost entirely symbolic in that it, as the testimony has
said, suggests that the Congress of the United States does not
approve of naming names; but we suggest that legislation which
impinges on the first amendment should not be passed for a sym-
bolic purpose; that such legislation should only be passed if it can
have some real effect on protecting lives.
We think the case has not been made that this legislation, and
particularly section 601(c), will have any real effect unless steps are
? taken to provide adequate cover. And if those steps are taken, the
protection would not be necessary.
Now second, it is the view, as has been noted, not only of the
American Civil Liberties Union but of a substantial number of
legal scholars, that this section as now drafted is unconstitutional
because it makes it a crime to sift public information and draw
conclusions from that information. There are a substantial number
of Supreme Court cases, and it is the view of a number of constitu-
tional scholars, that the Supreme Court has held that one cannot
make it a crime for the press to publish information which the
press lawfully acquires.
This bill would make it a crime for the press to publish informa-
tion which it lawfully acquires, whether it acquires that informa-
tion from foreign intelligence sources, from foreign governments,
from foreign newspapers, from official publications of the U.S.
Government, it would be a crime for a reporter or a scholar to
engage in an effort to mine those sources to learn the identities of
agents and to publish, for any purpose, even to ferret out corrup-
tion or illegal activities. We think that the Constitution as it has
been defined by the Supreme Court-not simply in the judgment of
the American Civil Liberties Union-prohibits the Congress from
passing a law that punishes private citizens who analyze publicly
available information and who draw conclusions from it and pub-
lish that information.
Now we think it is even clearer that the statute is unconstitu-
tional, since the Senate version also lacks any need for a bad
E purpose. The Supreme Court in the Gorin case, in analyzing the
espionage laws, said they were constitutional because one had to
have a bad purpose. One had to intend to injure the United States
or give advantage to a foreign power; that if you did things with
that purpose, with that bad purpose, the Congress could make that
illegal even if you were talking about the transfer of information.
Professor Kurland is not alone in the judgment that a bad pur-
pose is clearly needed. Professor Scalia, the University of Chicago,
now at Stanford, testifying before the House committee just a few
days ago expressed the clear view that the absence of a bad pur-
pose would make the statute unconstitutional. That is the view of
almost every person who has examined this bill who is not in fact
now in the Justice Department.
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The Justice Department has now made it clear, and it did it
again this morning, that a bad purpose would be acceptable; that it
could accept the House version as well as the Senate version. We
think that any chance that this bill has to be constitutional re-
quires that there be a bad purpose; and that it be a bad purpose
which goes to directly neutralizing agents' activities or injuring the
United States.
Finally, I would like to say just a brief word about the question
of the inclusion of the FBI. The objection is not to the inclusion of
FBI agents who serve abroad. The objection is simply to the inclu-
sion of FBI agents who serve within the United States who may be ?
involved in spying on American citizens involved in political activi-
ties who are suspected of being involved with foreign powers. We
think that raises very serious additional constitutional questions
about the right of those groups to ferret out informers who may be
within their organizations. In our judgment, that carries the bill
into another dangerous area for which there is no record at all of
necessity.
Mr. Chairman, that is a brief summary of our remarks. We
would be delighted to answer your questions.
[The complete joint statement of Mr. Halperin and Mr. Berman
follows:]
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PREPARED STATEMENT OF JERRY J. BERMAN AND MORTON H.
HALPERIN ON BEHALF OF AMERICAN CIVIL LIBERTIES UNION
We want to thank you for extending the American Civil
Liberties Union this opportunity to testify on S. 391, the
"Intelligence Identities Protection Act of 1961." The American
Civil Liberties Union is a non-profit, and non-partisan organi-
zation of over 200,000 members dedicated to defending the Bill
of Rights.
The driving force behind S. 391 is, of course, the desire
of the Administration and the Congress to provide protection
for Americans serving their country abroad under cover and to
prevent their intelligence relationships from becoming known
to foreigners who may seek to harm them or neutralize their work.
We do not condone the practice of naming names and we fully under-
stand Congress' desire to do what it can to provide meaningful
protection to those intelligence agents serving abroad, often in
situations of danger.
At the same time, we believe the Congress must be mindful--
and we believe it is--that this legislation, particularly
section 601(c) will operate in an area, as one Committee Report
1/
puts it, "fraught with first amendment concerns." As such,
it deserves the most careful scrutiny both to determine (1) whether
its prohibitions will provide meaningful protection to our agents
serving abroad so as to justify its limitation on freedom of
speech, and (2) whether the legislation is drawn in such a way
as to pass constitutional muster.
In testifying on last year's identical version of this
bill, S. 2216 as reported by the Senate Intelligence Committee,
we stressed before this Committee our view, one shared by over
60 law professors and consitutional experts, that section 601(c)
(formerly section 501(c)) is unconstitutional on its face. While
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reiterating our position that the section is unconstitutional, we
want to focus our comments today on whether this bill will accomp-
lish the purpose it is designed to serve. In particular, will
section 601(c)'s prohibitions make it difficult or impossible
for foreign intelligence services, terrorist organizations, or
others opposed to our interests to identify our intelligence
officers serving under cover abroad? We believe the answer is no.
If we are correct, then the legislation before you is merely
symbolic in its protection for agents but does violence to the
principles of the First Amendment. Certainly, Congress should not
enact such legislation.
At the outset, we want to make it clear that we do not view
sections 601(a) and (b) as symbolic or constitutionally defective.
These sections would make it a crime for a present or former
government official who learned the identity of CIA or FBI agents
or sources through access to classified information to knowingly
reveal those identities to an unauthorized person. Since such
officials have obtained access to the identities of sources through
their employment, we do not think the imposition of a criminal
penalty on the disclosure of such information by these officials
to be unreasonable. Moreover, these officials are in a position
to reveal the identities of agents and sources under deep cover
and whose identities cannot be gleamed from public sources.
Section 601(c), on the other hand, would seek to punish
any person who "discloses any information that identifies an
individual as a covert agent," even if the information is in
the public domain or readily available to any person or group
who takes the trouble to ferret it out. The information which
is needed to identify most of those whose names are published
is available, the CIA admits, from the Biographic Register and
the diplomatic lists. According to the CIA, the group that is
targeted for prosecution under this section, the Covert Action
Information Bulletin, prints lists of CIA agents that are
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a regurgitation from some compendium... Others could
.be taken from reports or other kinds of documents
that may have been in unclassified context... In short,
what they are taking it from is a garden variety bio-
graphical compendium. They are saying this is past
history, but presently he is the CIA station chief in
country X. 2/
The Biographic Register is, of course, a United States government
publication whose back issues are available in libraries around
the world. Although the issues for the past few years have not
been released, the State Department has not classified them, and
the government may be forced to release them as a result of a
pending Freedom of Information Act lawsuit brought on behalf of
diplomatic historians. Simpson v. Vance, No. 79-1889 (D.C. Cir.,
Sept. 25, 1980). Indeed, the State Department considered decision
not to classify the Biographic Register casts considerable doubt
on the need for and wisdom of congressional enactment of
section 601(c).
The techniques for determining the identities of CIA employ-
ees under light diplomatic cover from these publically available
sources have been explained in several widely published articles.
The root of the problem, according to the CIA, is that
because of the disclosure of sensitive information
based on privileged access and made by faithless gov-
ernment employees with the purpose of damaging U.S. in-
telligence efforts... the public has become aware of in-
dicators in these documents that can sometimes be used
to distinguish CIA officers. 3/
If the CIA were completely candid, it would admit that without
regard to faithless employees, it has been widely known for many
years that the Biographic Register could be used to determine which
persons listed there are likely to be CIA officials, and journalists
and academics have routinely used this technique to determine who
the CIA officers in any given capital are.
The issue, Mr. Chairman, is not disclosures made by the press
or public but the failure to provide adequate cover for our intelli-
gence officers abroad. And we are not alone in making this ob-
servation. As the Heritage Foundation states in its report and
recommendations on the Intelligence Community:
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Unfortunately, the 'official cover' provided
to officers of the Central Intelligence Agency,
usually by the Department of State, is routinely
inadequate to withstand all but the most cursory
of inspections. 4/
The main import of this is that Congress cannot, by virtue of
this legislation, prevent any group in a foreign country which
seeks to disrupt American intelligence activities or to harm
CIA employees from learning the identities of the CIA employees
stationed under diplomatic cover in its capital. Certainly, the
bill will not protect against the counterintelligence
activities of hostile intelligence services or others who use
the surveillance techniques these groups are said to use.
The First Amendment Issue
While section 601(c) will not stop foreigners from learn-
ing the identities of CIA employees under diplomatic cover and
may even encourage them to use the above mentioned techniques
by underscoring their effectiveness, section 601(c) will clearly
succeed in chilling public debate about intelligence matters
in violation of the First Amendment. The legislation before you
could make criminal the publication of identities in circumstances
fully protected by the First Amendment and in many circumstances
where the publication of intelligence identities is essential for
understanding or debating important issues.
To understand the potential impact of this bill on public
debate, it is first of all necessary to separate rhetoric from
reality as to the breadth of the intelligence identities protected
by this legislation. Because the protection of Americans serving
abroad in a covert capacity is the principal concern of the bill's
drafters, they have often described the reach of the legislation
in terms which would lead the public to believe that only the
identities of Americans serving abroad would be off limits to the
press or public. As Senator Chaffee put it last year:
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 go
5/
about our business.
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77
Or as Frank Carlucci, former Deputy Director of Central In-
telligence, stated before this Committee in September of 1980:
(O)ur officers willingly have accepted the risks nec-
essarily inherent in their taxing and dangerous occup-
ation. They have not accepted the risk of being stabbed
in the back by their fellow countrymen and of being left
6/
unprotected by their Nation's government.
In fact, S. 391's definition of "covert agent" (sec. 606(4))
is far broader. While it covers United States intelligence
officers or employees who are serving abroad or who have served
abroad in the last five years and United States citizens who
are residing abroad and acting outside the United States as agents,
informants, or sources of operational assistance to our intelli-
gence agencies, it also includes all foreigners in the United
States and abroad who at any time have served as agents, infor-
mants, or sources of operational assistance to our intelligence
agencies. By amendment last year, covert agent also includes
FBI agents and informants with the foreign counterintelligence
and counterterrorism components of the FBI in the United States
or abroad.
Because of the breadth of the definition of "covert agent,"
witnesses before this and other committees have fairly argued
that, unless narrowed in some other way, section 601(c) could
have applied to a number of past press stories, academic studies,
and other research had it been on the books. For example,
-- the New York Times story that Francis Gary Powers
was pilot of the U-2 spy plane;
- the Washington Post story that King Hussein of
Jordan was an agent or source of operational assis-
tance to the CIA;
-- press stories about Cubans involved in the Bay of
Pigs operation;
-- FBI agents involved in illegal breakins
targeted against persons associated with the
Weather Underground (a counterintelligence,
83-094 0-81--6
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78
counterterrorism investigation);
-- a wall Street Journal article detailing covert ties
between the CIA and Boeing's Japanese agent.
In all of these stories, the press or an author made the decision
that the name was essential to tell the story or to give it
credibility. All of the stories involve "covert agents" as de-
finied in S. 391, even though in none of these cases is it argu-
able that the narrow purpose of the bill is being served--the
protection of Americans serving abroad in circumstances which
place their lives in jeopardy.
According to the bill's drafters and supporters, it is not
their intent to reach cases such as this, but only those who are
in the business of "naming names." To avoid this result, they
added the requirement that a person must be shown to be engaged
a pattern of activities intended to identify and ex-
pose covert agents...
However, we believe this describes the activities of the press,
researchers, and scholars. The very act of investigative re-
porting to uncover CIA involvement in foreign assassination
plots or illegal FBI COINTELPRO activities is a "pattern of
activities intended to identify and expose covert agents..."
And the Justice Department testified that "a single/act of dis-
7
closure" meets the disclosure element of the bill.
Although the Senate Intelligence Committee Report of last
year is replete with language that suggests that the bill
distinguishes between public communication of information
essential to informed discussion and the indiscriminate naming
of names, the committee made a change in the bill during mark-up
at the suggestion of Justice Department officials who wanted to
avoid such a distinction. It included an objective "reason to
believe" standard rather than a subjective, bad purpose test.
This "objective" standard would clearly cover members of the press
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and those contributing to public debate and not simply those
in the business of naming names.
Given the definition of covert agent, the absense of bad
purpose, and the fact that investigative reporters may engage in
a "pattern of activities intended to identify and expose covert
agents," S. 391 as introduced could reach the following scenarios,
-- A reporter suspects that the Administration in its
eagerness to give aid and assistance to the Savimbi-
led effort in Angola has interpreted the Clark Amend-
ment to permit aid which is used for other than
military purposes. He investigates, discovers, and
exposes the fact that the CIA is giving such aid to
Savimbi. He reports also that the intelligence com-
mittees were not notified of the aid, in apparant
violation of the oversight provisions of the
National Security Act as amended last year.
A reporter suspects that a terrorist group made
up of Cuban exiles in Florida is controlled by
persons who were former sources of operational
assistance to the CIA. She investigates, uncovers
the past CIA relationships, and publishes the
story, giving their identities.
These scenarios and a number of others make it clear that
the scope of the bill would cover legitimate newsqathering
activity and public debate on important intelligence and foreiqn
have no intention of covering such situations, but the plain
language of the bill remains very broad and would clearly chill
public: debate.
The Constitutional Issue
We believe that section 601(c) is facially unconstitutional
in punishing the publication of information which has come into
the possession of private citizens, the public, and the press.
We believe this is so even if the information were classified,
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see New York Times V. United States, 403 U.S. 713 (1971) but
particularly because it includes information--however sensi-
tive--which has come into the public domain. The government
has the right to restrict sensitive information, but it cannot
attempt to punish its publication once it has become public or
come into the possession of the press. A line of Supreme Court
cases supports this position. Landmark Communications, Inc. v.
Virginia, 435 U.S. 829 (1978) (statute prohibiting publication
of confidential proceeding into judicial misconduct); Cox Broad-
casting v. Cohn, 420 U.S. 469 (1975) (statute prohibiting pub-
lication of the identity of a juvenile offender which press
obtained from court records). As Justice Burger has stated
The government cannot restrain publication of
whatever information the media acquires--and
which they elect to reveal.
Hutchins v. KQED, Inc., 438 U.S. 1, 13-14 (1978); see also Smith
v. Daily Mail Pub. Co., Inc., 99 S. Ct. 2267 (1979); Oklahoma
Publishing Co. v. District Court, 430 U.S. 308 (1977).
Perhaps the case most directly on point is the widely
quoted opinion of Judge Learned Hand in United States v. Heine,
151 F. 2d 813 (1945). Heine engaged in an activity very similar
to that which appears to have given rise to section 601(c) of
S. 391. In overturning this conviction for espionage, Judge
Hand stated
The information which Heine collected was from
various sources: ordinary magazines, books and
newspapers; technical catalogues, handbooks and
journals;... This material he condensed and arranged
in his reports.. .All this information came from
sources that were lawfully acessible to anyone who
was willing to take the pains to find, sift, and
collate it.
Although it can be argued that Heine simply involves stat-
utory interpretation, it can also be read as a judicial inter-
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pretation which saved the constitutionality of the espionage
statute by excluding analysis of published information even if
undertaken to aid a hostile foreign nation. In this regard, it
should be pointed out that the Justice Department last year
cited Heine in testifying that section 501(c) of S. 2216 and
H.R. 5615 was constitutionally dubious. Stating that no one can
be convicted of espionage or of compromising information relating
to the national defense "if the information was made available
to the public, or if the government did not attempt to restrict
its dissemination or if the information was available to every-
one from lawfully accessible sources," Deputy Assistant Attorney
General Robert L. Keuch expressed critical doubts about section 501(cl
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.. .A speaker's statements
about covert activities could be punished even though they
are not based on access to classified information, do not
use inside methodology acquired by the speaker in
government service, and are unimbued with any special
8/
authority from former government service...
Unaccountably, the Justice Department retracted its con-
stitutional concerns when the Senate Intelligence Committee amended
section 501(c) (now 601(c)) to add a "pattern of activities"
element and changed the specific intent requirement (intent to
impair or impede intelligence activities) to an objective intent
(reason to believe that such activities would impair or impede
the foreign intelligence activities of the United States). To
be sure, the Justice Department expressed the concern that the
subjective intent element could have a "chilling effect" on
critics of intelligence activities:
A mainstream journalist who occasionally writes
stories based on public information concerning
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which foreign leaders are thought to have intelli-
ence 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 activities.
However, the "reason to believe" standard does not cure the
"chilling effect" since critic and non critic must guess as to
whether or not he or she is covered by the statute and certainly
does not resolve the "political born classified" problem.
Significantly, while the ACLU and a number of constitut-
ional experts such as Lawrence Tribe of Harvard and Floyd Abrams
believe that the section cannot be made constitutional, the
weight of opinion is that if section 601(c) has any chance of
passing constitutional muster, it must include a specific in-
tent, or bad purpose requirement. Not, we might add, a general
"intent to impair or impede intelligence activities" as set forth
in H.R. 4--which every citizen has a right to do through speech
and communication under the First Amendment--but a bad purpose
such as giving advantage to a foreign power or neutralizing the
activities of an agent by the fact of disclosure itself. In
this regard, see Gorin v. United States, 312 U.S. 19 (1941) in-
terpreting the espionage statute's "intent or reason to believe
that (information) will be used to the injury of the United States
or to the advantage of a foreign nation" to require bad faith
on the part of the defendant. See also Letter from Professor
Philip B. Kurland to Senator Edward Kennedy, September 25, 1980;
In response to your request, I can frame my
opinion on the constitutionality of section 501(c)
very precisely. I have little doubt that it is
unconstitutional. I cannot see how a law that
inhibits the publication, without malicious intent,
of information that is in the public domain and
previously published can be valid. Although I
recognize the inconstancy and inconsistency in
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Supreme Court decisions, I should be very much
surprised if that Court, not to speak of the lower
federal courts, were to legitimize what is, for me
the clearest violation of the First Amendment attempted
9/
by Congress in this era...
We also call your attention to the testimony of Antonin Scalia,
Professor of Law, Stanford University, and Philip B. Heymann,
Professor of Law, Harvard University Law School before the House
Intelligence Committee on April 8, 1981; both of them took similar
positions with respect to H.R. 4.
Conclusion
Mr. Chairman, S. 391 is unprecedented legislation. Only
twice in our history has Congress legislated a Prohibition on the
right of the press to publish classified information, a narrow
prohibition on publishing codes, 18 U.S.C.? 798 and highly sensitive
atomic energy information, 42 U.S.C. ? 2274. Both involve highly
technical information which minimally rstrict the flow of news.
When broader categories of information have been involved, such
as when Congress considered and enacted the current espionage laws,
the press and publication were excluded from the reach of the
statutes. See Edgar and Schmidt, The Espionage Statutes and the
Publication of Defense Information, 73 Col. L. Rev. 930-1087 (1973).
As we and others have shown, S. 391's section 601(c) can
seriously impact on speech and communication concerning important
intelligence and foreign policy matters. It is opposed on policy
and constitutional grounds by almost every major press organizat-
ion, by leading newspapers including the New York Times, the
Washington Post, and Chicago Tribune, and by over 60 law professors
and constitutional experts. Even most constitutional experts who
favor this legislation, oppose the Senate version.
Moreover, the bill may have a serious impact on First
Amendment principles without solving the problem of protecting our
agents and intelligence activities overseas. Because of light
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84
cover, the bill may amount to no more than a symbolic gesture if
passed.
We urge you not to pass S. 391's section 601(c). However, if
you are going to proceed, we ask you to explore ways to narrow
the reach of the bill. For example, the definition of, covert
agent should be narrowed to include only those U.S. officers or
employees serving overseas. Foreign leaders and FBI agents at
home should be excluded from the definition. At the same time,
the bill should substitute a bad purpose, perhaps along the lines
of the espionage statutes, in place of the objective "reason to
believe" standard. (We submit that both intent and reason to
believe present similar prosecution proof and graymail problems
and should not be the basis for choosing one or the other
formulation). Finally, we believe that a "justification" defense,
which professor Robert Bork implies, l-/ should be spelled out in
the bill, so that it will not apply if the disclosure involves
illegal or unauthorized intelligence activities.
We again thank you for the opportunity to testify today on
S. 391.
1. Intelligence Identities Protection pct, Report of the House
Select Committee on Intelligence to Accompany H.R. 5615, p. 5
(Rept. 96-1219, Part I, 96th Cong. 2d Sess. 1980)
2. Intelligence Identities Protection Act, Report of the House
Committee on the Judiciary to Accompany H.R. 5615, p. 5 (Rept.
96-1219, Part 2, 96th Cong. 2d Sess 1980).
3. Ibid.
4. "The Intelligence Community", in Heatherly, Charles L. ed.,
Mandate for Leadership: Policy Management in a Conservative
Administration, p. 915 (Heritage Foundation 1981)
5. Statement of Senator John H. Chafee, Hearings before the
Committee on the Judiciary, U.S. Senate, 96th Cong. 2d Sess.
(Sen. No. 96-86, 1980) p. 34.
6. Statement of Frank C. Carlucci, Deputy Director of CIA, on
S. 2216 before the Senate Judiciary Committee, Sept. 5, 1980, in
Hearings Before the Committee on the Judiciary, United States
Senate, 96th Cong. 2d Sess. (Sen. No. 96-86, 1980) p. 66.
7. Statement of Robert L. Keuch, Associate Deputy Attorney General
on S. 2216, Before the Senate Judiciary Committee, Sept. 5, 1980,
Hearings, Note 5 supra., p. 90.
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8. Statement of Robert L.Keuch, Associate Deputy Attorney General
on H.R. 5615, in Hearings Before the Subcommittee on Legislation
of the Permanent Select Committee on Intelligence, House of
Representatives, 96th Cong. 2d Sess, (1980) p. 31.
9. First Principles, Vol. 6, No. 2, p. 6 (Center for National
Security Studies, November 1980).
10. Letter from Robert Bork, to The Honorable Peter P. Rodino,
Sept. 2, 1980.
4 Senator DENTON. Thank you very much, Mr. Halperin.
Either of you gentlemen may respond to these questions. Do you
believe that first amendment protection should ever give way to
national security interests? And if so, under what circumstances?
Mr. HALPERIN. We believe that Congress can pass legislation
which punishes individuals who disclose information with the
intent to injure the United States or give advantage to a foreign
power. That is what the current espionage laws do. We do not
think there is any doubt about their constitutionality; nor do we
think there is any doubt about the constitutionality of the first
sections of this bill, sections 601 (a) and (b) to punish individuals
who have gotten authorized access to classified information and
used that access to learn the identities of agents.
We do not believe that it is constitutional to punish private
citizens who use only publicly available information and who pub-
lish that information without any bad purpose.
Senator DENTON. Would you describe the nature of the American
Civil Liberties Union as an organization, its purposes and so forth?
Mr. BERMAN. I think I said that at the start.
Senator DENTON. Nonprofit, nonpartisan?
Mr. BERMAN. Yes. It is a--
Senator DENTON. I did not hear any tittering when we said
nonpartisan. I am hearing a lot of tittering on other statements.
Mr. BERMAN. I do not hear any tittering, Senator.
Senator DENTON. No, I do not in this audience, but I think I
would out in the hinterlands.
Mr. BERMAN. Well, I state that we are a nonprofit, nonpartisan
organization dedicated to the defense of the Bill of Rights. You
only have to look at the caseload of the American Civil Liberties
Union to know that we have cases in the first amendment area and
in other areas where the Bill of Rights is affected which cross the
political spectrum. I could list some of those cases for you, if that is
your wish.
Senator DENTON. Thank you, sir.
On Tuesday, July 8, 1978, Mr. Berman testified before the Senate
Intelligence Committee on S. 2525, and at that time inserted for
the record a long memorandum from the ACLU and the Center for
National Security Studies. Since that was joint, is there some con-
nection between the ACLU and the Center for National Security
Studies?
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Mr. BERMAN. Yes, Senator, the American Civil Liberties Union-
the Center for National Security Studies is a project of the Ameri-
can Civil Liberties Union Foundation.
Senator DENTON. It may be relevant, then, in this hearing to
note that among other things that memorandum stated that it was
the position of the ACLU and the CNSS not to support covert
action or espionage activities abroad in peacetime and this is a
continuation of the quote: "i.e., absent any congressional declara-
tion of war."
It would seem to me that since that is not the position of the
U.S. Government, that we might have a conflict of interest here. Is
this still the position of the ACLU and the CNSS?
Mr. BERMAN. Yes; it is. It is the official policy of the American
Civil Liberties Union. We have advocated that position before the
Congress. The Congress has not agreed with us, and has authorized
covert operations. We are still prepared, at a hearing where that is
the issue, to discuss that; but that is the position of the American
Civil Liberties Union.
By the way, it does not mean that because we have a position
against covert operations that that is the basis for or has any
reason why we object to the third section, section 601(c), of this
legislation.
Senator DENTON. It does strike me as curious that a group con-
taining men as intellectual as you would not realize that every
other major power, and indeed every minor power I can think of,
does engage in such activities and that it would not be in our
interests for self-protection to do the same. Do you know of any
major power that does not engage in these activities in peacetime?
Mr. BERMAN. No, Senator; we do not.
Senator DENTON. Does the ACLU and the CNSS believe that
American decisionmakers should be kept informed? And how can
this be done without intelligence collection?
Mr. BERMAN. I think we do need intelligence collection, sir.
Senator DENTON. But, then, not covert action or espionage activi-
ties abroad in peacetime?
Mr. BERMAN. I think the heart of our position goes to covert
operations abroad, Senator. The position on espionage, I think
there is room for disagreement within the ACLU. I just want to
recall that it was not surprising, I think, for the policy statement
at that time, given the record of revelations of how intelligence
collection and covert operations had gotten involved in dubious
operations abroad, the conduct of secret foreign policy, when our
commitment is to open government. There is also a record com-
piled by a number of committees before this Congress of illegal and
unconstitutional activities directed at American citizens in the
United States arising from the same covert capabilities of the
United States. The visceral reaction of the American Civil Liberties
Union is to protect the Bill of Rights, and to give the widest
latitude to the first amendment and to an open society.
We realize the tensions between a national security state and the
first amendment. We try to, within the Congress, to accept the
dimensions of the debate and to argue for the widest latitude, and
also have supported legislation which attempts, we believe, to
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strike a balance between national security and civil liberties' con-
cerns.
Senator DENTON. Well, in this era of intercontinental ballistic
missiles, nuclear weaponry of various kinds, the difficulty of ascer-
taining without a free process of open verification invited by the
other governments, how would you see it to be in our national
interest, or even in our realm of survivability possibility, if we did
not conduct covert information to find out about the possession of
weapons, the degree, the number? Do you support arrest nuclear
proliferation? And how can this be done without foreign intelli-
gence?
Mr. HALPERIN. Senator, I want to make it clear that what we
have to say about this bill does not depend on the formal position
of the ACLU that we should not be engaged in peacetime espio-
a nage. If what you want to do is engage in a discussion about how
we learn about Soviet weapons, we are prepared to do that; but
that is not what we understood to be the purpose of this hearing,
or the scope of this hearing.
The fact is that most of the information, if not all of the informa-
tion which we rely on to monitor weapons' deployment of our
potential adversaries, is collected by technical means of intelli-
gence, as you know. The ACLU position clearly distinguishes be-
tween that and what has been referred to as "human espionage." It
supports the technical collection of intelligence by various means.
It supports the analysis of that information and the provision of
intelligence information to the President and to senior officials.
Similarly, in the case of nuclear proliferation. The information
about nuclear proliferation is not a secret. The problem is, what to
do about it. As numerous Senators have stated on the floor of the
Senate, we know which countries are making nuclear weapons.
The problem we have is to decide how to deal with that problem.
So that I do not think one needs to support particular kinds of
espionage if one is concerned about those issues. But I think those
views on that issue do not bear in any way on the position we have
taken on this legislation.
Senator DENTON. Well, none of us, especially myself, is exempt
from questioning regarding the philosophy from which we come
and how that might color or explain positions that we take. The
ACLU and CNSS cannot support the SALT Treaty-I mean, I am
sure you have a view on that. How you can support such treaties
when we do not have verification unless we conduct covert activi-
ties is something that escapes me. And I believe, were you to
extend-this is a personal belief-were you to extend your efforts
on behalf of what I believe to be a true love of liberty and get into
that field, you would change your position.
Mr. HALPERIN. Senator, with all due respect, the SALT Treaty is
something I happen to know a great deal about.
Senator DENTON. No; I do not mean about the SALT Treaty. I
mean about the necessity for covert intelligence overseas against
which you have taken a position in general.
We have a vote pending. We will recess for 15 minutes now and
come back after we register our votes.
[Recess.]
Senator DENTON. The hearing will resume.
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I will defer now to Senator East for any questions he might have.
Senator EAST. Thank you, Mr. Chairman.
I will try to make my remarks very brief, because I know of the
great time constraints under which we are all working. I am some-
what troubled with the ACLU's position on this matter of protec-
tion of internal security. I do not mean to make the philosophy of
the ACLU the center point of our discussion, because I appreciate
that that would be an interesting subject for another forum and
you are not here to discuss that, but as commendable as ACLU's
efforts are I think in many areas, and you frequently have taken a
very unpopular cause on the far left and on the far right and many
things in between-I am just trying to work up to this point.
One thing that is sometimes troubling to the ACLU is not their
devotion to the cause of civil liberties or to our freedoms under the
Constitution or the first amendment, but sometimes an insensitiv- a
ity to the fact that in the real world of politics we have many
things to balance. You have the problem of freedom; you have the
problem of security. It reminds me of Thomas Hobbes, the famous
Englishman.
Now Hobbes was obsessed with security. He thought security was
the only thing that mattered. So he developed the theory for the
modern authoritarian state, which I am deeply resistant to, as I
well know you gentlemen are. Hobbes raised a good point. Security
is important, but if you raise it to the first principle of politics and
exclude everything else, you are going to get some very perverse
results-authoritarianism, and perhaps even ultimately totalitar-
ianism.
Now it occurs to me that if you take the concept of the individ-
ual's freedom, intellectual and in every other way in the broadest
scope of the word under the first amendment and the entire Consti-
tution, and you elevate that to your first principle of politics and
you exclude everything else, you get some perverse results, in the
sense that it seems to preclude a really genuinely effective policy of
national security.
We know that in the real world of international and American
politics that this is a genuine problem, a genuine threat. The
problem of national security and effective intelligence gathering is
just imperative, it seems to me, to maintain the kind of society we
want.
If we are not able to strike some balance here, we may in the
name of preserving the freedom end up losing it because we are
unable to develop the ability to defend ourselves against those who
are less sensitive, the authoritarians and the totalitarians.
Thus, it strikes me that in your position, gentlemen, that al-
though your intentions are most honorable and I am not question-
ing that, I have a little bit of a theoretical problem of whether, if
you take that position and keep pushing it to the furthest extreme,
at some point all of these other things are never considered. For
example, the problem of security.
I admired your courage in defending the Nazis marching in the
Jewish community in Skokie, yet I felt at the time that perhaps
Nazis ought not to be parading in Skokie. The purpose was to
provoke. The purpose was not really to make any legitimate, fun-
damental point of communication under the first amendment.
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Now these are difficult lines to draw, I agree with you. But in
the real world in which we live and move and have our being
politically, we have to make those judgments. Sometimes we err.
Sometimes we balance it too far in the case of security; sometimes
we balance it too far in the case of freedom. But it occurs to me at
this point we have a very legitimate problem in this country of
facing the threat of international terrorism, of protecting our inter-
nal security, of having effective intelligence gathering, and we are
going to have to make some kinds of concession in order to be
effective in that area; and the greater goal will be to defend this
system which does allow us, with all of its shortcomings, in the
long run to have a greater degree of freedom than most countries
clearly enjoy in the world today.
I am just concerned here-and then I shall be silent-whether
? your objections, as commendable as they are, ultimately if you
strip it down and probe it to its deepest level of rationalization,
there really is not anything we could effectively do in this area in
terms of protecting CIA agents or other agents from being exposed
by private citizens or others, destroying their effectiveness, imperil-
ing their lives and thereby imperiling the national security of the
United States?
At some point this Congress, and I think reflecting the will of
the American people, is going to want to find a way to protect
those people. It is a legitimate national concern to national secu-
rity, and it is indispensable in order to preserve the freedoms we
all cherish under the first amendment.
Let me rest there. Do you think I am correct in that assessment?
Mr. HALPERIN. Senator, I think we have no doubt, and we actual-
ly testified last year that we were certain the Congress would pass
a bill last year. I do not think we have any doubt that the Congress
will pass a bill; nor do we have any doubt that it will include a
section (c).
We have tried, therefore, both to state our principal constitution-
al objections to that; but also to try to offer some advice to the
Senate and to the House on the assumption that you are going to
go forward of ways to make the bill narrower, to reduce the chill-
ing effect on first amendment debate.
One of the suggestions we have made is that you include a "bad
purpose." The view that that is required by the Constitution is a
view that Professor Scallia has put forward, that Professor Kur-
land has put forward, and neither of them have ever been accused
of being single mindedly dedicated simply to civil liberties. But I
think both of them are people who have a deserved reputation for
balancing the kinds of considerations which we have talked about.
The Justice Department has said that the bill with a "bad pur-
pose" would accomplish the purposes of the legislation. We have
also urged, and I would urge again, that you narrow the scope of
the bill to cover the people that everybody this morning talked
about should be covered.
If you look at what was said this morning, both before you came
in and after you came in, people talked about people we send
abroad to protect us, employees of the United States, those who
serve the United States abroad. We would urge you to limit the
scope of the section (c) to those individuals.
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What we have said is: If you do those two things, if you limit it
to individuals who are serving the United States abroad, what we
talked about this morning, and if you require the kind of general-
ized bad purpose that has been urged on the House committee, you
will have substantially reduced the constitutional problem. We
would still have our principled objection that we would state, but
we would in those circumstances feel that the Congress had done
as good a job as it could do in balancing the different pressures
that were upon the committee and upon the Congress.
Senator EAST. Let me just, if I might, Mr. Chairman, one follow-
up question and then I will be silent.
Senator DENTON. You are well within your time.
Senator EAST. On this "bad purpose" point that you make a
great deal of here, I find "bad purpose" here. That is, implicit in
this statute is the idea of knowingly and purposely giving informa-
tion that would identify these people for the purpose of interfering
with intelligence gathering on the part of the United States, know-
ing that the United States was attempting to protect that. To me,
there is a "bad purpose." The "bad purpose" is trying to disrupt
the orderly and effective operation of intelligence gathering which
is designed to protect our internal security.
Now those who are trying to frustrate that process, to me that is
a "bad purpose."
Mr. HALPERIN. Yes. I think that is--
Senator BIDEN. You do not disagree with that, do you?
Mr. HALPERIN. I agree that that is a bad purpose. It is just not in
the bill.
Mr. BERMAN. It is not in the bill.
Mr. HALPERIN. And that is what we are urging you to put in the
bill.
Senator EAST. Well, to me, when you say it is not in the bill, it is
niggling. You could say that about any kind of criminal definition.
You mean you want the words "bad purpose" in there?
Mr. HALPERIN. No. We want the purpose of "intent to disrupt"
by the act--
Senator EAST. Well, I would simply contend that it is there; that
the notion-maybe it blends in with Senator Biden's remark. You
do not find "intention" in here, you say. You do not find "bad
purpose." I do. Intent to do certain things with the ultimate end of
weakening the security gathering, the data gathering, intelligence
gathering effectiveness of the U.S. Government.
Maybe I am missing the point, gentlemen, but is that not a bad
purpose?
Mr. HALPERIN. That is a bad purpose. The bill does not require
that you have that intent. A person who deliberately discloses
names that he has gathered in a pattern of effort to uncover names
is guilty of violating section (c) even if his purpose is to improve
the intelligence activities of the United States, or expose corrup-
tion.
What we have urged upon this committee is language which the
Justice Department says will meet the purposes of the bill, which
is to require this "bad purpose" of disrupting or neutralizing the
activities of the intelligence agencies by the act of disclosure.
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Senator EAST. Well, first of all, I think it is a distinction without
a difference. It is a very subtle point. But if I do understand what
you are saying, I think the effect of it would be to make it impossi-
ble to have an effective law by what you are saying, because then
you would always be questioning whether there was a "bad pur-
pose."
What we do not want-what we do not want-is people engaging
in this kind of activity of fingering informants which makes that
impossible for us as a nation to carry on effective intelligence
gathering. To me, that is a very legitimate, proper, appropriate
national goal.
This agonizing over the subtlety of language and semantics here
I know is critical in the criminal law and the constitutional law, do
not misunderstand me, and I am not questioning anyone's good
? intentions, but I have an uneasy feeling that if you slice it that
thin, actually what you would do is you would appear to be giving
us an effective tool, but as a practical matter of application in
enforcement, there is nothing there. It is an empty hand.
Mr. HALPERIN. Senator, we think it can be enforced, and so does
the Justice Department. I would refer you to Mr. Willard's testimo-
ny on behalf of the Justice Department and the Attorney General
in which he says:
While there is a preference for the Senate bill, that it is the judgment of the
Justice Department that both versions-that is, the House bill which has a "bad
purpose," as well as the Senate version-can be effectively used to prosecute to
cover the range of cases that the Congress is concerned about.
So that is the judgment of the people in the Justice Department
who would have the responsibility for prosecuting under this bill. It
is not only our judgment.
Senator EAST. Well, obviously of course, as I understand the
Justice Department's testimony this morning, they are fully con-
tent with paragraph (c). That is, that was their first preference,
was it not, unless I misunderstood what the gentleman was saying?
Mr. BERMAN. They said that they would prefer the Senate ver-
sion of the bill.
Senator EAST. Yes.
Mr. BERMAN. But that they thought that both bills were constitu-
tional; and, while it might create a bit more of a burden on them,
that they could successfully prosecute under the House version of
the bill.
Senator EAST. Yes, but again, to keep the record straight as far
- as their preference, they prefer our version. That is the one I am
defending.
Mr. BERMAN. But they are not taking the position which you
have articulated that it is impossible to prosecute under the House
bill.
Senator EAST. Well--
Mr. BERMAN. Just one other point, Senator, in response to your
question. It seems that unless it is a part of the elements of proof
in the trial whether there is a bad purpose or not, then all of the
avowals of Senators and report language surrounding this bill that
it cannot reach the legitimate communication of news about intelli-
gence matters, foreign policy, but only people with a bad purpose is
eviscerated. It has to be a part of the element of crime to support
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that report language and that congressional intent to effectively
not reach those cases.
Senator EAST. Well, I shall end on this comment. I appreciate
your candor and your very helpful testimony. I feel there is a real
need here, and I want something of substance. I am concerned that
by the time we would hone it in the way you would have us go, I
am not quite sure we would have an effective instrument.
It would be one so difficult of interpretation in application it
would not deal with the genuine felt need to prevent people from
interfering with effective intelligence gathering. And to me, that is
the goal; and we are going to have to make some reasonable 4
adjustments to get there.
It is an overriding question of national security, national defense,
and effective security. I look upon this as a reasonable concession.
Then, too, we have demonstrated this morning that reasonable
minds can differ over that. So I yield to the chairman.
Senator DENTON. Thank you, Senator East.
Senator Biden?
Senator BIDEN. Thank you.
Gentlemen, maybe I am confused, but do you gentlemen oppose
efforts to stop the exposure of agents, if the reason for the exposure
is for the purpose of hurting the United States of America? Do you
oppose that?
Mr. HALPERIN. We would not oppose the bill which contained
that.
Mr. BERMAN. We do not oppose that bill.
Senator BIDEN. That concept, you do not oppose?
Mr. BERMAN. We state on page 1 that we do not condone the
practice of naming names which place our agents' lives in jeopardy.
Senator BIDEN. Do you acknowledge the right of our Government
under our system of laws to protect itself against subversion, espio-
nage, and terrorism?
Mr. BERMAN. Defined as "criminal acts," Senator, yes.
Senator BIDEN. I think we are discussing two bills, essentially, a
House bill which will work according to the Justice Department,
and a Senate bill which they think will work more easily. Both will
work.
Balancing again whether or not the Senate or House bill will
impact upon the competing interests of any government and a free
people, I would like to read to you some language and question
whether or not you would think it would be preferable to either
the Senate language or the House language.
I should say at the outset that it is not language either of you
have given me; it is language that was suggested on April 23, I
believe, by the former head of the Criminal Division, Philip B.
Heymann. It says:
* * * whenever in the course of a pattern of activities undertaken for the purpose
of uncovering the identities of covert agents and exposing such identities (1) in order
to encourage or assist foreign nationals, or foreign powers, or their agents to impair
or to impede the effectivess of covert agents or the activities in which these agents
are engaged; or (2) in order to neutralize covert agents or the activities in which
they are engaged by the fact of such exposure itself discloses to any individual not
authorized to receive classified information, any information that identifies a covert
agent, knowing that the information disclosed so identifies such covert agent, and
that the United States is taking affirmative measures to conceal such covert agent's
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intelligence relationship to the United States, shall be fined not more than $15,000
and not imprisoned more than 3 years.
That is a lot to swallow in one sitting, but do you understand the
language?
Mr. HALPERIN. Yes; we have seen that language. Our under-
standing is that Mr. Heymann sent the letter to Mr. Boland, the
chairman of the House intelligence Committee, on behalf of him-
self and Mr. Scalia and Floyd Abrams, who were the three wit-
nesses on constitutionality who testified before the House commit-
tee, expressing the view that that language, better than even the
House or the Senate bill or anything else they had seen, was likely
to survive constitutional muster.
I think we would join in that judgment. That does not mean that
we believe it is constitutional. We continue to believe no language
? which punishes the republication of publicly available information
is constitutional. But our view is that that language has a better
chance of surviving constitutional muster, and would chill less
legitimate public debate, than an alternative version that we know
of; and it would, I think, raise substantially fewer problems.
Senator BIDEN. The ACLU's purpose, credibility, inclination,
intent, if you will, has been raised here this morning.
Mr. Halperin, I would like to ask you specifically. Have you ever
worked for the Federal Government?
Mr. HALPERIN. Yes; I have.
Senator BIDEN. In what capacities and for whom?
Mr. HALPERIN. I served as a Deputy Assistant Secretary of De-
fense in the Johnson administration; and as a member of the staff
of the National Security Council in the Nixon administration.
Senator BIDEN. So you have dealt with intelligence matters as a
government official in the Nixon administration?
Mr. HALPERIN. Yes; I did.
Senator BIDEN. I would like to pursue one other point. In your
legal judgment-I am not asking for your preference, now, I am
asking for your legal judgment, try to give me as dispassionate a
view as you can-Mr. Phillip Agee who makes it his business to
publish the names of agents whenever he has an opportunity, and
whom I personally would like to see put out of business-would
Mr. Phillip Agee fall under sections (a), (b), (c), or all three, of the
Senate version of the bill? If you were going to prosecute him and
this bill were law, which section would you prosecute him under
based on the activity we know of thus far without reciting all of
what it is?
Mr. HALPERIN. He would fall under section (a) as having had
authorized access to classified information that identifies a covert
agent for those identities he learned while in the Government.
Senator BIDEN. So to prosecute Mr. Agee, we would not even
have to have subsection (c). The debate that is going on here does
not affect Mr. Agee. The three of us Senators disagree much in
philosophy I suspect, but we agree that sections (a) and (b) are fine
as they are, I am not asking your position; we believe they are fine.
Mr. Agee would not even rise to the level of being subject to the
debate because we would be able to prosecute him under the first
section.
Mr. HALPERIN. That is correct.
83-094 0-81-7
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Senator BIDEN. Now let me ask you a hypothetical. What if a
former employee or present employee or agent of the Federal Gov-
ernment, a person who never had access to classified information,
but by whatever means either by paying for it, by having it leaked
or by republishing it were to find himself in the following situa-
tion.
There have been a number of books and articles written in
recent years suggesting that our intelligence agencies have been,
fooled by Soviet disinformation agents-disinformation-and
indeed some journalists and authors contend that our intelligence
agencies have been penetrated by the KGB, and that a so-called
"mole," is ensconced high up in the CIA. One set of allegations
surrounding a number of Soviet defectors existed around the time
of the Kennedy assassination, including conflicting stories about
the Soviet relationship with Lee Harvey Oswald. It is further al-
leged by some journalists that this information obtained from de-
fectors was kept from the Warren Commission, or at least that the
Commission was also fooled by the defectors.
Now assume for the moment that a journalist had this informa-
tion, this information from defectors, early in 1964. After failing to
convince the intelligence agencies or the Warren Commission of its
validity, and knowing that it might compromise a source, and
having warned the agency of his intent to disclose the information
so that they might protect the source, their agent, the journalist
proceeds with a story.
The story says:
A defector named Smith-so I will not get into any existing cases-a defector
named Smith has told the intelligence community that the Soviets financed and
trained Lee Harvey Oswald to assassinate President Kennedy.
The journalist tells that to the agency, saying "I know that; do
something about it." They choose not to. He then tells the Warren
Commission of this, and they choose not to print it, because they
believe it is disinformation. The intelligence community concludes
that it is disinformation.
Now the journalist after doing all that goes out and writes an
article or publishes a book setting that out, blowing the cover of
American CIA agents.
Are they prosecutable under this law?
Mr. HALPERIN. Yes.
Senator BIDEN. I am not sure they are. Your answer is "yes." I
am not sure they are, but that is the kind of thing that I am very
worried about. I am worried about it because I think there is,
having served on the Intelligence Committee since its inception,
such a thing as disinformation. I am concerned that foreign intelli-
gence agencies attempt to manipulate American intelligence activi-
ties.
I am concerned that there is infiltration. I know of no intelli-
gence community in the world that has not been infiltrated. That
concerns me. And I worry that we might very well find people who
lack intent, who want to try to go out to prevent that kind of thing,
expose it, being prosecuted for their efforts to try to be good Ameri-
cans.
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By the way, is a "pattern" one event, or two, or three? Or is a
"pattern" established by the investigation and only one article?
Can there be a pattern if there is only one article written?
Mr. HALPERIN. It was testimony of all the witnesses in support of
this legislation both in the last Congress and this Congress, that
one disclosure was enough if it followed a pattern of effort to
uncover.
Senator BIDEN. A "pattern of effort"? OK. So there is a reporter
with a pattern of effort who attempts to disclose the names of
agents who he or she believes to be double agents, and so discloses
them. As my two colleagues pointed out, America would be better
served if they were disclosed. Obviously they would be reasonable
in disclosing them.
But what happens if they in fact were engaged in disinformation
? themselves and were triple agents? I am serious. This is not a joke.
These gentlemen are intelligent men, they know there are such
things as triple agents. It is not something we make up in books; it
is real.
What is the standard? What happens if they disclose the name of
an agent? Are they prosecutable under this? What is the test?
Mr. HALPERIN. There are-and I may have misunderstood the
Chairman, but I understood him to be suggesting that if the names
were gotten from foreign intelligence sources that they would not
be covered by the bill; and I see nothing in the bill that would
exclude penalties for republishing names that came from foreign
intelligence sources, or from U.S. intelligence sources, or from
public data. But to go through the six hurdles that Mr. Casey listed
in his testimony that the Government has to follow.
To take your scenario, or the real book that was published on the
Warren commission and the allegation that CIA disinformation
agents were sent over to distract us from investigating Oswald's
alleged connections with the KGB, if this person set out to write a
book, or take your scenario that there was an intentional disclo-
sure of information which identified a covert agent, saying that a
particular Soviet defector was now working for the CIA, that defec-
tor is in the definition of "covert agent."
The disclosure was made to an individual not authorized to re-
ceive classified information, and clearly if you publish a book or
write an article you do that.
The person who made the disclosure knew that the information
disclosed did in fact identify a covert agent, and saying that a KGB
defector is working for the CIA, you know that you are identifying
a covert agent.
The person who made the disclosure knew that the United States
was taking affirmative measures to conceal, and again you would
know that and presumably say that in the story.
And the individual made the disclosure in a pattern of activities
intended to identify and expose covert agents, and both in your
scenario and in the real book the individual set out to find out
whether there were these disinformation agents and to learn their
identity.
And the disclosure was made with reason to believe that the
activity would impair or impede intelligence activities. You would
get that "reason to believe" by doing what most journalists would
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do, which is to go to the CIA and say. I am about to publish this
story; should I do it? Do you have any comment? The agency would
say publishing that story would injure the intelligence activities of
the United States. And, having been warned of that, you would
have great difficulty persuading a jury that you did not have that
"reason to believe."
Senator BIDEN. One last question, Mr. Chairman. I can see you
are anxious to conclude. One quick one. That is, I think that there
is a reasonable argument that the language I am suggesting requir-
ing intent might very well have a more chilling effect on the media
than the language that exists in the Senate bill.
As you know, it was argued last year by some, that to prove
intent prosecutors could look for example in a prosecution against
the New York Times at previous editorials criticizing foreign
policy, et cetera. The argument being that if the House language
were adopted, it would have more chilling effect on the freedom of
the press than the other language.
Do you have an opinion on that specific question?
Mr. HALPERIN. I think that might be true of the current House
language, but I think it would not be true of the specific "bad
purpose" in the language which you read to me. And I think that
is why those three gentlemen think that that raises fewer constitu-
tional problems.
Senator BIDEN. Thank you, very much.
Thank you, Mr. Chairman.
Senator DENTON. Thank you, Senator Biden.
We made previous inquiry regarding the ACLU and the Center
for National Security Studies respecting a position on not support-
ing covert action or espionage activities abroad in peacetime absent
a declaration of war by Congress. That was a position in 1978 and
affirmed here today with some qualifications.
A previous statement in 1975, December 5, by you, Mr. Halperin,
I would like to know, since it was before the Senate select commit-
tee, whether or not you still hold to the view that the United
States should no longer maintain a career service for the purpose
of conducting covert operations and covert intelligence collection
by human means? I left out-there was no reference to "abroad" or
anything in that statement, so I wondered if that is still your
current view?
Mr. HALPERIN. The implication of that statement was "abroad,"
but it is not still my current view.
Senator DENTON. Thank you, sir. Frankly, I am very glad to hear
that.
We will be holding the record open for written questions to these
gentlemen. We thank you very much for your forthright testimony
this morning, gentlemen.
Senator BIDEN. Mr. Chairman, before you adjourn, I have no
questions for the witnesses-these are our last witnesses?
Senator DENTON. No; one more.
Senator BIDEN. Oh, OK. Good. Thank you.
Senator DENTON. We will call on Mr. John M. Maury, president
of the Association of Former Intelligence Officers.
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STATEMENT OF JOHN M. MAURY, PRESIDENT, THE ASSOCI-
ATION OF FORMER INTELLIGENCE OFFICERS, ACCOMPANIED
BY JOHN S. WARNER, LEGAL ADVISER, AFIO
Mr. MAURY. Mr. Chairman, with your permission I would like to
have Mr. John Warner, the legal adviser of the association, and
former General Counsel of the Central Intelligence Agency, with
me here to field possible questions.
Senator DENTON. Welcome to you, Mr. Maury, and also to your
associate, Mr. Warner. I suppose it would be better were it to
reveal that there is a suspicion that Mr. Maury and I are related
through marriage, before we begin this, and I only learned that
today.
Would you care to make an opening statement, sir?
Mr. MAURY. Sir, I will submit for the record the statement which
A I believe your staff has. I will make a few very brief, general
remarks.
First of all, I am the president of some 3,000 former intelligence
officers from the armed services, the FBI, the State Department,
and the CIA, and appear in that capacity. I am, like my pred-
ecessors I believe, a completely impartial witness. As Admiral
Turner I am sure will testify, I have been just as critical of the CIA
on some points as Mr. Halperin has, I think.
But I do feel very strongly the importance in this day and age of
an effective intelligence service as the first line of defense against
subversion and surprise, and the best hope for peace in our time.
As a wise colleague on the NSC staff once remarked, perhaps the
greatest danger to peace in our time would be an ill-informed
American President. I think in this day and age, that is more true
than ever.
I think, in that connection, human sources are more important
than ever. They can tell you many things of vital interest that no
satellites or electronic systems can contribute. I speak from the
perspective of these human sources because I have been one, and I
have been involved with them off and on for the past 40 years, and
I was 8 years Chief of Soviet Operations for the CIA.
These people are rather strange, Mr. Chairman. They live lonely
lives. They operate a long way from home. They are under severe
pressures, and inducements, and temptations in operating in a
hostile environment, and there is no way we can compensate them
to an extent commensurate with their true worth. We cannot give
them public acclaim, of course, because that would give them away.
And we cannot reward them with material things, because an
affluent lifestyle would immediately raise suspicions.
So all that they can get in the way of compensation for their
work is a feeling that their work is valued and appreciated. It is
awfully hard for them to feel that it is valued and appreciated by
the Government unless the Government can provide them some
protection for the effectiveness of their job, and for their lives and
the lives of their families.
And as long as it is possible for an organization right here in the
Nation's Capital to freely publish the identities of these people
without any legislation that can effectively restrain that publica-
tion, it is awfully hard to convince these people that we are doing
our part to support and protect them.
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98
I speak with some personal involvement in the Welch case,
which was mentioned by previous witnesses. It has been said of my
friend, Dick Welch, who was my successor as station chief in
Athens, that the KGB of course knew who he was, and that the
fact that his name was published in the United States by "Counter-
spy" and then was picked up by the Greek press and sensationa-
lized, in no way contributed to his death.
Well, I happened to be visiting Dick and Kika Welch in Athens
during Thanksgiving just before his death, and his name had just
appeared on the front pages of several Athens newspapers. We
talked about this, and he said:
Of course most people around here could find out who I am; I operate in a NATO
government where I am dealing with a lot of local officials, and so on, but the
important thing is that I am not a celebrity. Once I become a celebrity, then I am a
prime target for action by the terrorists that are operating in this part of the world.
Recall the assassinations of the athletes at the Olympic Games in
Munich. They were not intelligence agents, but they were promi-
nent personalities. So what I am saying, sir, is that the argument
that these identities can sometimes be devined by skillful research
misses the point. The point is that the real damage comes from the
widespread publication of their identities, which has two effects:
One, it does make them attractive targets for assassination or
violence;
Second, it creates an impression throughout the world that the
United States Government is unable or unwilling to get serious
about its intelligence work, and presumably even its national secu-
rity interests, if it cannot or will not protect the people I speak of
by adequate legislation.
As a former KGB officer once said to me:
Our primary objective has always been to put out the eyes of our adversary by
discrediting and demoralizing and disrupting his intelligence service.
Another KGB officer is quoted as saying:
We never dreamed that we could do as much damage to the U.S. security as you
people have done to it yourselves by your public revelations and irresponsible
attacks on your intelligence agencies.
Now putting those two things together, Mr. Chairman,- I do not
think that anything could contribute more to these Soviet objec-
tives than for us to allow the continued uninhibited publication of
the identities of our most sensitive intelligence personnel engaged
in dangerous and difficult assignments.
Thank you very much for your attention, sir.
Senator DENTON. Thank you very much, Mr. Maury.
I will have only two questions, since your opening statement
answered the remainder of them. Does the association and its
membership feel that S. 391 will be effective in reducing the dan-
gers engendered by the unauthorized disclosures of identities of
intelligence officers and their family members?
Mr. MAURY. Mr. Chairman, I think it will contribute a great
deal. I do not think there is ever a perfect solution to this sort of
problem in a free society, but I think S. 391 will make a great
contribution not only to the practical results, but also to the
morale of the troops in the field.
Senator DENTON. Do you have any suggestions as to how this bill
could be rendered more effective, not necessarily in amending now,
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but perhaps later in addressing the problem of unauthorized disclo-
sures?
Mr. MAURY. Mr. Chairman, I think time is of the essence, and
therefore I would urge prompt action on this bill. There may be
refinements that could come later, but it is far better I think that
we move quickly on this bill, rather than delay in the interest of
polishing it further.
Senator DENTON. Thank you, sir.
Senator East?
Senator EAST. Mr. Chairman, I will keep my remarks brief. I
found the statement very valuable, and it will be of course, I know,
a part of the record. I do agree, obviously-or perhaps not so
obviously-with the general concern that Mr. Maury raises, and I
appreciate hearing what the professionals think about the problem.
They do think this act would fill a gap here that needs to be
filled, and that simply enhances my support for the measure. I
appreciate his coming and making the effort to be a part of these
hearings. Since we would be in basic agreement, I shall not proceed
to waste any further time, but my lack of comment should not be
interpreted as a lack of enthusiasm for his statement and his
personal presence here.
Thank you, Mr. Chairman.
Senator DENTON. Thank you, Senator East.
Senator Biden?
Senator BIDEN. Thank you also for your statement, sir. It may
come as a surprise to you that I do not disagree with your state-
ment, either. The fact of the matter is that I think you are abso-
lutely right, particularly as it relates to morale, but more impor-
tantly as it relates to the single greatest instrument for peace we
have at our disposal in this Government-a functioning, well-or-
dered, and good intelligence community. I have been exceedingly
supportive of budget requests and matters that would relate to
strengthening that Agency. As a matter of fact, I have been the
prime mover most of the time in those issues in the Intelligence
Committee.
So we have no disagreement at all in terms of both the philos-
ophy of the need for covert activities. I, like you, reject the argu-
ment that merely because a KGB agent does not sanction a CIA
agent who has been exposed, that therefore there is no harm to the
agent.
We are not only worried about the KGB agent blowing agents
away. That is a worry, but not related to this. There is no doubt
that they know who the station chief in every station in the world
is, just like I know we know theirs. But that is not the point.
You are absolutely right, and I want to reiterate your point on
the record, that both the demoralizing effect and the physical
danger created as a consequence of exposing agents in foreign
lands, even when the KGB already knows about them, is very, very
damaging both to the physical safety and to the morale of the
agency. It does not make us look good, either, as a nation. So I
concur with you completely.
I have two questions. Do you believe that the House bill, which
differs only in the argument that you have heard take place here
today, the question of "reason to believe" or "intent," do you
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believe that the House bill would prevent us from accomplishing
the goals of further protecting those CIA agents? Is the House bill
a positive move? I know you prefer the Senate bill, but is the
House bill positive? Does it help?
Mr. MAURY. Sir, I would defer to Mr. Warner, our legal adviser,
on that if I may?
Senator BIDEN. Surely.
Mr. WARNER. Mr. Biden, we have studied both of these bills very
carefully and, somewhat like the Department of Justice, we would
urge passage of either one. We feel that they both clearly stand
constitutional muster. I believe that the House bill would make
prosecution somewhat more difficult, having engaged in many
cases in discussion of "shall we prosecute this case, or that case?" I
believe that the House bill would be slightly tougher to prosecute.
Senator BIDEN. I appreciate your answer.
Mr. WARNER. But either bill.
Senator BIDEN. I just want to make it clear that, from my point
of view, although I do not share the same philosophic view of my
colleagues on a number of issues, on this issue, the issue for me,
Joe Biden, one Senator, the ranking Member of this Full Commit-
tee and this subcommittee, is simply the latter point-intent.
There is no disagreement. There is no disagreement on the need
for action in this area. Your answer is crystal clear.
The second question I want to ask you, I address to our principal
witness. Can you explain to me and my colleagues, or can you
think of from your past experience, as you have cited past experi-
ence to us by making reference to KGB agents you have known,
examples where the disclosure of the name of an agent who was a
double agent would be something that would not be the desire of
the Agency?
Mr. MAURY. Yes, sir.
Senator BIDEN. Sometimes it makes sense for us to have double
agents who are working against our interest continue to be double
agents as long as we know it? Right?
Mr. MAURY. Very valuable.
Senator BIDEN. Very valuable. Now the second point on that
second question that I would like to make, that is, first effort, with
the cooperation of your former agency, to the best of my knowledge
I am the first person to ever have access to all the Agency damage
assessment reports for the past 10 years. For my colleagues who
may not know the term of art, when something goes wrong you all
write a damage assessment: How much did it hurt us?
We went back to try to figure out why were not you fellows and
the Justice Department prosecuting these guys, we found out that
one of the reasons why you did not prosecute was not because you
were un-American, but because in order to prosecute under our
system it required you to disclose more than you would gain by the
prosecution.
So we worked together and we came up with the Gray-Mail bill
which, according to Justice, according to the prosecutions that have
taken place since then, and according to the Agency, has had a
significant impact on allowing you a mechanism to go get those
folks and punish them without having to reveal more than you
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wanted to. There are still some cases you cannot go forward with,
because to go after it you would reveal too much.
Now having said that, what are the other valuable means beyond
us passing either this House bill or the Senate bill that you believe
as a qualified and experienced agent are needed to protect the
identities of CIA agents?
Mr. MAURY. One suggestion, sir, would be to the executive
branch. That would be the adoption of a new policy under an
Executive order specifying who can or should be available for
supporting intelligence operations, for example, by providing cover
or other facilities for intelligence officers throughout the executive
establishment. That could be very useful in certain circumstances.
I think we have unilaterally disarmed, in a number of cases, by
deliberately putting--
Senator BIDEN. Making it clear who we have as cover by ac-
knowledging others.
Mr. MAURY. We have identified so many people that we say that
we are not using-and I do not think anybody abroad ever believes
us; but still we have done it to ourselves at home. So we have shot
ourselves in the foot in that respect. That would be one comment.
Maybe Mr. Warner could add to that.
Senator BIDEN. Is it not the case that unless we do take that kind
of action, that even if newspaper people do not publish this stuff,
and the Agees of the world do not publish these identities, that
terrorist organizations are getting sophisticated enough to figure it
out themselves-are they not? They are not the KGB, but they are
getting more sophisticated, are they not?
Mr. MAURY. No doubt; no doubt about it.
Senator BIDEN. So even with this law, whichever one we pass, we
have to do more, do we not?
Mr. MAURY. I think so. And I might add, sir, that I think there
should be some restrictions and revisions in the Freedom of Infor-
mation Act, and the Foreign Intelligence Surveillance Act.
Senator BIDEN. I am anxious to hear what you have to say, Mr.
Warner, but with the permission of the Chairman, I would ask
permission that we leave the record open to give you time to add
to, in more detail if you would like, some of the other things
beyond this kind of legislation that you think is useful, but it is up
to the Chairman in terms of time whether he wants to hear it now,
or have it in writing.
Mr. WARNER. I can do it very briefly, Mr. Chairman.
Senator DENTON. Go ahead, Mr. Warner.
Mr. WARNER. I think one of the measures in S. 391 itself is
highly desirable. That is, requiring the President to issue an Execu-
tive order dealing with the procedures under which cover will be
provided. Because while, from time to time, various departments
are cooperative, at other times the policymaker in charge is not so
cooperative, nor are the procedures standardized. And it is a very
complex business, putting a person under cover and keeping him
under cover. It is very complex. I think a central directive from the
President would be of material assistance.
Senator BIDEN. I personally thank you for your concise, dispas-
sionate, and honest responses to my questions. Thank you.
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Senator DENTON. I would like to confirm that the only difference
that appears to exist between the minority members and the ma-
jority members on this committee relates to the efficacy or lack
thereof of the statement regarding "intent" between the House and
Senate version.
I can confirm that Senator Biden, in my experience and before
my experience here, has been a veritable bird dog in promoting
intelligence, not only in the sense in which we are discussing here,
but he made quite a point with the Drug Enforcement Administra-
tion hearing the other day of insisting that the director give ade-
quate attention to the intelligence gathering facility of that organi-
zation.
So I have no qualms whatever about acknowledging that, Sena-
tor Biden.
Senator BIDEN. Thank you, Mr. Chairman. I may have to use
that some day. [Laughter.]
Senator DENTON. Thank you, Senator East, for not only your
political science background here, but your legal background. You
are one of the versatile men here, and one of the finest men here,
in my opinion.
I want to thank the witnesses, Mr. Maury and Mr. Warner. We
will hold the record open until next Wednesday, 13 May, for the
submission of written questions by any Senators here or absent
who wish to do so. This hearing stands in recess, subject to the call
of the Chair.
[Whereupon, at 1:33 p.m., the hearing was recessed, subject to
the call of the Chair.]
[Prepared statement of John M. Maury follows:]
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STATEMENT OF JOHN M. MAURY
My background includes law practice in Charlottesville, Virginia; service
in World War II as a Marine officer assigned to Naval Intelligence and command-
ing the U.S. Military Mission to North Russia in Murmansk; 27 years in CIA,
including assignments in Berlin, on the NSC staff, on a Presidential Task Force
to review U.S. foreign policy, on a disarmament delegation in Geneva, eight
years as chief of Soviet operations, six years as Chief of Station in Athens, and
five years in charge of CIA liaison with the Congress. After retirement from
CIA, I served two years, 1974--1976, as Assistant Secretary of Defense.
My name is John M. Maury. I am here today in my capacity as President
of the Association of Former Intelligence Officers, made up of some 3,000 vet-
erans of our several military intelligence services, CIA, the FBI, the O55 and
the intelligence components of the State, Treasury and other Federal Depart-
ments. I have with me John S. Warner, Legal Adivsor of AFIO and former Gen-
eral Counsel of CIA.
Mr. Chariman, I appreciate the opportunity to appear before you on a
matter with which I have been long involved and about which I am deeply con-
cerned. It has to do with S. 391 concerning the protection of the identities of
our undercover intelligence personnel. Having been associated with the intel-
ligence business -- either military or civilian -- over the past 40 years, I believe
that the threats to our security have never been greater. Our military strength,
and with it our national credibility, has seriously deteriorated in comparison
with that of our adversaries over recent years. Therefore, we must rely all
the more on our eyes and ears and wits -- our intelligence services -- to stay
alive and secure. Without good intelligence we are a blind man stumbling through
an uncharted minefield. As a friend of mine on the NSC staff once said, "Per-
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In these circumstances, it seems to me that the need for protecting our
covert personnel -- our human sources -- is of special urgency. But, I am afraid
this need is often poorly understood. In some quarters, there is an apparent
feeling that old-fashioned espionage is incompatible with our free society. The
answer to that, I think, is that so long as our adversaries persist in policies threat-
ening our vital interest, and rely on an all-pervasive secrecy in carrying out
It is also contended that modern technology, with its satellite photography
and electronic devices, has made human sources obsolete. These systems do
indeed tell us much of enemy capabilities, but little of intentions. Nor do they
tell us of the plots and plans of terrorist groups in the cellars of Munich or Milan,
or in the coffee houses of the Middle East or the guerilla hideouts of Latin Am-
erica. Moreover, we can ill afford to rely too heavily on any single system of
intelligence collection, either human or technical. They are all highly perish-
able; they are all subject to the counter-measures of the enemy; and they are
all potential targets of deception, for example through the KGB's massive "disin-
formation" program.
It has been contended that certain provisions of S. 391 are unconstitutional.
Our legal experts disagree, as do many others, including Senators and Congress-
men and Executive Branch lawyers who have carefully studied this issue. There
is no relevant case law to support the contention of unconstitutionality. The
Supreme Court has repeatedly rejected the argument that the First Amendment
is absolute. Among those who urge this absolutist view are those who asserted
in court that Marchetti and Snepp could not be held to their secrecy agreements
-- that the higher law was the First Amendment. The Supreme Court clearly
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and firmly stated that the U.S. Government can take steps to protect its intel-
ligence secrets, specifically stating that the first amendment privilege did not
prevail in all circumstances. Those who lost their First Amendment argument
at the bar of the Supreme Court are now trying to win that argument in these
Committee rooms.
It is ironic that we have laws providing severe and clear-cut criminal pen-
alties for the unauthorized disclosure of such information as Department of
Agriculture estimates of future crops, identities of persons on Federal relief,
income tax information, selective service records, recipients of Land Bank loans,
etc., but no effective laws to protect our most sensitive intelligence sources,
methods or identities.
If I may inject a personal note, in November 1975 my wife and I were in
Athens visiting my close friend and successor as Chief of the CIA Greek Station,
Richard Welch. Just before that Welch had been identified as a "CIA agent"
in the Washington-based magazine Counter-Spy published by a leftist group
calling itself "The Fifth Estate". This infromation immediately, and quite pre-
dictably, received sensational replay in the Athens press. A few weeks later
Welch was gunned down on the steps of his home as he and his wife were return-
ing from a Christmas party. As the Washington Post commented at the time,
Welch's death "was the entirely predictable result of the disclosure tactics cho-
sen by certain American critics of the Agency." It seems to me that when our
laws give better protection to statistics about our soy bean crops than to the
lives of people like Dick Welch, it's time to re-examine our priorities.
Mr. Chariman, the Nation asks much of its covert personnel. We often
call on them to undertake assignments which may put not only their own lives
or safety in grave danger, but also that of their families. We can offer little
in return. Public acclaim is of course out of the question, as is material reward
commensurate with their worth. But through legislation such as S. 391, we can
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offer some protection from calculated exposure by those who, for whatever
motives, seek to destroy the effectiveness or jeopardize the safety of our under-
cover personnel. How can we ask those whose services the Nation so badly needs
to put their trust in our ability and determination to protect them, when we
tolerate, right here in the nation's capital, publication of the identities of our
people in the most sensitive undercover positions?
It has been argued that the legislation under consideration be rejected
because it might have a "chilling effect" on public disclosure and discussion
of intelligence matters. As drafted, this bill in no way prevents discussion or
indeed criticism of intelligence --it will however deter the indiscriminate naming
of identities. We urge that this legislation be passed and indeed hope that it
will have a chilling effect on revelation of sensitive identities. For as General
Washington wrote to Colonel Elias Dayton just 204 years ago:
The necessity of procuring good Intelligence is apparent & need
not be further urged -- All that remains for me to add is, that you
keep the whole matter as secret as possible. For upon Secrecy,
Success depends in most Enterprizes of the kind, and for want of
it, they are generally defeated however well planned ...."