LETTER TO HONORABLE EDWARD P. BOLAND FROM WILLIAM J. CASEY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83M00210R000300060012-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 5
• Document Creation Date: December 20, 2016
• Document Release Date: February 28, 2007
• Sequence Number: 12
• Publication Date: April 29, 1981
• Content Type: LETTER

Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060012-5
0
tF C
O c
o, r
O r
J -~
t
0
Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060012-5
 Approved For Release 2007/03/0 1me tA-RDP83M0021OR000300060012-5
Central Intelligence Agency
?
29 April 1981
Honorable Edward P. Boland, Chairman
Permanent Select Committee on Intelligence
House of Representatives
Washington, D.C. 20515
During the course of the recent hearings on the proposed
"Intelligence Identities Protection Act" before the Subcommit-
tee on Legislation, the following requests were made of me:
-- Representative Ashbrook asked, as a drafting
service, that we provide him with language for a "false
identification" provision that would meet constitutional
muster;
Representative Fowler asked for the Agency's
official views on the Senate version of subsection 501(c)
? and the so-called "Kennedy Compromise" suggested in the
closing days of the 96th Congress.
As to Representative Ashbrooks's request, one such version
is presently found in subsection 800(d) of H.R. 133, the "Intel-
ligence Officer Identity Protection Act of 1981," introduced by
Representative Charles E. Bennett (D., FL). Mr. Bennett's
formulation contains a harm standard, that is, prejudice to the
safety or well-being of any officer, employee, or citizen of the
U.S. or adverse impact on the foreign affairs functions of the
United States. The Bennett formulation provides a readily avail-
able solution. The formulation that appears in H.R. 133 is as
follows:
?
"Whoever falsely asserts, publishes, or
otherwise claims that any individual is
an officer or employee of a department
or agency of the United States engaged
in foreign intelligence or counterintel-
ligence activities, where such assertion,
publication, or claim prejudices the
safety or well-being of any officer, em-
ployee, or citizen of the United States
or adversely affects the foreign affairs
functions of the United States, shall be
imprisoned for not more than five years
or fined not more than $50,000, or both."
Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060012-5
 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060012-5
?
?
?
In the course of the testimony by Richard K. Willard, the
Attorney General's Counsel for Intelligence Policy stated that,
in his opinion, a "false identification" provision containing
a "life endangerment" element would be both enforceable and
constitutional. I would stress, however, that such a physical
harm standard would not be suitable for the sections of the
Bill which cover correct identifications of intelligence per-
sonnel. The physical safety of our people is, of course, a
matter of grave concern, but the Identities legislation is
designed to deal primarily with the damage to our intelligence
capabilities which is caused by unauthorized disclosures of
identities, whether or not a particular officer or source is
physically jeopardized in each individual case.
As to the first question posed by Mr. Fowler, i.e., the
Agency's views on the Senate's version of subsection 501(c),
we start from the basic premise that H.R. 4 and S. 391 are
essentially similar. Both are carefully and narrowly crafted
Bills which could effectively remedy the problems posed by the
unauthorized disclosures of intelligence identities, and with-
stand challenge on constitutional grounds. Thus, the CIA would
support enactment of either H.R. 4 or S. 391. As you know, the
Bills do differ with respect to the standard of proof that
would apply to individuals who have not had authorized access
to classified information, and which would criminalize their
disclosures of identities even if these disclosures cannot be
shown to have come from classified sources. This has been the
most controversial part of Identities legislation, and it is
also the key provision from the standpoint of the legislation's
potential effectiveness in deterring unauthorized disclosures.
We have concluded that the objective standard of proof con-
tained in S. 391 (i.e., "reason to believe that such activities
would impair or impede...") is preferable to the subjective
standard set forth in H.R. 4 (i.e., "with the intent to impair
or impede..."). This preference is based upon a number of fac-
tors, including prospects for successful prosecutions under
the differing formulations. We have discussed this matter at
great length with the Department of Justice, and we believe
that our preference for S. 391 is in accord with the Depart-
ment's views.
Mr. Fowler's second question goes to the issue of the
so-called "Kennedy Compromise," printed in the 30 September
1980 Congressional Record and set forth herein below:
"Whoever, 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 impair or impede the effectiveness of
covert agents or the activities in which
Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060012-5
 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060012-5
?
?
?
they are engaged by the fact of such un-
covering and exposure, or (2) with reckless
disregard for the safety of covert agents
discloses any information that identifies
an individual not authorized to receive
classified information, knowing that the
information disclosed so identifies such
individual and that the United States is
taking affirmative measures to conceal
such individual's classified intelligence
relationship to the United States, shall
be fined not more than $15,000 or im-
prisoned not more than three years, or
both."
This formulation appears to raise the same kinds of problems
of proof of intent which the Department of Justice believes
are present in the current formulation of the subsection 501(c)
offense in H.R. 4, since the Government would have to show that
the disclosure was made "in order to" impair or impede the
effectiveness of covert agents or their activities. A defendant
could assert that his activities and his disclosures were done
"in order to" accomplish some other purpose. Inclusion of the
alternative "reckless disregard" standard in any 501(c) type
provision would be of doubtful value. It is difficult to under-
stand what is meant by "reckless disregard" in the context of
the Identities Bill, since Congress, by enacting Identities
legislation is in effect making a finding that unauthorized
disclosures of identities do in fact threaten the personal
safety of intelligence personnel. A reckless disregard stan-
dard would apparently mean that the Government would have to
make an additional showing of physical endangerment in each
particular case. This, from a deterrent perspective, would
appear to be inadvisable.
Additionally, the Committee may wish to consider one
technical amendment to H.R. 4, not mentioned in the course of
the recent Identities hearings, but nonetheless dictated by
enactment in the 96th Congress of S. 1790, the "Privacy Pro-
tection Act of 1980," legislation signed into law by President
Carter on 14 October 1980 and designed to modify the Supreme
Court's decision in Zurcher v. Stanford Daily. The enactment
of this legislation has a bearing on our efforts to secure
passage of Identities legislation. The Identities legislation
should include a provision amending subsections 101(a)(1) and
101(b)(1) of the Privacy Protection Act so as to include the
proposed new title of the National Security Act of 1947
among the "receipt, possession, or communication" of national
security information offenses with regard to which searches
and seizures may be conducted under the exceptions provided
in those subsections.
Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060012-5
 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060012-5
?
Should you have any questions concerning the views
expressed in this letter, please do not hesitate to contact
my Legislative Counsel directly. We look forward to working
with the Committee to ensure prompt enactment of Identities
legislation.
Sincerely,
SIGNED
William J. Casey
?
?
Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060012-5