INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP83M00914R001900160047-8
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• Document Creation Date: December 20, 2016
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INTELIrIGh'1VCE.IDENTITlES . The term 'United States', when used.
in a geographic sense, means all azeas under
the territorial sovereignty of the United
States and the Trust Territory of the Pacif-
ic Islands.
"(10) The term `pattern of
quires a series of acts with a
pose or objective.",
"(b) The table of contents
ping of such Act is amended
the end thereof the following:
both. fl nnrnvari"Fnr F2alaaca?~~79'~i~'}'~'in$'~,g~?'~j?p'!~g1~R f}(l1 gf}(116Q047-8
agent, .knowing that the information dis- "SEC. 608. For the purposes of this title:
closed so identifies such individual and .that "(1) The term 'classified informatiOII'
the United States is' taking affirmative means information or. material designated
measures to conceal such individual's classi- and clearly marked or clearly represented,
fled intelligence relationship to the United pursuant to the provisions of a statute or
States, shall be fined not more than $15,000 Executive order (or a regulation or order
or imprisoned not more than three years, or issued pursuant to a statute or Executive
OFFICERS, AGENTS, nVFORMANT3, A.YD SODRCE9
activities' re-
Common pur-
at the begin- .
by adding at
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CONGRESSIONAL .RECORD-=SENATE -~ ~ "February 2~, 1982 ~.
"TITI.? VI-PRO?ECTION OP CERTAIN ,
NATIONAL'~.S~CURITY INFORMATION
Sec. 601, protection of identities oP certain United
States undercover intetligence officers,
agents, Informants, and sources.
Sec. 602. Defenses and exceptions.
Sec_ 60;t. Procedures for establishing cover for intel-
ligence officers and employees
Sec. 60A. Extraterritorial jurlstliction.
Sec. 605. Providing Information t0 Congress.
Sec. 606. Definitions.".
Mr. GOLDWATER. Mr. President, I
suggest the absence of a quorum.
The PRESIDING `OFFICER. The
clerk will call the ro1L
The bill clerk proceeded to call the
roll.
Mr. DENTON. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
WARNER): Without objection, it is so
ordered.
Mr. DENTON: Mr. President, I rise
in support of S. 391. On February 3,
1981, our distinguished. colleague Sen-
ator Joxx H. CxnFES of Rhode Island
introduced the Intelligence Identities
Protection Act of 1981. This bill,
tivhich currently has 46 cosponsors.
was' reported from the Committee on
the Judiciary on October 6, 1981.
S. 391 is a bill to amend the National
Security Act of 1947, to prohibit the
unauthorized .disclosure of informa-
tion identifying certain U.S. intelli-
gence officers, agents, informants, and
sources, and to direct the President to
establish procedures to protect the se-
crecy of these intelligence relation-
ships.
Events transpiring in the world have .
been increasingly demonstrative of the
need for maintaining a strong and' ef-
fective intelligence apparatus. It fol-.
lows, therefore, that unauthorized dis-
closures of information identifying in-
dividuals engaged in, or assisting in,
our country's foreign intelligence ac-
tivities, undermine the intelligence
community's human source collection
capabilities as well as endanger the
lives of our intelligence officer in the
field.
The disclosure of, the identity of a
covert agent is an immoral, nationally,.
' and personally harmful act that
cannot be tolerated. Prohibition of
this activity as defined by the bill
would in no way inhibit an individual
from speaking out against Govern-
ment programs that are wasteful. It
would not impede the whistleblower
who seeks to enhance his Govern-
ment's ability to perform more efRf-
ciently by bringing to the attention of
those in responsible positions deficien-
cies, such as fraud or waste, in the
agency in which the whistleblower
serves. The reprehensible activities
which this bill is designed to crimina-
lize have repeatedly exposed honor-
able public servants to personal peril
and vastly reduced their effectiveness
cal to our American democratic system
that it seems evident that what we are
about to do today should not be neces-
sary. This bill is indeed overdue for
passage. , .
While in a free society we must wel-
come public debate .concerning the
role of the intelligence community as
well as that of other components of
our Government, the. irresponsible and
indiscriminate disclosure of names and
cover identities of covert agents serves
no salutory purpose whatsoever.. As
elected public officials, we have the
duty, consistent with our. oaths of
office, to uphold the Constitution and
to support the men and women of the
U.S. intelligence service who perform
important duties on behalf of their
country, often. at great personal risk
and sacrifice.
Extensive hearings before the House
and _Senate Intelligence Committees
and. the Subcommittee on .Security
and Terrorism have documented the
pernicious effects which have resulted
from these disclosures or identities. An
underlying, basic issue is our ability to
continue to recruit and retain human
sources of intelligence whose informa-
tion is crucial to our Nation's survival
in an increasingly dangerous world.
It seems mind-boggling to me that
no existing law clearly and specifically
makes the uilauthorIzed disclosure of
clandestine intelligence agents' identi-
ties acriminal offense. Therefore; as
matters now stand. the impunity with
which unauthorized disclosures of ~in-
telligence identities can be made im-
plies agovernmental position of neu-
trality in the matter. It suggests that
the U.S. intelligence officers are "fair
game" for those members of their own
society who take issue with the exist-
ence of a CIA or find other perverse
motives for making .these unauthor-
ized disclosures.
Through the lengthy hearings that
have occurred over the past several
sessions of the Congress, we have
heard a substantial amount of testimo-
ny regarding the possible constitution-
al problems engendered by provisions
of this bi1L As we all appreciate, in
this. area of identities protection, we
have steered a course carefully
charted between two enormous inter-
ests: On the one side, we have the pro-
tection'of a constitutional right of free
speech and, on the other side, the vital
need to protect the effectiveness of
U.S. intelligence gathering around the
world. During all of the hearings and
debates, great care has been taken to
construct a provision that would reach
the activity to be proscribed, that is,
"naming names," in such a way as to
do no violence to the first amendment
to the Constitution. I believe we, and
those who labored previously on this
holder of the passport is engaged in
activities abroad that are causing serf-
ous damage to the national security of
foreign policy of the United States.
This decision, Haig, Secretary of
'State against Agee, has a major rela-
tionship to this bill in that the Court's
review of this matter established the
serious nature.- of :the acti~zty of
naming names to, identify .and expose
covert agents. Furthermore, the
Court's decision suggests that the .
issues involved here are, from a consti-
tutional standpoint, .relatively clear
cut. This decision established that S.
39i will withstand a first amendment
challenge in the courts. Even Justice
Brennan stated in his dissent that: -
It may be that respondent's first amend-
ment right to speak is outweighted by the
Government's interest in national security.
Mr. President, I vieav this as a bi-
partisan issue. I believe immediate
action must be taken to curtail these ,
activities which have been so deter-
mental to our intelligence-gathering
capabilities and, ultimately, to our na-
tional security. If any legitimate criti-
cism is to be leveled at this bill it
would, in my view, relate to insuffi-
cient criminal sanctions for what i
consider to be ~ a most egregious of=
fense that borders on treason:
Frankly, I am grateful for the spirit
of cooperation that h_ as enabled this
important bill to be brought to the
floor but I am concerned that it has
taken so long to do so. I look forward
to the prompt consideration of this
measure on the floor today and its
early enactment in a form that most
adequately addresses this serious gap
in the Federal Criminal Code.
Finally, I want to commend by col-
league from Rhode Island, Senator
Cxa?? E>;, far his initiative and unceas?
ing efforts on this vital measure. I also
want to thank staff members Rob
Simmons, Will Lucius, and Sam Fran-
cis for their valuable contributions on
S. 391. These gentlemen, along with
many others, have put in many long .
hours on this legislation and I feel
they deserve our strong. commenda-
tion.
There has been a strong bipartisan
tone in the discussions on this matter
in committee. In the spirit of that bi-
partisanship Ihave worked with the.
minority floor mana;;er of this bill and
have come to respect him greatly.
I am now pleased to yield to the Sen-
atarfrom Delaware.
The PRESIDING OFFICER. The
Senator from Delaware.
Mr. BIDEN. I thank the Senator..
' I, too, would like to begin by compli-
menting the Senator from Rhode
Island, Senator CHAFES, who serves
in pursuing their endeavors with sig- On June 29, 1981, the Supreme neat interest ` ill doing-- something
nificant detriment to national seta. Court of the United States in a 7-to-2 about protecting; the safety of agents
rift'. The insensitivity and moral de- decision sustained the authority of the of the U.S. Government. These agents,
generacy on the part of those who President, acting through the Secre- acting on behalf of our Government,
seek to undermine the effectiveness of tart' of State, to revoke. a passport of a and in the interests. of the people of
our itlteiligence capability are so inimi- U.S. citizen on the grounds that. the the United States of America, are sub-
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'Februtzry~ 25; 1982 - ' ` " CONGRESSIONAL RECORD - SEl~IATE `
" jest to the outrageous public exposure
b~ individuals, some of whom are
.,#ormer members of :those agencies,
who have deliberately put them at
risk. .
It was beyond .any question in my
mind that those people who are delib-
erately engaging in this practice are
fully aware of the fact that such expo-
sure can and has resulted in the loss of
life and the breach of security and,
consequently, affected the interests of
the United States of America.
I, too, believe as does the Senator
from Rhode Island and the Senator
from Alabama, indeed I think we are
all in agreement that it is high time
we finally got this-thing to the floor.
It is high time we get a vote.
We had a number.. of debates.. I see
the distinguished. Senator from Arizo?
na, chairman of the Committee on In-
telligence, here.. lie is fully aware.. of
the subject,. fuily;cognizaat of it.? He,
in his capacity on that committee;' has
heard all the arguments and debates
on this. We have had it through his
committee and .the; Judiciary Commit-
tee. In the 10 years I have been in the
U.S. Senate, there have not been many
issues that have been as thoroughly,
fully debated as this one. So I think it
is high time we got on with the issue
of deciding what are the only really
one or two controversial aspects of the
bill. We are 99 or 90 percent in agree-
ment as to what form this protection
of our agents should take.
I should like to suggest, and I think
it is appropriate-it is common prac-
tice. that the should move, probably,
the committee amendments. This is
the Judiciary Committee the Senator
from Alabama and I are representing
today. .I ask unaniinous consent that
we consider and agree to en bloc the
amendments as adopted in the com-
mittee on this bill.
The PRESIDING OFFICER. Is
there objection?
Mr. DENTON. Mr. President, I re-
serve the right to object.
Mr. BIDEN. >V2r. President, I amend
that to say and that the bill as thus
amended be considered as original
text.
The .PRESIDING OFFICER. Is
there objection to the unanimous-con-
sent request of the Senator from Dela-
ware as amended?
Is it the request of the Senator to
have the amendments be agreed to en
bloc?
Mr. BIDEN. That is correct.
The PRESIDING OFFICER. The
question is on agreeing to Lhe commit-
tee amendments en bloc.
.The committee amendments were
agreed to en bloc.
Mr. BIDEN. I thank the Chair for
the help.
Mr. President, let me, if I may, at
least from my perspective, outline in
just a few minutes. the essential ele-
ments of the bill as I see it so our col-
leagues, as they go forward with their
efforts and their homework tonight
and tomorrow and on the weekend,
reading the Rscoxn of what the
debate is about, will have a starting
point at least.
The whole purpose of this bill is to
penalize the disclosure of names by
three classes of persons, but it really is
only the third class of person we have
a debate about as to how we should do
it. The first is in section 601 (a) and
(b) and they deal with present and
former Government employees who
have had access to the names of
agents or who, because they had
access to classified information, are
able to determine the names of the
agents. In subsection (d), that deals
with individuals outside the Govern-
ment who disclose the names of agents
even though they. never had aceess to
classified information.
There are two formulations of sec=
tion (c) that really are the cause of
some debate here, in the- Senate,. and
that we shall be debating at the begin-
ning of next week, the so-called
reason-to-believe version, which reads
as follows: '.
Whoever, in the course of a pattern of ac-
tivities intended to identify and expose
covert agents and with reason to believe
that such activities would impair or impede
the foreign intelligence -activities of the
United States, etc. ?
We are talking about the third class
of person now, not the person who has
had access to classified information.
These are persons outside the Govern-
ment who disclose the names, the
standard we want to judge diem by.
The first standard we are going" to
argue about is the one I just read.
Another version is the version adopt-
ed by the Judiciary Committee. It is
the intent version. It is a response to
some of the arguments raised by some
of the constitutional scholars and
press groups who contend that the
reason to believe version is unconstitu-
tional and/or unnecessarily broad.
The intent version reads as follows:
Whoever, in the course of an effort to
identify and expose covert agents with the
intent to impair or impede the foreign intel-
ligence activities of the U.S. by the fact of
such identification and exposure,
And so on.
That is what we are going to be ar-
guing about. That is what it is all
about. That is what it comes down to-
whether or not we have the operative
language that would make it a crime
and subject those persons to a crimi-
nal penalty who reveal the names of
agents, who have not had access to the
names of these agents through classi-
fied information in the past, fall out-
side of Government but, nonetheless,
by whatever means, gain access to it: a
reporter who finds out that John Doe
is a CIA agent and he publishes John
Doe's name; or somebody who deliber-
ately goes on a witch hunt to find out
the names of those people, gathers
them up and publishes them for pur-
poses of exposure. They are the folks
we are after:
So what we are going to be arguing
about-not so much today because we
S' 116?
are not going to spend a lot more time
here today-is how do we get to those
folks, how do we treat them, and by
what standard of -law do we apply to
them?
On the fairness position argued by
the Senator from Rhode Island, the
Senator from Alabama and others, a
case can be made that the civil lib-
erties of Americans aze better protect-
ed by the reason to believe standard.
So our colleagues are going to hear a
lot of confusing, well-intended jargon
on both sides. We are going to have
the Senator from Rhode Island argu-
ing, iY we really want to protect civil
liberties, we should adopt reason to be-
lieve. We are going to have the Sena-
tor from Delaware say, na, it is better
to have an intent standard.
I do not have any doubt in my mind
at the beginning of this debate that
the Senator from Rhode Island means
what he says, that he truly believes
the best way not only to protect our
national interest but also not to via
late the civil liberties of our American
citizens under the first amendment is
to adopt the reason to believe. I
happen to disagree with that: So we
are about to get into a debate that I
believe is borne out by a genuine belief .
on both our sides that we can get the
job done with our language and pro-
tect civil liberties. .
Mr. President, I think it is useful for
us to really understand just how
narrow the difference is, because it
gets kind of complicated. We are going.
to get into fairly esoteric arguments
and it is a little bit hard to follow. I
suspect that we shall both or all of us
on the floor may very well-at various
times in the debate, our decibel rates
may rise and we may also be making
.appeals as to the same basic set of ar-
guments and our colleagues are going
to argue, how can they both be saying
the same thing?
Mr. President, there is much more to
talk about in this bill. There is a sec-
tion on whether it is constitutional to
penalize nonemployees: We are going.
to be talking about what happens
without the intent language, what
happens with the intent language. We
'are going to be arguing about what
the Agency thinks .will get- the job
done, we are going to be arguing about
how badly all these things are needed.
Rather than get into those things now
and rather than make a more lengthy
floor statement, I want to reiterate
where the bone of contention is going
to come.
The argument we are going to be fo-;
cusing on in this bill is whether or not
the language which says "with .the
intent to impair or impede" should be
stricken and we should have language
that says "with reason to believ.e." It is
going to come down to that. That is
the big issue. I am anxious to get it
settled. I am anxious to have a resolu-
tion, because we need a bill. These
folks need protection and I am confi-
dent "that whatever version we come
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S 1168 ` CONGRESSIONAL RECORD =SENATE Februacry 2~, 1982
out with"1ve can get passed in the U.S.
Cong-res9, we can get the President to
'sign, and we can ,get on with the busi-
ness of putting it in shape. So without
getting into the details of my~ argu-
ment as to why I think we should stick
with the committee version, let me
yield to my colleagues who also have
opening statements and, maybe, a dif-
ferent perspective on this question:
Mr. DENTON. Mr. President, first I
would pose a rhetorical question to
the Senator from Delaware. I wonder
why the. Senator is so firm on the
intent standard regarding the applica-
tion of legislation to protect the lives
of our. intelligence agents -and yet does
not come down on that same standard
on the issue of voting rights.
Mr. BIDEN. I said it was going to be.
an interesting debate-. I, will be happy,
since it was a rhetorical, question, to
speak to that quesl;ion.in-some detail
as we get down the.line here. =:..
Mr. DENTON. I yield. to the Senator
from Arizona. ~ -
Mr. GOLDWATER. Mr. President, .I
thank my _ friend..:.The:. ;.Intelligence
Identities Protection :Act {S. 391)
before us today will help protect our
intelligence personnel on difficult and
dangerous assignments .in foreign.
countries. It also will help stop our in-
telligence sources from turning away
from us because they are afraid we
cannot be trusted to protect them. It
might help us get information that is
vital to the security of:our country.
Last November, the "Covert Action
Information Bulletin" published the
names o.f 69 alleged CIA officers serv-
ing in 45 countries abroad iii a section
titled "Naming Names:' In addition,
the "Bulletin" reprinted the names of
272 alleged covert agents which had
been identified in the 12 previous edi-
tions of the magazine.
One week later, the pro-Sandinist
paper, Nuevo Diario, identified the
names of 13 alleged CIA officers as-
signed to the U.S. Embassy in Mana-
gua, Nicaragua: Several of those
named have already received death
threats, been ~ roughed up .in their
homes at night, and the families of a
number of these American officials
have been evacuated for their personal
safety. U.S. officials in Managua have
linked the publication of these names
with the visit of Philip Agee to Nicara?
gun last month.
There has already been one murder.
Rciiard Vvelch was muruered iii
Greece after being named. In 1980,
two attempts were made in Jamaica to
assassinate American personnel. They
were set up as targets for assassination
by other Americans through the unau-
thorized disclosure of .names. There
are two ways this is being done. One is
the naming of names at press confer-
ences, and the other is listing names in
books and publications. These unau-
thorized disclosures have been exten-
sive and many have been made by
former CIA employees. The tragedy is
that we do not have any laws to stop
it. -
It is bad enough that our overseas
employees are exposed to violence, but
to allow someone here at home to do it
by putting ID tags on them so that
they may become- targets makes no
sense at all.
So far, some 1,200 names have been
made public in magazines or newspa-
pers. Another 700 appeared in a book.
A bimonthly bulletin exposes CIA,
FBI, and military intelligence person-
nel and assignments. A worldwide net-
work called CIA watch is operated for
the purpose of destroying the CL9.
Every time I read about something
like this, it bothers me, I cannot help
but wonder why we let it continue and
why someone does not do something
about it. That seems to me as morally
wrong as anything I can think of and
something I can accept no longer. . -
We are in a rut on this subject, and I
am afraid it will become our grave if
we do- not stop talking and do some-
thing. We must tell the world that we
will not tolerate such disclosures any
longer and show that we care for the
CIA and plan to do something about
it. .
Thus, the immediate goal for this
Nation-and for this Congress-should
he the rebuilding and revitalization of
the intelligence community which wi21
benefit all our citizens.
We should have had this bill before
us sooner, but now that it is before us,
we must act promptly. This bill was re-
ported .from the .Senate Intelligence
Committee by a vote of 13 to 1 in 1980,
after 9 days of hearings and over S50
pages of testimony. It picked up 47 co-
sponsors in 1981. It passed the House
by a vote of 354 to 56 last year, and
has had the support of both the
Reagan and Carter administrations.
The purpose of this bill is to protect
the lives of American citizens working
abroad in the intelligence operations
of this country from other American
citizens who deliberately wish to set
them up for exposure to violence by
the unauthorized disclosure of names.
The bill also places a price on the ac-
tIvities of those. who use this means to
impair and impede duly authorized
American intelligence activities
around the world.
. The biggest obstacle to this bill in
the past were claims that it would in-
terfere with free speech and freedom
of the press. That has been worked
out, and those claims are phony. The
Supreme %ourt would not hesiiaie to
say so if Congress were to go too far.
If someone wants to criticize foreign
policy, that is their business. If they
want to write about the lousy conduce
of-some of our citizens, that is OK,
too.. But they do not have to name
names, because that places the lives of
human beings in danger. That is not
OK. It is not acceptable in the Ameri-
can society.
There have been at least six bills on
both sides of the Capitol to deal with
this, but all of them have been bogged
dawn in discussions over how best to
arrange words. The problem has been
how to protect first amendment rights
while allowing for. pros~cntion of
those who abuse those righffi. I hope
we have not become so helpless that
we cannot recognize a serious situation
and. solve it just because we cannot
agree on words. I believe that first
amendment rights were considered
and that the bill will protect those
rights while allowing for prosecution
of those who name names solely for
the purpose of harming the Govern-
ment's foreign intelligence activities.
There is another amendment in the
Constitution that is important, too.
That is the 14th amendment, which
guarantees the right of equal protec-
tion to all citizens. I believe this bill
will protect those rights and the first
amendment at the same time.
This bill will outlaw unauthorized.
disclosure of names in three ways.
First it covers those who have access
to classified information which identi-
fies names. Second, it applies to those
who have access to classified informa-
tion but not-names, and who learn of
names because of that access. Third? it
hits those who make a business of
naming names in a deliberate and sys-
tematic way even though they claim
not to havt access to classified infor-
mation. '
Some have said that this bIll will not
do much more than help patch the
image of the CIA. I believe Lhat there
is a lot more at stake than that. It has
nothing to do with whether you like
the CIA .or do not like the CIA. Saving
lives is what this bill will do. This is so
serious that if we do not pass this bill
the KGP people are the only ones who
will get a laugh out of it. Everyone
else wail think we are crazy and start
looking at us as accessories to negli=
gent homicide. It would mean that the
would prefer to protect those who
would harm us instead of those who
work for us.
A high-ranking CIA official testified
before the Senate Inte_iligeace Com-
mittee in these words: -
Our intelligence sources and methods are
part of the national treasure- Once dis-
closed, our sources can be denied to us and
our methods thwarted by relatively simple
actions by foreign authorities. The law cur-
rently Lacks teeth in seeing to it that these
sources and methods are adequately pro-
tected from unauthorized disclosj.~se.
Mr. President, those words certainly
make sense. There is no good reason
why our intelligence employees or
agents who operate under protective
cover on official Government business
- should be placed in needless danger by
permitting their identities to .be re-
vealed deliberately.
Mr. -President, I might comment
that we are the -only country in the
world that allows this to ga on. The
penalty for doing this in 2ny other
country would undoubtedly be death
or life imprisonment. But we allow it
to go on out of an office on DuPont
Circle, and I am fed up with it.
These disclosures of identities have
no redeeming social value and were-
 Approved For Release 2007105114 :CIA-RDP801V100914RQ01900160047-8
`February 25, 182 CONGRESSIONAL RECORD -SENATE S 1169
- ovuac v ycaao. cuav, uy ua~py pVlIIla-
_~`reedom of_speech or of the press in- ished quality of intelligence we can dence, the floor leader for the minor-
' corporated in the first amendment to expect to receive unless we take action ity on this .issue, representing the Ju-
our Constitution. now. - diciary Committee.. also serves on the
Nearly ail major foreign intelligence It seems to me that we sometimes Intelligence Committee. So he is very,
services with which the United States forget that the intelligence agencies very familial' with the issues that u e
has liaison relationships have under are on our side and sometimes need are struggling with here today. He
taken reviews of their relations with our help. It makes no sense for us lends great insight to the problems
the Agency. Some immediate results always to be looking for faults. that we face. -
of continuing disclosure have included This is an emergency situation that ~., president, briefly let me review-
reduction of contact. reluctance to needs legislation to deal with it now. the matter. "
engage joint operations. and reduced We cannot avoid this issue just be- We have members who serve on. the
exchange of information. cause we may get some bad press. We Senate Intelligence Committee wlio
That in itself is a very serious thing must pass,the Chafee-Jackson amend-
to have happened to our country when ment, and we must pass this bill. We travel around the world and spend a
we cannot exchange classified intelli- must have the courage to do what is good deal of time with American Intel-
. gence information. with other coun- right. This bill is good for our fellow ligence agents both at home and .
tries and slowly lose them as sources Americans wha serve us on difficult abroad. They are fully aware that the
because they are afraid for the lives of and dangerous missions abroad, And it most nagging problem. facing our
their own people and they do not like will do us a lot of good, too. agents-one which elicits the greatest
the possible disclosure of tog secret in- Mr. President, the most important concern from those who lead the- In- -
formation of. their own. . _ ~ function of the legislative branch is to teIIigence Agency-is the fact tYsat
There is an urgent need.for effective legislate when it is needed: We need it names of alleged agents are published
legislation both. to discourage" these now. I,et us go ahead with Senator freely by American citizens. As the dis-
unauthorized? disclosures and to cri CxaFSe . znd Senator Jncgsox's tinguished floor leader for the minor-
minalize them when they occiu. The amendment. ity on this issue pointed out, we-have
credibility of;our country in its-rela- I wish" to take this opportunity to h'i~ ~ this- legislation, whether it is
tionships with foreign liaison services thank the Senator from Rhode Island the committee's bill or whether it is in
and agent sources is at stake. The per- for his constant courage. in pushing the amendment that Senator Jnc~asox
sonal safety and well-being of patriotic forward on this matter. It is long, long and I have. proposed, to grohibit the
Americans serving their country in the overdue, and it will do more in "my ? Publication of these agent's names
far reaches of the globe are at stake. humble opinion to once again create a from three sources oY publication, or
The professional effectiveness and giant and effective force of inteili- potential sources of publication -
morale of this country's intelligence gence in this country than. anything I The first category of person :naming
officers is at'stake: In sum, the Na- can think of; a force which was dimia- names is the person who had author-
tion's national security is at stake. ished. by the so-called Church evmmit- ized access to information that identi-
U.S. intelligence. officers overseas tee which almost deprived us of intelli- fies a covert agent. This person may
must establish what are, in effect, con- gence during the years it was in exist= work for an intelligence agency. The
tratual relationships with foreign na- ence. second category deals with those who
tionals occupying key posts and who Mr: President, I yield the floor, had access to some secret information
are willing to provide information to . Mr. DENTON. Mr. President, I was but they themselves did not have spe-
the U.S. Government. Since. many of delinquent in not yielding to my ad- cific access to the name of a covert
our most valuable intelligence sources mired friend from Arizona more elabo- .agent.
live in societies were anything less rately. Finally, you come to the most diffi-
than total allegiance to the state could He ran for the Presidency in 1964, cult group of persons naming names.
subject an individual to ions of life or and the respect held for him in the ~~ category includes those who did
liberty, they rightfully demand an ab- hearts of the people of my State was not serve or are not currently serving
solute assurance that the cooperative such that ~he not only won that State in an intelligence agency, and who do
relationship they are about Lo enter in that election but he got the first not. have access to classified informa-
intoswill remain private. You. can five Republican Congressmen from AI- tion Nonetheless they proceed to
imagine the effect it must have on a abama since Reconstruction elected on identify names of alleged agents
source who one day discovers that his his coattails. through determined efforts on their
contact has been openly identified as a I have had personal opportunity to part to ferret out the names of what
CIA officer. The impact in this regard admire him for decades, and then to might be agents, and then they pro-
fs twofold. First, there is a substantial .serve with him on the Armed Services Geed to publish these names..
adverse impact on the CIA's ability to Committee and to be invited by him to That is the cause of the
collect intelligence; second, some of participate in hearings on the Select problem,
our foreign sources, who, notwith- Committee on Intelligence, and I and. that presents the difficulty Eve
standing the disclosures, must remain cannot think of a man in the United have here this afternoon- as we debate
ir. place, may be subject to severe pun- States to whom we owe more for pro- this legislation. Can you punish some-
ishment or worse. tecting this Nation's security interests. one who himself has never had axcess .
As matters now stand, the intention- I strongly recommend that we pay to classified information, who never,
al exposure of covert intelligence per- close attention tv what he just had to perhaps, served is an intelligence
sonnet without punishment implies a offer us. agency, but who,. using unclassified
governmental position of neutrality in I will yield to the distinguished Sen- documents, a whole series of them,
the matter. It suggests that U.S. Intel- ator from Rhode Island who has been carefully seazches through Lhem and
ligence officers are fair game for those a central figure in bringing this meal- ferrets out and produces n. _
I hope we are going to hear from, on
Monday, my colleague from Pennsyl-
vania, a former prosecutor, on the
other side of the aisle, who, I think,
will make the case fairly eloquently
that it ~ ould be harder to get a convic-
tion under the "reason-to-believe"
standard than under .the "intent"
standard.
I will also argue in some detail on
Monday the constitutionality of the.
standard of "reason-to?beIieve."
I would just like to note for the .
record and put in the RscoxD a list of
over 100 law professors, the most out=-
spoken .one of whom is. Prof. Philip
Kurland of t11e. University of Chicago.
They ,all say that the "reason-to-be- '
lieve" language is unconstitutional as
it is applied in the proposed statute.
One other point I would like to
make-there are man9 more to make,
but just one. other point at this junc-
ture-the Senator from Rhode Island;
as he always is, is.eompietely candid;
and let me be completely candid. The
argument is not whether or not this
administration wants the Biden lan-
guage or the Chafes language more. It
wants the Chafee language more,
there is not any question about it.
This administration says, "We want
the Chafee language:' but they also
said in testimony before our commit-
tee, ,they have always said repeatedly,
-that the Biden language can get the
job done.
What we are about here is getting
the job done of putting these folks in
jail who are, in fact, attempting to
impede or impair the foreign intelli-
gence activities of the United States of
America.
I suggest to you that in our public
and private conversations the adminis-
tration feels fairly strongly about it.
But they also feel. fairly strongly
about the Senator from Rhode Island,
and I would, too, if I were a Republi-
can President. He is one of the most
ly takes two portions of the statute to competent people they have, and if he'
come up with the conclusion that came to me and said, "This is impor-
there was intent. The point I really tant to me, but I thing this is right-
want to make here ?is I spent 2 years not that it is important to me person-
doing a study for the Intelligence ally-but this is the way to go, and
Committee on the espionage laws of both of them mill get the job done,. but
this country and. in fact ~t~ith the help the Chafee language will do the job," I
of Mr. Gitenstein, who was then on would sure say, "The Chafee one is
the Intelligence Committee and now the one I want."
on the Judiciary Committee staff, we I admit that this administration does.
went back and looked at every damage not. think-it has consistently not
assessment report for the previous 10 thought-that the Chafee language
years on leaks in espionage activities could be unconstitutional. So looking
to carte a tough espionage statute_ at -it from the President's side of the
You know what we found out? We ledger he says, "Both can get the job
found out. there is hardly any success- done. One is constitutiorial,'one is in-
ful leak prosecutions under the Espio- troduced by BIDSrr, not a very strong
nape Act, hardly any. supporter of mine, and the other one
I would respectfully suggest to you is introduced by the Senator from
that one of the reasons why it is diffi- Rhode Island. Which one am I going
 S 1178
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" CONGRESSIONAL RECORD'- SENi~TE" ' -February 25, 1382 ~-
to go with? Of course; I am going to go
with the;Chafee one."
But that is not really the issue. The
issue. is on my side of the argument,
"Look, it simply comes down to this:
Why take a chance on its being uncon-
stitutional? Why take a chance on it
being harder to get a prosecution be-
cause the statute is struck down and
go with the Chafee language when we
both admit they both get the job
done?"
The Chafee side of the argument, I
would suspect, comes down in the final"
analysis to, "Look, even though they
can both get the job done, they are
both constitutional, why fool around
with the Biden language because I
think ours can get the job done better
and faster?"
I mean, we are'really arguing on the
margins here, and I am constrained to
wind up now because there is a very
strong supporter of this -position of
the committee's who aunts to -speak
now. Again I will have much more to
say, lint I would like. very much to
submit for the Rscoaa, ,and I ask
unanimous consent, a list of all those
law professors who concurred with the
position I just took, and a letter from
Professor Kurland be printed in the
RECORD, along with a letter from LauT-~
core H. Tribe, professor of law at Har-
yard University to Senator KEIVNEnY in.
September of 1980. " -.
There being no objection, the mate-
rial was ordered to be -printed in the
RECORD, as follows:-
PROeESSOR KDRLANn?ON S. 2218
Perhaps the sharpest and most succinct
scholarly criticism of S. 2216 came from
Philip B. Kurland, Professor of Law at the
University of Chicago and- one of the na-
tions leading constitutions} scholars:. - . .
HOn. EDWARD KENNEDY, _ _ -
Chairm.an, -
Committee on the .ludiciary,
Washington, D.C.
DEAR SENATOR KENNEDY:- In response t0
your request, I can frame my op[nion on the
constitutionality of Sec. 501(c) very precise-
ly. Yhave little doubt that it is unconstitu-
tional. Icannot see how a law that inhibits the
publication, without malicious intent, of in-
formation that is in the public domain and
previously published can be valid. Although
I recognize the inconstancy and inconsisten-
cy in Supreme Court decisions: I should be
very much surprised If that Court, not to
speak of the lower federal courts, were to le-
git;imize what is, for me, the clearest viola-
tion of the First Amendment attempted by
Congress in this era _
With all good wishes, ? .
Sincerely yours, '
' PHILIP $. KvRLAND,
SEt rErIflER 25, 1980.
~'Ve believe that Sections BOl(c) of S. 391
and 501(c) of H.R. 4, which would punish
the disclosure of the identity of covert CIA
and FBI agents derived solely from unclassi-
f~ed information, violate the First Amend-
ment and urge that they be deleted.
Charles Abernathy, Professor of Law,
Georgetown University Law School.
Bruce Ackerman, Professor of Law, Yale
University Law School. "
Barbara Aldave, Professor of Law, Univer-
sity of Texas Law School. ?
George Alexander, Professor of Law, Uni-
versity of Santa Clara Law School.
'-Judith Areen, Professor of Law. George-
town University Law School.
Peter L. Arenella, .Professor of 'Law,
Rutgers University School of Law.
Richard Arens, Professor of Law, Univer-
sity of Bridgeport School of Law.
Charles E. Ares, ?.:'ofessor of Law, Univer-
sity oP Arizona College of Law.
Robert Aronson, Professor o1 Law, Univer-
sity of Washington School of Law.
Frank Askin, Professor of Law, Rutgers
University School of Law.
Barbara Babcock, Professor of Law, Stan-
ford University. '.
Fletcher Baldwin, Professor of Law, IInI-
versify of Florida College of Law.
Elizabeth Bartholet, Professor of Law,
Harvard University Law School.
Patrick Baude, Professor of Law, Indiana
University School La~v School.
Paul Bender, Professor of Law, University
of Pennsylvania Law School.
Carolyn Bratt, Professor of Law, IIniver-
sity of Kentucky College of Law.
Ralph S. Brown, Jr., Professor of Law,
Yale University Law School.
? Burton Caine, Professor of Law, Temple
University School of Law.'
Oscar Chase, Professor of Law, New York.
University School of Law.
Paul Chevigny, Professor of Law," New
York University School of Law.
Michael Churgin, Professor of Law, IIni-
'versify of Texas Law School.
Richard A. Chused, Professor of Law,.
Georgetown University Law School.
Robert Emmet Clark, -Professor, of .Law
Emeritus, University of Arizona College of
Law. '
Sherman Cohn, Professor of Law, George-
town University Law School.
Tom A. Collins, Professor of Law, College
of William and Mary, Marshall-Wythe Law
School.
Vern Countryman, Professor of Law,. Har-
vard University Law School.
Alan M. Dershowitz, Professor of Law,
Harvard University Law School.
Norman Dorsen, Professor of Law, New
York University School of Law.
Steven B. Duke, Professor of Law, Yale
University Law School.
Thomas I. Emerson, Professor of. Law
Emeritus, Yale University Law School.
Nancy S. Erickson, Professor of Law,. Ohio
State University College of Law.
David B. Filvaroff, Professor of Law, Uni-
versity of Texas Law School.
Caleb Foote, Professor of Law, University
of California Law School.
Jack Getman, Professor of Law, Yale Uni-
- versify Law School.
Steve Gillers, Professor of Law, New fork
University School of Law.
David Goldberger, Professor of Law, Ohio
State University College of Law.
Peter Goldberger, Professor of Law, ViI-
lanova University School of Law.
Louise Graham, Professor of.Law, Univer .
sity of Kentucky Law School,
Arthur S. Greenbaum, Professor of: Low,'
Ohio State University College of Law.
Linda S. Greene, Professor of Law,
Temple University School of Law. -
Trina Grillo, Professor of Law, Hastings
College of Law.
Daniel. Halperin, Professor of Law,
Georgetown University law School.
Charles Halpern, Professor of Law,
Georgetown University Law School. .
Joel Handler, Professor of Law, George-
town University Law School.
Michael C. Harper, Professor
Boston University Law School.
John M. Hyson, Professor of Law, Viltan-
ova University School of Law.
Stanley Ingher, Professor of Law, Univer-
. arty of Florida CoIIege of Law.
Louis A. Jacobs, Professor of Law, Ohio
State University College of Law.
Peter Jas2i, Professor of Law, American
University, Washington College of Law.
Arthur Kinoy, Professor of Law, Rutgers
University School of Law.
Lewis Kornhauser, Professor of Law, New
YorkIIniversitySchool of Law.
John R. Kramer, Professor of Law, ,
Georgetown IIniv~sity Law School
Stanley K. Laughlin, Professor of Law,
Ohio State Universfty College of Law.
Howard Lesnick, Professor of Law, Univer-
sity of Pennsylvania Law School
John Leubsdorf, Professor of Law, Boston
University Law School
. Allan. Levine, Adjunct Professor of Law,
Cardo2o School of Law.
Sanford. Levinson. Professor of law, Uni-
versity of Texas Law School.
John Levy, Professor. of Law, College of
William and Mary. Marshall Wythe Law
school .
Lance Liebman, Professor of Law, Harvard.
Vniversity Law School.
Jeffrey A. Meidmaa, Professor of Law,.
Massachusetts Insttute of Technology. '
Louis Menand, Professor of Law, Massa-
chusetts Institute of Technology.. .
Roy i3,iersky, Professor of Law, University
of Texas Law School. -
Elliot Millstein, Professor of Law, Ameri-
can University, Washington Collage of Law.
ArvIl Morris, Professor of Law, University
of Washington 5cleool of Law.
Jack Murphy, Professor of Law, George-
town University Law School.
Winston P. Na,gan, Professor oY Law, Ulii-
versfty of Florida College of Law.
Barry Nakell, Professor of Law, University
of North Carolina Law School.
James- C. Oldham, Professor- of Law,
Georgetown University Law School.
Joseph A. Pa?~e, Professor of law, George-
town University Law School
Ri,^.l:a.^-d '.~. Paco,.?? Profe, :Cr of T..::l, H?r=
yard University Law School.. ?
Daniel Parton, Professor of Law, Boston
University Law School
Cornelius Peck? Prafes5or of Law, Univer-
sity of irVashinaton. School of Law.
Willard H. Pedr~k, Professor of Law, Ari-
zona State University College bf Law.
Leroy Pernell, Profes,5or of Law, .Ohio
State University College of Law.
NGchael Perry, Professor of Law, Ohio
State University College of Law-
Daniel H. Pollitt, Professor of Law, Uni-
versity ofNorth Carotins Law Scleool_
Aadrety Popper, Professor of Law, Ameri-
can University, Washington College of Law.
Sant Powe, Professor of Law, University of
Texas Law School '
Sohn: Quigley, Professor of Law.
Robert Sedler, Professor of Law, Wayne
State University Law School.
Louis Michael Seidman, Professor of Law,
Geozgetown University Low School_
Ed Sherman, Professor of Law, University"
oY Texas Law School
Andrew Silvenaan, Professor of Law, Uni-
versity~ of Arizona College of Law.
James Simon, Professor of Law, New York
Law Srhooi.
Avialn Soifer, Professor of Law, Boston
University Law School.
Lawrence Berman, Professor of. La~v, Ohio
State University College of Law.
Morton J. Horwitz, Professor of Law, Har-
vard University Law School.
Annrnvari Fnr Ralaaca 7(1(17if1511d C;IA-R.I7P
State University College of Law. -
Girardeau A. Spann, Professor of Law,
Georgetown University Law School.
Roy Spence, Professor of Law, University "
of Arizona College of Law.
M 00914 R 001900160047-$
 .Approved For. Release 2007/05114 ?CIA-RDI'83M00914R001900160047-8.
. Februixry 25, 198,E ~ ~ CONGRESSIONAL RECORD' -SENATE -
Geoffrey Stone, Professor of Law, Univer? and discussion of governmental affairs" id. to the United States." Even under such cir-
r sity tSf Chicago. Law School ~ ~ at 839 (majority opinion); Neto York Times cumstances-and assuming that any matter
Telford Taylor, Professor of Law, Colutri- Co. v. Sullivan, 376 U.S. 254, 269-70 (1954), so vaguely flefined can be "known"-? 501(c)
bra University Law School. or the correlative principle that no govern- would not require the Government to prove.
Charles Thompson, Professor of Law, mental restriction on "uninhibited, robust, any causal link between the culpable disclo-
Ohio Stati: University College of Law, and wide-open" political debate, id. at 270, is sure and a harm that would justify punish-
Gregory M... Travalia, Professor of Law; constitutionally acceptable unless- ing it.
Ohio State University College of Law. (a) the restriction is designed to achieve a This mismatch between the Government's
James Treece, Professor of Law, IIniversl- compelling governmental objective, and is chosen means and its professed ends not
ty of Texas Law School. narrowly drawn to achieve neither more nor only dooms $ 501fe> on its face but also un-
Lawrence ,Tribe, Professor of Law, Har- less; and derscores doubts, independently generated
vard UniversIty.Law School. (b) the restriction's enforcement in a by the provision's history, about its true
Richard C,.. Turkington, Professor of Law, given case is shown to be truly essential to aims, and, indeed, about those of ? 501 as a
Viilanova University School of Law. ~~nlP.,a rh~r ,.,,,?.,e,,:.... __.._._~__._.. _
Frank IIpham, Professor of Law, Ohio ace czrsc ~vartonal Bank v. Bellotti, 435
State University College of Lam. . U.S. 765, 787 (1978); In re Primus, 436 II.S.
Pete Wales, Professor of Law, Georgetown 412 (1978); Buckley v. V?leo. 424 II.S. 1, 25
University Law School. (1976) (pee Curiam),z Section 501(c) quite
Bttrton Wechsler, Professor of mow, clearly fails to meet these tests.
American University,. Washington College The provision's proscriptions-which
of Law. = ~ ? apply even when the information 311ee'~ally
Wendy Williams; Professor of; .Law; ~ disclosed' was lawfully obtained, and even
Georgetown University Law School. .. when the; only result of its suppression
Bernard Wolfalan, Professor of Law; Har- would be to stifle criticism or exposure of ai-
vard University Law School, . -. leged- governmental ineptitude or wrong-
Diane Zimmerman..Professor of Law; New doing-are net limited to cases In which a
York University School of law: :. judge or jury finds that "disclosure" of the
_ fnformation in question has harmed, or is
HAavAaD F31P~ZVEi15ITY~F.A~p ~gppy~_ - .- ~ ~ ~ likely to harm, the safety or security of any
Canzbrtdge,-Mass", September 8, 1980. ~dividual or the success of any specific
Hon. Ebwnan M. KENNEDY, _ lawful governmental undertaking. Cf-
Committee on.the Judici? - . - _- Bridges. v. Cali,Porni?, 314 U.S. 252, 263
~~ (1941); Pennekamp v. Florida, 328 U.S. 331,
Washington, D.C.. 347 (1946); Craig v. Harney, 332 U.S. 367,
DEAR SENATOR KENNEItY: Thank you for 376 (1947); Wood v. Georgia. 370 U.S. 375
inviting me to offer my views on ? 501(c) of (1962): The provision at issue'wouId Imper-
the Intelligence Identities Protectfon Act of missibly penalize unauthorized .disclosures
1980, 5.2216.r I believe~that this provision, if without requiring any such showing of
made law, wotjld violate the First -Amend- actual or probable harm.
meet. -: It is no answer that the disclosures for
There is no doubt, of course, that "the Ex- which ? 501(c) prescribes punishment Rzth-
ecutive . [may) ;., ,:., ... promulgat[e] and out requlring'such a showing of injury are'
enforc[e]' ...::executive regulations[ 7 to limited to disclosures made "in the course of
protect the. confidentiality- necessary to a pattern of activities intended to identify
carry out its responsibilities in the fields of and ex
international relations and national de- pose covert agents and with reason to
tense." Nero -York Times Co. v. -United believe that such activities would impair or
States, 403 U.S..713, 729-30 (1971) (Stewart, impede the foreign intelilgenCe activities of
J., joined by White, J., concurring). Nor is the United States." Indeed, the vague "pat-
there any doubt that "Congress [may] , , - tern of activities" requirement demonstrates
enact .. ,criminal laws .to protect eovern. that the proposed law would be anything
.,...,,o aw nu ,av. OLL4 LRe 2?'IISL amendment
severely circumscribes the Government's
power to achieve such ends by punishing
journalists and other private citizens for re-
peating or publishing truthful information
either (1).lawfuily derived or deduced from
information that has already found its way
into "tyre public domain," Cox Broadc?sting
Co. v. Cohn, 420 U.S. 469, 495 (19751, or (2)
innocently received as a "leak" from same-
one with access to classified, or otherwise
confidential, government materials. ~Land-
tnark Communic?tions, Inc. v. Virgin4a, 435
U.S. 829, 837-46 (19?8).
Ttle need for secrecy. in the foreign intelli-
gence sphere is among the most pressing of
governmental interests. Cf. id. at 849 n.
(Ste~o?art, J., concumng in judgment). But
this cannot obscure either the priority given
by the First Amendment to "public scrutiny
'The provision reads as follows:
"(c) Whoever, in the course of a pattern of activi?
tics intended to identify and expose covert agents
and with reason to believe that such activities
v:ould impair orimpede the foreign intelligence ac-
tivities of the United States, discloses any informa-
tion that identities an individual a.4 a coveK a,ent
to any individual not authoriaxd to receive ciassl?
tied information, knowing that the information so
disclosed so identifies such individual and that the
United States !s taking affirmative measures to con-
coal such individual's classified intelligence rela-
tionship to the United States, shall be fined not
more than S15,000 or imprisoned not more than
three years or both." -
protecting the image and reputation of gov-
ernmental officials and agencies,- or the
smooth operation of governmental pro-
grams immunized from public examination
and ccitique, is insufficient justification "for
repressing speech Lhat would otherwise be
free." Neu+ York Times Co. v. Sullivan, 37fi
U.S. 254, 2?2-73 (1964k Thus, for example,.
the provision's restrictions on disclosure
cannot be justified by' the Government's
wish to preserve the CIA's "plausible denia-
bilitg," or to -avoid "political outcry" over
American covert operations in foreign coun-
tries, or otherwise Lo preserve, among other
things, access.,'to appropriate targets"' of re?
cruitmenG abroad. New' York Times, Sep-
tember 6, 1980,.at 22, coL_1 (quoting testi-
mony of Frank C. Cazluccl, Deputy Direc-
tor, CIA, before Senate Judiciary Commit-
tee on September 5, 1980)_ Such justifica-
tions bespeak purely political purposes
beyond the Government's power to accom-
push by stifling protected speech. Moreover,
such congressional action, frankly Larget-
ting for special restrictions on First Amend-
ment activities a readily identifiable group
of private citizens-in this case, apparently
a, group of journalists associated R?ith the
Covert Action Information Bulletin-hears a
distressing resemblance to past legislation
whose purpose to punish dissenters or pe-
nalize partisans of defeated enemy causes.
was evident from the legislation's face or
history-and which was hence invalidated.
by .the Supreme Court as a forbidden .ex
post facto law or bill of attainder.a
Fnr hho re., ~...... r s....._ ___. _~< zt to and
certainly more than is required in a
prosecution under the "infect' stand-
ard.
Under areason-to-believe standard it
suddenly becomes relevant to the de-
fendant's case what effect the disclo-
sure had or would have on certain in-
telligence activities. In other words.
the objective "reasonable man" stand-
ard necessalily forces the Government
to reveal. what the agent, whose cover
was blowrs,.was doing in the country to
which he had been assigned.. Such in-
formation would not have to be re-
leased under the "intent" standard be-
cause it would be irrelevant. A
"reason-to-believe" standard could,
thus,. chill not only legitimate journal-
ism, but also the very prosecutions
which this legislation is designed to
bring about.
The White House; the Justice De-
partment and the CL~ have all stated
that either an "intent" standard or a
"reason-to-believe" standard would be
acceptable to them. They profess to
believe that both are constitutional
 Approved For.Release 2007/05114 :CIA-RDP83MQ0914R00190016Q047-8
February 25, 1982 CONGRESSIONAL RECORD-='SENATE
acid enforceable.` Though they. have reason-tabelieve language. As the dis-
expressed their preference for .the tinguished Senator from Delaware
"reason-to-believe" standard,. their top pointed out, 100 constitutional lawyers
priority seems to be the immediate and professors in this country have
passage of a bill which would end the voiced their concerns about .the prob-
destructive and sinister enterprise of lems of constitutionality: .
naming names. - If we really want to have a constitu-
I believe that S, 391 as reported by tional bill, why not go with the intent
the Senate Judiciary Committee will language that we know is, going- to be
accomplish that end, and will do so in constitutional and not -take a chance
an effective, efficient, and constitu- that the courts are going to throw the
tional manner, and. I urge my col- whole bill out? That is why it is per-
leagues to support it. ~ ~ ? plexing to-me to hear the administra-
'. Mr. President, I want to pay particu- tion say that they prefer the Chafee
lar reference and compliments. to my and Denton language to the Biden lan-
distinguished freshman colleague; guage, because there is no doubt that
Senator Daxxorl, who has been very the courts would find intent to be con-
active iii this and .other matters.%l3e stitutional.
has made an immense contribution.to Second, Mr. President,'when you are
the committee on which we serde to- dealing-with a"criminal statute, intent
gether, and he will continue to iri_ ake is the`- proper standard of "conduct.
an immense ;contribution : Lo,;= this Reason : to ~ believe ~ is a negligence
Senate. - - ~ = = ~~ " standard in civil cases. A criminalstat-
I also want to pay_iny-respects to ?the iite such as this should "have the mini-
distinguished Senator from Rhode mal legal ingredients of what criminal
Island who continues to be one of the acts do constitute, and that is intent.
c osatp respected..:_.Members of the Mr. President, again, I commend my
But I must say`to" these two distin=
guished .gentlemen.. that I disagree
with them on this issue. But I do hope
that we .pursue this debate Monday
and Tuesday in the spirit that .the
Senator from Rhode Island discussed
iri concluding his remarks.
This issue is not, an issue over who
supports civil rights and who supports
the first amendment.. W_ a all do. The
issue is not over who supports pros-
ecuting those who violate a very strict
code of conduct, 'or over who wants to
have agent identity legislation passed,
because we all do ?-
The question ?comes down to- what
statutory language is the- preferable
language to achieve both of those
goals.
There has been a' lot of discussion
these last few weeks on televising the
proceedings of the U.S: Senate. T
happen to be a supporter of that: But
those who- argue on `the` other side
keep pointing out the difference be-
tween this body and the other body.
They talk about the U.S. Senate as a
deliberative'body,,ond .they applaud
how the U.S:. Senate takes its time on
very important" issues. I hope that
Members of this distinguished body do
take their time on this very important
issue and that we think it through: I.
hope that we do not jump to an emo-
tional conclusion, simply choosing
whichever emotion happens to trigger
us the most, whether it is the first
amendment rights or the need to pro=
tect our Nation's security.
I hope that we think through this
process very clearly and very deliber-
ately. Ihope that we resolve this Issue
in the way the legislation was reported
from the Judiciary Committee. This is
the proper resolution to the issue.
Basically, Mr. President,. the reason-.
to-believe language is not preferable to
the intent language for two simple
reasons. FIrst, I think there is a legiti-
mate .constitutional question on the
colleagues. I hope that we proceed
along the lines of this debate in the
next few days, a line of facts, a line of
reasoning, and not one of simple reac-
tion to motions without a thorough
study.
The debate may be intense at times.
That is what our debate is all about. If
we Lake our time, I am certain that
the Senate will come down to the Ian-
guage, and I am hopeful. it_will come
dotivn to the language, as reported by
the Senate Judiciary Committee. The
members of that committee put in a
lot of hours. They are the ones that
put in a lot of work. A majority of that
committee has concluded that the
intent language is preferable. I am
hopeful that a majority of this body
will agree with them. -
I yield the floor.
Mr. DENTON addressed the Chair.
The PRESIDING OFFICER. The
Senator from Alabama.
Mr. DENTON. Mr. President. I
thank. my distinguished freshman coI-
league from Indiana and return his
sentiments of respect. I admire the
equanimity with which both he and
the Senator from Delaware have ad-
dressed the issue, I totally. concur that
we should do so with great delibera-
tion. .
It is my fear that the complexity of
the wording ~ and of some of the
thought patterns applied to the
rationale are going to defy the com-
prehensions of many of our colleagues
who, when they come in here to vote,
do not have much time to deliberate. I
hope there is some attendance to the
speakers to the debate which is taking
place so that our collective judgments
will be relatively enlightened.
I believe the Senator from Delaware,
the minority manager, made reference
to the President's preference for, the
Chafee language on the basis of his
being of the same party, but I may
have missed the implication...
S 1181.
Mr. BIDEN. If I may. I think he pre-
fers the Chafee language because he,
prefers it, but it is also an added incen-
tive that it is not the language of the
Senator from Delaware.
Mr. DENTON. The point I would -
like to make is that the Carter admin-
istration Justice Department also pre-
ferred the Chafee language.
Mr. "CFiAFEE. Mr. President, the dis-
tinguished Senator from Delaware
always has kernels for thought ~ and
cogitation. I have been pondering the "
comment he made that the President
was for the Chafee-Jackson language
because I was Republican. All weekend
I am going to be pondering why the
Carter administration was also for this =
language. Did they look at me as a po-
tential .convert? I cannot fathom -iii
,any way why they too would be sup-. -
portive of my language. Admiral
Turner was a Democratic appointee, as
head of the CIA. Attorney General
Renfrew was a Democratic appointee
of the Justice Department. I am still
waiting to discover the answer. So I
am looking forward to the debate on
Monday and hope I find out what par-
ticular appeal i might have had to the .
Carter administration 2 years ago.
Mr. DENTON.. Mr. President; . I
would like to go oil record in fully. sup-
porting the amendment to section
601(c) offered by my friend and distin-
guished colleague from Rhode Island.
I truly regard it as the best. and most
appropriate standard. by which to
criminalize this statute for naming
names resulting from a study of un-
classified sources. _
I must -acknowledge .before this
body; and before anyone covering this
session, that .I am not a lawyer, but I .
am supposed to be good at logic. Iti
fact, I did not have to take a course
once because I answered a question
posed at the beginning of a college
course in logic that. the man posed for
over 50 years of teaching. I do think
that I understand enough of the law .
to apply logic to this situation.
It seems to me that we have an in-
teresting inversion here, in that we
have Democrats and nominal liberals
propounding an approach which will
be intrusive, one which will involve a
subjective standard, one which the dis-
tinguished Senator from Delaware
proposes. .'I believe the use of the
"intent" standard will open a Pando=
ra's box in this particular case, which
defeats the objective of avoiding witch
hunts.
We have the reason-tabelieve stand-
and in which the defendant's political
belief, past conduct, critical remarks
about the Government, et cetera, are
all irrelevant. We have a finding by
the committee, the very committee to
which the Senator from Indiana re-
ferred, that:
'The disclosure of such relationships to un-
authorized persons is detrimental to the
successful and efficient conduct of foreign
intelligence, countetinteiligence, and coup=
terterrorism activities to the United States;
 s i1s~ '
Approved For Release 2007105114 :CIA-RDP83M00914R001900160047-8 . -
CONGRESSIONAL RECORD -SENATE F,ebruury 25, 1982
tive, standard that was in the original
bill as introduced by_ the Senator from
Rhode Island. The objective standard
was deleted in the Judiciary. Commit-
tee by a single vote and an intent_or
subjective standard was adopted. .
But, Mr. President, it was the objec-
tive standard that I and our 40-odd
colleagues chose to cosponsor when we
endorsed S. 391. It is this standard also
that was overwhelmingly endorsed by
the House of Representatives and is
now in H.R. 4, the House version of S.
391. Finally, it is the objective stand-
ard that is endorsed by the intelli-
gence community itself-the Central
Intelligence Agency. the Federal
Bureau of Investigation, and the Asso-
ciation of Former Intelligence Offi-
cers..I wish to confine my remarks to a
defense of the reason to believe stand-
and and to urge my colleagues to sup-
port and endorse it with me.
We are being told, Mr. President,
that . the objective standard of the
reason to believe language is unconsti-
tutional, that it fails to define a bad
purpose, that its enactment . would
jeopardize the effectiveness of the bill
and also that it would have a chilling
effect on legitimate discussion of intel-
ligence policy and activities in .the
public forum. I would like to address
these charges seriatim, but I would
like. first to point out that some. of
them are. mutually contradictory.
If reason to believe is unconstitu-
tional, it would be overturned by the
courts. This is the argument of its op-
ponents, who say that they would like
an effective bill. Yet they also argue
that reason to believe would have a
chilling effect. If it is to be overturned,
then it obviously could not have a
chilling effect. Vife cannot accept the
mutually exclusive propositions that a
law would be both effective and inef-
fective.
In regard to constitutionality,' I
would like to point- out that nine Fed-
eral criminal statutes make use of the
reason to believe standard, and these
include both the Espionage Act and
Atomic Energy Act. Moreover, five
Federal court cases have upheld the
reason to believe language as constitu-
tional grounds for prosecution. The
most .significant of these cases is that
of Gorin v. United St?tes, (312 U.S. 19
(1941)), in .which the U.S. Supreme
Court upheld the reason to believe
standard in the Espionage Act of 1927
against the defendant's claim that the
language was vague and indefinite-
precisely the same cHarge that is being
made today and with .as little founda-
tion.
While it is true, Mr. President, that
the intent standard is also constitu-
tional and that the. Department of
Justice has stated that an intent
standard would be acceptable, the ad-
ministration, the Department of Jus-
tice, and the CIA have been emphatic
that they all prefer the reason-to-be- -
lieve standard, that reason to believe is
constitutional and is a more effective
prosecutorial tool.
Why is reason to believe preferable
to intent? In order to convict a defend-
ant under the intent standazd, the
burden of proof is far more difficult to
establish and actually requires more
instrusive investigation than reason to
believe. Proof of intent requires in-
quiry into the state of mind of the de-
fendant before or during the commis-
sion of the offense. In the context of
the intelligence identities bi71, it would
also require inquiry into the political
and personal associations of the de-
fendant-whether, for example, he
had been involved with Counterspy or
Covert Action Information Bulletin,
what his attitude toward intelligence
gathering was, and other beliefs and
associations. Since those who oppose
reason to believe on constitutional and
civil libertarian grounds are concerned
about such intrusive inquiries, I would
think they would prefer the far less
intrusive standard of reason to believe.
Reason ~ to . believe simply means
what any reasonable man would be-
lieve. Thus, use of this standard would
not require any intrusive investigation
into a defendant's background nor the
presentation of evidence concerning
his political and personal associations.
For this reason, it is preferable to the
civil libertarian as well as to the pros-
ecutor.
The argument that reason to believe
would have a chilling effect on the ex-
ercise of first amendment rights and
on discussion of intelligence activities
is also without merit and has been
grossl}r exaggerated by .the opponents
of the bill in the -Congress and the
media.
I would point out first that the U.S.
Supreme Court in a 7-to-2 decision this
summer in the case of Haig against
Agee found that:
Agee's. disclosures Cof covert agents],
among other things, have the declared pur-
pose of obstructing intelligence operations
and the recruiting of intelligence personnel.
They are cleazly not protected by the Con-
stitution.
If the disclosure of agents' identities
is not protected by the Constitution,
then a law punishing disclosure of
identities cannot have a chilling effect
on the exercise of legitimate rights of
expression. The chilling effect argu-
ment is therefore without foundation.
However, . the language of the
reason-to-believe section has been
carefully drafted to avoid interference
with legitimate discussion and investi-
gation. It is absolutely essential, Mr.
President, to bear in mind that reason
to believe is only one of the six ele-
ments of proof required for conviction
in this bill.
Section 601, as originally intro-
duced, contains the reason-to-believe
language, which would make it illegal
for a person to reveal the identity of a
covert agent if that person:
First. Knows that the persons to
whom he reveals the information are
not authorized to receive classified in-
formation;
Which tends to support the reason-
to-believe standard as a method of
proof..
But if you go into intent, you get a
chilling effect on expression, .because
you then have to start talking about
the man's of woman's past speech or
activities, which would be directly rele-
vant to proving intent.
Clearly, the specific intent standard
creates a far greater potential for in-
trusive investigations into individual
political beliefs. I do not want to be a
witch hunter, but I think that, in this
particular area, you open that Pando-
ra's box. The witch hunt would be un-
dertaken frequently as the only means
of "establishing intent,.. and perhaps
-more tragically than that .witch hunt-
ing is that the effort _ to establish
intent would all too frequently be ,un-
successful. In spite of the fact that the
accused might be guilty, it would be
unsuccessful... .- - ..
So if we let this erroneous commit:
tee amendment stand, which stood on
a vote of 9 to 8 with .two administra-
tions who are expert in this._ one
Democratic, one Republican, standing
against it with, I have to believe,-much
more expertise and learned - fore-
thought about the constitutionality, I
believe that we will not only be tempt-
ing prosecutors into witch hunts, but
we will be letting down those coura-
geous men and women who risk their
lives on a daily' basis to preserve the
security of this country.
It is the KGB which is laughing at
this debate, and yet it is being con-
ducted on both sides with good will. I
think the statute with the specific
intent standard rather than areason-
to-believe standard would be' counter-
productive. It would purport to pro-
vide asolution to a serious problem of
unauthorized disclosure of intelligence.
identities without actually doing so.
It would raise the specter of the in-
trusive techniques and the witch
hunts. - _
Mr. EAST. Mr.' President, today we
are considering S. 391, the Intelligence
Identities Protection Act of 1981. This
bill, which has almost 50 cosponsors,
of whom I am proud to be 1, is the
most significant proposal for the
reform and strengthening of the Intel-
ligence community that the Senate
has considered this year. I believe that
it is absolutely essential that we pass a
bill that would protect the classified
identities of American intelligence of-
ficers-not just any bill but an effec-
tive law that would deter the exposure
of their identities, one that is both
constitutionally sound and will pros-
ecute those who have specialized in
the contemptible and pernicious prac-
tice of systematic exposures. I believe
that until we pass such a law, there is
little purpose in talking about the
need for a stronger CIA or FBI. In
short, w-e must put our money where
our mouth is.
I wish particularly to address the
issue of the constitutionality. of the
proposed reason to believe, or objec-
 Approved For Release 2007/05114 :CIA-RDP80M00914R001900160047-8
Februariy.25, 1982 CONGRESSIONAL RECORD --SENATE -
Second. Knows that the information
revealed in fact identifies a covert
agent;, _
Third. Intends to disclose informa-
tion that identifies a covert agent;
Fourth. Knows that the Govern-
ment is taking affirmative measures to
conceal the identity;
Fifth. Engages in "a pattern of activ-
ities intended to identify .and expose
covert agents' ;and
Sixth. Has- reason to believe that
such activities would impair or impede
the foreign intelligence activities of
the United States.
In sum, before. a person can be pros-
ecuted under the reason-to-believe lan-
guage, the prosecutor must prove all
five elements of proof in addition to
the reason to believe element. .
Furthermore; one of these elements
is already ari intent standard, and it
must be noted ,that in those parts of
the bill that establish defenses and ex-
ceptions, there are .three areas of dis-
closures that are excluded from any
prosecution,"including the revealing of.
a covert identitg to the.._ House or
Senate Intelligence Committees. -This
latter exclusion- is intended to allow
for the disclosure to responsible au-
thorities outside the intelligence com-
munity of abuses or unauthorized in-
telligence activities without danger of
prosecution to the disclosing party.
To prosecute a journalist who inves-
tigates intelligence activities, there-
fore, the prosecutor must show that
every one 'of 'the elements applies.
There are few if any legitimate jour-
nalisttc investigations i:i which the re=
vealing of names or identities would be
useful, and it should. be noted that the
entire investigation of the Church
committee into -CIA activities took
place without a single revelation of a
covert identity. In other words, pre-
venting the disclosure of agents' iden-
tities would not cripple our ability to
learn of or, prevent intelligence abuses..
It is almost inconceivable, Mr. Presi-
dent, that legitimate discussion of in-
telligence activities could be prevented
or in any aay discouraged by the
reason to believe language that is pro-
posed. '.
I urge my colleagues to join with me
in supporting the amendment of S. 391
to adopt Lhe reason-to-believe stand-
ard that is so necessary for the protec-
tion of our intelligence agencies and
their personnel, for the security of our
country, and for the strengthening
and reform of the intelligence commu-
nity.
(By request of Mr. DENTON tk~e fol-
lowing statement .was ordered to be
printed in the RECORD:)
s Mr. THURMOND. Mr. President,
this proposal to amend S. 391 would
restore the original language of sec-
tion 601(c).
In both versions of the bill, this sec-
tion addresses the situation in which a
-person who does not have direct access
to classified information knowingly
identifies individuals as covert agents
of the United States. Beyond this gen-
eral statement; the technical subtle-
ties of. the separate versions make
them quite distinct, and because I feel
that the amendment offered by the?
distinguished Senator -from Rhode
Island embodies the preferable ver-
sion, Isupport its adoption.
The language of the proposed
amendment reflects the requirement
that a putative defendant be involved
in the course of-a pattern of activities
which is intended - to identify and
It is "obvious -and unarguable" that no
governmental interest is more compelling
than the security of the Nation. Protection
of the foreign policy of the United States is
a governmental interest of great impor-
tance, since foreign policy and national se-
curity considerations cannot neatly be com-
partmentalized.
Measures to protect the secrecy of our
Government's foreign intelligence oper-
ations plaiNy. serve these interests. Thus, in
Snepp against United States, we held that
"[tlhe Government has a compelling inter-
t+ct in nrntonlino hnYH f6n emrnnv nF inin._
section 606(10) of the bill, this re-
quires aseries of acts with a common
purpose or objective. Clearly, then, a
single event of .republication, without
a further showing, probably would
amount to a violation of the act.
Moreover,- this amendment man-
dates that it be proven that a putative
defendant, while participating in such
a pattern of activities, possessed a
reason to believe that these activities .
would impair or impede the foreign in- .
telligence activities of this country.
This standard has been-the object of
much debate and discussion due to its
so-called reasonable man aspect,
which,.it has been said, is a departure
from customary criminal law stand-
ards. However, in the field of espio-
nagelaws, this standard is quite.con-
sistent.
For example, 18 U.S.C. 793(e3 pun-
ishes unauthorized disclosure of na-
tional defense information which the
person "has reason to believe could be
used to the injury of the United States .
or to the advantage of any foreign
nation." Similarly, 42 U.S.C. 2274(b>
punishes. .disclosure of restricted
atomic energy data "with reason to be-
lieve such data will be utilized to
injure the United States or to secure .
an advantage to any foreign nation."
This statute clearly distinguishes
disclosure "with intent to injure the
United States or with intent to secure
an advantage to any foreign nation,"
which is punished under section
2274(a) with more severe penalties.
Therefore, the language of the
amendment is consistent with past leg-
islation where Congress has punished
disclosure without requiring proof of
specific intent, but rather proof that
the reasonable foreseeable result
would be injury to the United States
or advantage to a foreign power.
I believe the amendment of my dis-
tinguished colleague from Rhode
Island not only is consistent with prior
law in this area, but also offers greater
protection for the rights of individ-
uals. It must not be forgotten that in
any prosecution under this act each
and .every element must be proven
beyond a reasonable doubt to the sat-
isfaction of the triers of fact, not only
as to the 1?equisite belief of the wrong-
doer, but also as to his involvement in
a pattern of activity.
I finally want to remind my fellow
Senators of the words of the Supreme
Court when it decided Haig against
Agee this. past June:
maLion so unporLanL to our national secu-
rity and the appearance of confidentiality
so essential to the effective operation of our
foreign intelligence sen~ice." (Citations
.omitted.)
I firmly believe that the interest of
our Government would be afforded
greater protection with the addition of
this amendment to this bill, and I urge
its adoption.o~?
COMMEMORATING ROGER._
WILLIAMS
Mr. S.TEVENS. Mr. President, I ask
that the Chair lay before the Seriate a
message from the House of Repre-
sentatives on Senate Concurrent Reso-
lution 64. -
The PRESIDING OFFICER laid
before the, Senate the following mes-
sage from the House of Representa?
tives: ,. . _ ., _
Resolved, That the- resolution from the
Senate (S. Con. Res. 64) entitled ''Concur-
rent resolution to authorize the Zeta, Beta
Tau fraternity to conduct a reception in the
rotunda of the Capitol on March 31, 1982, to
commemorate Roger Williams for his con-
tribution to religious toleration and freedom
in the United States", do pass with the fol-
lowing amendments:
Strike out all after the resoh~ng clause,
and insert: That appropriate ceremonies are
authorized to be conducted in the rotunda
of the Capitol on March 31, 1982, to com-
memorate Roger Williams for his contribu- .
tibns~to religious toleration and freedom in
the United States. These cerezrionies shall
be conducted in accordance with conditions
prescribed by the Architect of the Capitol:
Amend the title so as to read: "Concurrent
resolution to authorize ceremonies in the ro-
tunda of the Capitol for March 31. 1982, to
commemorate RogerWilliams for his con-
tributions to religious toleration and free-
dom in the United States.".
Mr. STEVEN5. Mr. President, I
move that the Senate concur in the
House amendments.
The PRESIDING OFFICER. The
question is on agreeing to the motion.
The motion was agreed to.
The PRESIDING OFFICER.. The
question is on agreeing to the concur-
rent resolution.
The concurrent resolution, ,
amended, was agreed to.
Mr. STEVENS. Mr. President, I
move to reconsider the vote by tivhich
the concurrent resolution, as amend-
ed, was agreed to.
Mr. BIDEN. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
agreed to. ..