INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200030006-7
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 31
• Document Creation Date: December 21, 2016
• Document Release Date: December 1, 2008
• Sequence Number: 6
• Publication Date: March 1, 1982
• Content Type: OPEN SOURCE

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S 1230
CONGRESSIONAL RECORD - SENATE March 1, 1982
dren's children to rage rage against
the dying of the light.
I do not have any ? reads answers.
Certainly. our strategic negotiations-
need to be Invigorated. In addition, we
need to begin talking about this prob-
lem. We need to confront it, to face up
to it. The extinction of the world,
whether it be merely a remote possi-
bility or a near certainty, is the great-
est moral challenge in the history of
humanity. The fact that we avoid talk-
ing about it, the fact that we do not
look upon our strategic negotiations
with the Soviets as the single most im-
portant' responsibility of our Govern-
ment the fact that we allow our allies
cords. a right denied to Lev and Nadya
Ovsischer and to so many others like
them.
Mr. BAKER. Mr. President, I sug-
gest the absence of a quorum.
The ACTING PRESIDENT pro tem.
pore. The clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. CHAFEE. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The ACTING PRESIDENT pro-tem-
pore. Without objection, It is so or-
the enormous potential for error and
miscalculation. The SALT process has
been worth the effort. For example,
through SALT both sides have avoided
the general deployment of antiballistic
missile systems. But the fact of the
matter is that during the last 12 years,
the strategic forces of the two super-
powers have continued to grow in both
quality and quantity. If present trends
continue-even if both sides continue
to abide by the provisions of SALT II
unilaterally-the number- of warheads
deployed will have almost quadrupled
since the beginning of the SALT proc-
ess 12 years ago. -Greater throw
weights and accuracy. on both sides
continue to destabilize and erode
mutual confidence. The risk of pre-
emptive action is feared.. -
Both sides have increased the devel-
opment of scenarios based on such ex-
tremely dangerous concepts as "winna-
ble" and "limited nuclear wars. In my
view, any thought of "winning" a nu-
clear war is, on its face, insane. One
cannot read the literature which de-
scribes the effects of detonating thou-
sands of megatons of nuclear explo-
sives without concluding that winning
or limiting a nuclear exchange is a
concept without a basis in fact. Setting
aside the unacceptable annihilation
which would be imposed on comba-
tants, the global effects of nuclear war
would be stunning. Among other
things, the world would experience al-
teration of the climate, destruction of
the ozone layer, destruction of the re-
maining human gene pool, global epi-
demics and damage to, fundamental
parts of the food chain. In a full scale
nuclear holocaust, extinction of man-
kind and the devastation of Earth as a
place where living things can grow is a
virtual certainty.
Insofar as tl,.e uses of "limited"
weapons like the neutron bomb or
counterfarce missiles are concerned,
war planners assume a kind of disci-
pline of thought that loses credibility
when one considers the circumstances
which would have had to be present in
the first place to result in the use of.
such awful weapons. Robert McNa-
mara called the use of tactical weap-
ons In the defense of Europe "a vast
unknown." I agree.
The 20th century poet Dylan
Thomas wrote, "Do not go gentle into
that good night, rage rage against the
dying of the light." A nuclear hol-
ocaust would extinguish the light
throughout the world. We are in
danger of blowing ourselves into obliv-
ion.
The Senate is a great deliberative
body. We debate many moral issues
here on this floor. But dealing- with
the economy or national defense or
energy is a meaningless exercise if we
are going to destroy the creation.
Some suggest that there is no solu-
tion to this problem, because the nu-
clear genie is out of the bottle. I refuse
to accept that suggestion. We must
not go gentle into that good night. We
owe it to our children and our chil-
to spread dangerous nuclear materials- CONCLUSION OF MORNING
around the globe like so much ordi- BUSINESS
nary chattel Is the mark of a society The ACTING PRESIDENT pro tern-
that is shirking Its most solemn and pore. Morning business is closed.
important responsibility. We must get
our best minds and our ablest people INTELLIGENCE IDENTITIES
mobilized to deal with this problem PROTECTION ACT OF 1981
and we must accept the burden of this
urgent moral commitment for as long
as we have a world in which to live.
LEV AND NADYA OVSISCHER
Mr. PERCY. Mr.. President, the-
plight of Soviet Jews denied the right
to emigrate is always on our minds.
We learn the names of these individ-
uals from their relatives and friends
and from others concerned about the
denial of their rights. I wish to draw
the attention of my colleagues today
to the case of Lev and Nadya Ov-
sischer.
Eleven years have elapsed since Lev
Ovsischer and his wife Nadya first ap-
plied to emigrate to Israel. Since then
they have been continually harassed
by the KGB, their telephone has been
disconnected and correspondence has
been stopped from reaching their
home. Colonel Ovsischer, a highly
decorated fighter squadron command-
er in World War II, has been stripped
of his military rank and deprived of
his pension.
Lev and Nadya Ovsischer simply
seek permission to emigrate to Israel
where they can join their daughter,
live freely and practice their religious
faith., The Soviet Government claims
that Lev Ovslscher possesses military
secrets. However, he is 20 years re-
moved from service in the army and
therefore this claim is ludicrous.
Thirty-nine years ago, on March 5.
the Nazi occupiers murdered 5,000
Jewish residents of Minsk, the same
city in which Lev and Nadya Ovsischer
now live. Eleven years ago, also on
March 5, the Ovsischers applied for
exit visas. Families in six American
cities and five other countries are
planning to take special note of the
anniversary this year. In remembering
the genocide of the past, we must also
note that basic human rights are trag-
ically denied by the Soviets at present.
I urge my colleagues to join me in
appealing to the Soviet authorities to
observe the right of family reunifica-
tion guaranteed in the Helsinki ac-
The ACTING PRESIDENT pro tem-
pore. The Senate will now resume con-
sideration of S.- 391. which the clerk
will state.
The assistant legislative clerk read
as follows:
A bill (S. 391) to amend the National Se-
curity Act of 1947 to prohibit the unauthor-
ized 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.
The ACTING PRESIDENT pro tem-
pore. The Senator from Alabama is
recognized.
Mr. DENTON. Mr. President, I
notice that the Senator from Delaware
is here and we have, with his permis-
sion, one more statement at this time
by the Senator from North Carolina
(Mr. EAsT), who is on the floor. I
should like to turn the floor over to
the Senator from North Carolina.
The ACTING PRESIDENT pro tem-
pore. The Senator from North Caroli-
na Is recognized. ,
Mr. EAST. Thank you, Mr. Presi-
dent.
I shall be brief this morning. I wish
to take a few minutes to speak on
behalf of the amendment that our dis-
tinguished colleague from Rhode
Island (Mr. CHarzn) is offering to S.
391. Before turning to that task, I
should like publicly to congratulate
and thank Senator CHnrzs for the
great leadership he has shown in this
whole bill. Ile has shown great energy
and great patience over a long period
of time and we are all indebted to him
for that effort.
I should also like publicly to compli-
ment Senator DENTON, who chaired
the subcommittee hearings on this
matter, for his excellent leadership.
And, of course, we are all indebted to
Senator THURMOND, chairman of the
Committee on the Judiciary, for the
leadership he has given us in getting
this measure out of committee and
now onto the Senate floor.
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CONGRESSIONAL RECORD - SENATE S 1231
We have many colleagues who have
supported us in this effort, Democrats
and Republicans-it is not a partisan
effort-so there are many people who
deserve to be publicly commended for
their effort on behalf of this legisla-
tion. I simply wanted at the moment
to note the great contribution of those
Senators.
Mr. President, there is general agree-
ment that this legislation, S. 391, Is
needed to provide protection for CIA
agents involved, of course, in covert ac-
tivity, not to allow them to be identi-
fied and to impair and impede the for-
eign intelligence activities of the
United States which certainly is perni-
cious and unconstitutional action.
Needless to say. it has jeopardized the
lives of the agents involved. I repeat,
there is a general acknowledgment of
the need to do something to protect
these agents and thereby to protect
the best interests of the United States
in the very difficult kind of world in
which we live. Again,' it was the fore-
sight of Senator CIL rzz which pressed
this matter to final fruition here.
The nub of our problem, Mr. Presi-
dent, is not over whether to have legis-
lation. There is general agreement
that we ought to have It. The nub of
the problem is what kind of language
we ought to use on page 3 of the stat-
ute or. more particularly. title 6, sec-
tion 601(c). That is the focus of this
debate at the moment and that Is the
essence of the so-called Chafee-Jack-
son amendment.
Let me try to explain why I think it is
critical that we follow the lead of Sen-
ator CHArsr in this very important
matter. It may seem to those who
have covered this matter casually that
there is not much of a distinction
here, it is not important that we pick
one over the other. I feel very strongly
that Senator CHAFES and those sup-,
porting him, cosponsoring this bill, are
correct, that there is a fundamental
difference here. We ought to address
ourselves to it,and we ought to sup-
port him in this effort to amend S.
391.
The language that is currently in
the measure that Senator CHAP=
seeks to change says:
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 United States by the
fact of such identification and exposure, dis-
closes to any Individual not authorized to re-
ceive classified information, any informa-
tion that identifies an Individual as a covert
agent, knowing that the information dis-
closed so identifies such Individual and that
the United States is taking affirmative
measures to conceal such individual's classi-
fied Intelligence relationship to the United
States, shall be fined not more than $15,000
or imprisoned not more than three years, or
both.
The critical language here in ques-
tion is "with the intent to impair or
impede the foreign intelligence activi-
ties of the United States."
The change that would come about
by the Chafee amendment is that, in
lieu of "with intent to impair or
impede the foreign intelligence activi-
ties of the United States," it would
read. "Whoever, in the course of the
pattern of activities intended to identi-
fy and expose covert agents and with
reasons to believe that such activities
would impair or impede the foreign ac-
tivities of the United States," and so
forth.
The critical language here is wheth-
er you have the "intent to impair or
impede" language or the language
that reads "with reason to believe."
Why make the distinction? Is it fun-
damental? Is it important? I submit it
Is. Why?
Mr. President, I feel we run the risk
of aborting the effectiveness of this
legislation if -we do not make the
standard the reason-to-believe stand-
ard. Why so? If you put in the intent
standard, very likely this is the scenar-
io you will get In a criminal prosecu-
tion under this legislation:
The defendant will contend, among
other things, that his intent in reveal-
ing the name of an agent-in meeting
all the other requirements under the
act for criminal prosecution and con-
viction-he will very likely contend
through innovative lawyers, of . which
there are many in this country in
terms of defense attorneys, that his
intent was not to impair or to impede
the foreign intelligence activities of
the United States but was in fact de-
signed to assist, aid or abet it by re-
vealing the incompetence of an agent,
for example, or by revealing that he
was engaged in certain kinds of prac-
tices that, according to the informant,
he should not have. been.
Then you force the court, the jury,
and the judge to get Into this very dif-
ficult area of determining what the
subjective state of mind, what was the
intent.
It would be a great tragedy to let
this legislation be passed, meeting a
need we all agree needs to. be met, and
then have it fail in the courts of this
country of confusion of language. The
intent standard will cause that kind of
confusion.
If you have the reason-to-believe
standard, it is a reasonable man's
standard. It is a good standard. It is a
standard that has been used previous-
ly in legislation. It is a standard that
has been upheld by the U.S. Supreme
Court. There is not any question as to
its constitutionality; and if there is, we
can always argue this up one side of
the road and down the other, as re-
gards whether I think it is constitu-
tional or someone else does not.
Ultimately, of course, the courts will
determine It. But based upon what the
courts have done already in this area
and based upon the previous legisla-
tive record, this is solid language. It is
good language. It is constitutional lan-
guage. What it will do is allow the
court, the jury, and the judge to look
at all the circumstances and to deter-
mine if a reasonable man would con-
clude that in doing what this inform-
ant did, the purpose was, again, to
impair or impede the foreign intelli-
gence activities of the United States.
There is a minimal risk, then, that
this important legislation will be ren-
dered ineffectual in the courts. That is
the essence of this debate. over the
nature of the language that we ought
to be including here.
So, I strongly urge my colleagues to
support the amendment of Senator
CHAS, Senator JACxsoN, and others
who have cosponsored it. It is soundly
conceived. it deals with a genuine
weakness in the current legislation.
Let me try to simplify It and make it
as concise as I can, as I understand the
problem.
First, as I have indicated, there Is a
genuine need, in terms of national se-
curity, to stop this insidious. perni-
cious practice of the Philip Agees and
others of taking. the names of covert
agents, revealing them to the public.
and then watching these people shot
down or shot at or harmed, and not
only killing these very dedicated
Americans but also jeopardizing the
national security interests. of the
United States.
I repeat: It is conceded across the
political spectrum here, across party
lines, that there is a genuine need.
The problem Is that if you adopt the
language that is currently in the bill
before the Senate and do not accept
the Chafee amendment, there is a very
strong risk that the bill will be ren-
dered, as I have said, ineffectual. You
will fall short. It will be a sense of
false security. We will -think we have
provided protection for these gentle-
men and\for the national security In-
terests of the United States, but in
fact we will not have done that.
I submit, Mr. President. that we
ought to err on the side of protecting
these gentlemen and protecting the
national security interests. A funda-
mental way we do that is by adopting
the language of the Chafee amend-
ment.
So, I implore my colleagues-I prom-
ised to keep this brief-to support Sen-
ator CHAPELS on this matter. I often
feel, In trying to evaluate the worth of
a measure, that you consider the gen-
tleman who has been actively support-
ing this entire measure all along-
again, Senator CHAFES.
Senator CHAP= has a great personal
and professional background in this
area, formerly having served with
great distinction as Secretary of the
Navy. He understands the importance
of gathering foreign intelligence. He
understands in a firsthand way the
role of the CIA in foreign intelligence
activities.
Second, he has served with great dis-
tinction in the U.S. Senate. I do not
think Senator CHAFES needs to yield to
anyone in his great concern about the
status of civil rights in this country.
No one is attempting to deny the civil
rights of anyone in terms of freedom
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S 1232
CONGRESSIONAL RECORD - SENATE March 1, 1982
of speech or press. As I believe Justice
Jackson said one time,
The first amendment is not a suicide pact;
it means we can take reasonable measures
to serve important national interests.
There is no national interest of
greater importance than national se-
curity. Whatever intrusion there may
be upon first amendment rights here,
they are modest. and gentle and con-
sistent with the overriding need to
protect the great national security in-
terests.
Because of my great confidence in
Senator CHAFES, I was eager, early on,
to support this particular amendment.
He, of course, has attracted to his
cause, which he invariably does, distin-
guished bipartisan support, Senator
JACxsoN of course, being a key figure
in this, as well as many others.
As I have said, it is not a partisan
issue. It is not an idealogical issue. It is
a fundamental question of the legiti-
mate need of national security.
So, I urge my colleagues to support
it because, again, of the great integrity
of Senator CHAFES, who is behind it,
and his great expertise in this area.
I also point out to my colleagues
that the House of Representatives has
already passed a measure that has the
Chafee language in it. If we proceed
and accept it now through his amend-
ment, we will have a bill precisely like
the House bill. We will not have to go
to conference. The President has al-
ready indicated that he would sign
this measure. He is very enthusiastic
for it.
If we will accept the Chafee amend-
ment, we can get this act through. The
House has already passed it. We can
then get on with the very important
task of providing protection for our
CIA agents, our foreign intelligence
apparatus, and thereby contributing
immeasurably to the national security
interests of the United States.
In conclusion, Mr. President, in addi-
tion to the distinguished gentlemen I
have already referred to who are sup-
porting this measure, I offer this long
list of those who are supporting the
Chafee language: the current adminis-
tration, the current Justice Depart-
ment, the CIA, the FBI, the House of
Representatives, former President
Carter, and the Carter administration.
Again, there is broad and deep biparti-
san support for the Chafee amend.
ment. I urge my colleagues to serious-
ly consider it, and I do implore them
to accept it.
I have no further remarks, Mr.
President.
Mr. BIDi;N. Mr. President, I should
like to know if the Senator from
North Carolina would yield for a
couple of questions.
Mr. EAST. Mr. President, I will be
happy to yield to the Senator.
The PRESIDING OFFICER (Mr.
Boscxwrxz). The Senator from Dela-
ware.
Mr. BIDEN. The Senator makes a
very reasoned argument for his posi-
tion, and I compliment him for that.
Throughout his brief discussion of the
issue today, he used the assertion that
there is a strong risk that the bill
would fall short of its stated purpose;
that is, to get those folks who are just
out to uncover, expose, and damage
our intelligence apparatus-if we had
the intent language which is in the bill
now, rather than the reason-to-believe
standard.
I wonder if the Senator could tell me
why the intent language would fall
short. Can he give me an example of
how he believes having the word
"intent" In the language, the intent to
impair or impede would cause the bill
to fall short of its objective? That is a
very important point. If he is right
about that and can convince me, I
would have to vote with the Senator
from Rhode Island.
Mr. EAST. The distinguished Sena-
tor from Delaware raises an excellent
point and always, as is the case with
him; he goes to the essence of the
problem.'
Let me try to respond in this fash-
ion: First, before turning directly to
his excellent point, let me say that in
section (c), with the inclusion of the
Chafee language, I submit very stren-
ously we do have in effect an intent
standard overall. For example, it
would say, "Whoever in the course of
a pattern of activities intended to
identify," and then later on it says
"knowing that the information dis-
closed so indentifies." Certainly sec-
tion (c), as it reads now, would require
a mind set of a conscious desire to
identify and expose.
Then we come to the very important
point the Senator raises. Why not say
"with- the intent to impair or impede
the foreign intelligence activities of
the United States" rather than
"reason-to-believe that such activi-
ties," because it would leave us with
this very difficult position in the court
and before the jury?
I can see now the kind of people who
reveal these names with an innovative
lawyer would come up with, this kind
of rationale:
My purpose in doing all of this, my intent
was not to impede or impair the foreign in-
telligence activities of the United States,
but actually my intent was a noble one. It
was by identifying these people I would be
revealing their incompetence or the poor
way in which they carried on their activi-
ties. So my intention would not be to impair
or to impede, but my intention would be in
the near and long term to further intelli-
gence gathering.
That is clever, novel, and innovative,
and they would do it. And the court
would have no alternative but to so in-
struct the jury.
So I think with the reason-to-believe
standard, what it would give is it gives
us a more objective standard whereby
the jury and the judge could look at
the whole and not have to get into the
impossible task of judging this elusive
state of mind of the informant in this
case. As to the Philip Agees and their
lawyers, never underestimate the fur-
tiveness of their legal ingenuity.
I want to put these people in a box
where if they knowingly reveal these
names and they intended to identify,
and so on and so forth, and that a rea-
sonable person looking at the whole
would conclude clearly notwithstand-
ing their very subjective intent that
what they really intended to do was to
impede or impair. I want effective leg-
islation in short, and I think the
Chafee language would give it.
Mr. BIDEN. I appreciate the answer.
I assumed that was the Senator's posi-
tion.
Let me respond, if I may, to the
answer just given. First of all. I think
it is important for our colleagues to be
aware that although the reason-to-be-
lieve standard, as the Senator from
North Carolina says, appears to be an
intent standard, the intent mentioned
in the reason-to-believe language-and
let me take a moment to read it once
again so we are talking about the same
language. It says: "Whoever in the
course of a pattern of activities intend-
ed to identify or expose." The intent
goes to the question of identifying or
exposing.
The intent does not go to the moti-
vation for the exposure or Identifica-
tion.
Then it goes on to say-and I realize
this is somewhat esoterical unless one
really concentrates on it-all that
needs to be done to establish the
name. That was not accidental. When '
they published the name Joe Doaks'
they meant to put Joe Doaks, name in
it.
Then it goes on to say that that in-
tended exposure was done with the
reason to believe that such activities
would impair or impede.
So there are two different standards.
Intend goes to the question of the ex-
posure. It does not go to the question
of motivation: That is an important
distinction.
The second point I wish to make is
that the Senator makes a very elo-
quent plea, as was made on Friday,
that the reason-to-believe standard
puts people-the jury in this case-in
the position to be able to look at the
totality of the circumstance and that a
reasonable-man standard really would
be applied.
So we ask the jury: "Do you have
reason to believe from all that has
been said here that it was the desire of
this fellow Philip Agee, or whoever, to
hurt U.S. intelligence operations: that
is, to impair or impede?"
Now, that is true. They can look at
the totality of the circumstance. But
my point is that when we say that we
are led to believe by the Senator from
North Carolina-and he believes it-
and others, that if you have an intent
standard, the jury is not able to look
at the totality of the circumstance.
They imply. The opposition to the
intent language says that if in fact you
have an intent standard, saying that
the prosecutor has to prove that John
Doe intended to impair or impede
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rather than have reason to believe it.
would impair or impede, what they
would do is to allow skillful lawyers to
Instruct their clients or allow defend-
ants without instruction tosay:
Why I didn't Intend to hurt. I intended to
help and when I named Joe Doaka as the
CIA agent r was doing It to help purify the
agency, to better our intelligence-gathering
capabilities and thereby put America In a
stronger position and not Impair or Impede.
That is true. They can make that ar-
gument, but I suggest that the same
argument can be made with the
reason-to-believe standard. I am going
to be that sharp lawyer who Is advis-
ing my client Joe Doaks under the
reason-to-believe standard` and Joe
Doaks gets up on the stand and I ask
him on direct examin_ation,, L say.
"Now, Joe; did you have reason to be-
lieve that you were impairing or Im-
peding the intelligence apparatus of
the United States of America?-
And Joe Doaks will look me straight
in the eye and say: "Oh, no, counselor,
no, ladies and gentlemen of the jury, I
didn't mean to impair or Impede. I had
reason to believe that what I was
doing would help America. I had
reason to believe by pointing out that
Charlie Smith was an agent that I was,
doing It to uncover a mole within the
agency or any reasonable man could
understand that I had reason to be-
lieve that I was helping."
The point I am trying to make to
you is what is sauce for the goose is.
sauce for the gander. It Is a red her-
ring to suggest that if you have an
intent standard it allows the defend-
ant to argue he intended to. help. If
the defendant would argue that he in-
tended to help America, under the
intent standard, he will also argue he
intended to help America under the
reason-to-believe standard. It is Irrele-
vant, quite frankly, whether or not
there is an intent or reason-to-believe
standard as it relates to what argu-
ment the defense will make. The de-
fense will be equally ingenious under
both standards.
My problem is: With the reason-to-
believe standard we put ourselves in a
position that we jeopardize convic-
tions, in my opinion, because we are
clear, the courts are clear, that the
reason-to-believe standard makes It
easier for judges to set aside jury ver-
dicts than with the intent standard.
The reason-to-believe is an objective
standard which is generally more re-
viewable by judges than something
subjective like the defendant's intent.
Also an area that I will not yield to
any man or woman in this Senate,
since I know as much about it as any-
body, is in the whole area of greymail.
The greymail occurs when former
agents, present agents who have access
to information, and/or people who
gain access to information from out-
side the Intelligence community reveal
information that hurts Americas in-
terests.
When they are about to be prosecut-
ed, they say: "Let me tell you some.
thing, Mr. Prosecutor, Mr. U.S. Attor-
ney, if you prosecute me for telling
the Russians the secret to that satel-
lite you are going to have to prove
that I had reason to believe that that
would hurt America, and since that is
an objective standard, I want to tell
you right now what I am going to do. I
am going to, during that trial, reveal
every other secret I know because it
will be admissible in open court, be-
cause we are trying to find an objec-
tive standard. and i will be able toy in
order to justifiably bring forward my
defense, reveal every other secret I
know about the Government. to prove
that an objective person with a, series
of circumstances relating to the intelli-
gence community would have conclud-
ed as I did, which was: Knowing all I
know, they would have reason to be-
lieve that the final action I took of
publishing Joe Doaks' name was done
to better America rather than hurt
America's Intelligence capabilities."
When you have an objective stand-
ard, the court is obliged as a matter of
law to go beyond what I intended, to
go to the totality of the circumstances.
However. if there were an intent
standard, the evidence would be inad-
missible because it would be irrelevant.
So my well-intended colleagues, who
want to nail down these guys who are
the bad guys we all want to get, are in-
advertently putting a standard into
the law that is unusual at best, makes
it more difficult to maintain a prosecu-
tion, and subjects the Justice Depart-
ment in certain circumstances to being
blackmailed or as we call it grey-
mailed, because if they know they are
going to have to allow thorough dis-
covery-a legal term all the lawyers in
this body know about, thorough dis-
covery-including evidence of other
classified information. They are going
to have to sit back and ponder, as they
have in all the other greymall cases:
Wait a minute, Is It worth it in order to
convict Charlie Smith to reveal even more
of our secrets which. under our legal
system. we have to do?
They get blackmailed into dropping
the case. ;
Why do you think they did not pros-
ecute Mr. Helms and a number of
other espionage and leak cases beyond
what was done?
Why do you think they have not
prosecuted all the folks? Not because
they have liked them, or liked what
they have done, but under our system
of law under an objective standard
they are allowed to go in court and in-
troduce in evidence by discovery-that
is, ask the prosecution to put in the
record-material that is even more
damaging to our national security
than that which they exposed.
But when you are talking about
intent, you do not have the problem of
greymaik The court says:
When Charlie Smith revealed the name of
that agent did he intend to hurt the inter,
ests of the United States of America? Did he
intend to impair or impede?
51233
In the same way when we say in a
criminal trial:
When John pulled out the goo and shot
Cock Robin did he intend to kill Cock
Robin?
John can argue.
I didn't know the gun was loaded
He can argue self-defense. he can
argue that he had taken leave of his
senses, he did not intend It, he can
argue all those things, but the fact of
the matter is that the jury looks at all
the circumstances and says:
Did be intend to do it?
To prove intent you do not have to
have the defendant say, "Yes. I In-
tended it." The totality of the person's
conduct is sufficient to establish
intent. It can be inferred.
The press had better be concerned If
this reason to believe language is
adopted. I would like to know frama my
colleagues who support the reason to
believe standard, the answers to the
following questions:
A 'February 18, 1977, WashIngton
Post article by Bob Woodward dis-
closed that the CIA had made secret
payments to King Hussein of Jordan
for the past 20 years. A subsequent
story by New York Times reporter
David Binder on February 19, 1977,
named 14 additional foreign leaders or
officials who had received CIA pay-
ments.
Will they go to jail if we adopt a
reason to believe standard? I would
like to know whether they will or not.
Is that the intent of the language, to
put Binder and Woodward In Jail?
A report of an extensive investiga-
tion by John Crewdson into CIA prop-
aganda efforts and ties with the media
appeared in the New York Times on
December 25, 26, and 27, 1977 In it
were identified over 25 CIA officials,
agents, and sources of assistance
Does that person go to jail for pub-
lishing that information? Is that the
type of publication we are trying to
punish? Carl Bernstein's article. "The
CIA and the Media' (Rolling Stone,
Oct. 20, 1977, pp- 55-67) claimed that
over a 25-year period, 400 American
journalists maintained secret relation-
ships with the CIA, and included the
names of 11 journalists who were in-
formants or sources of assistance.
Is Bernstein going to jail under the
reason to believe standard?
A January 23, 1976. New Times arti-
cle by Frances FitzGerald on CIA
campus recruitment disclosed the
identity of a Chicago-based CIA re-
cruiting agent. Are we trying to put
FitzGerald in Jail? Will FitzGerald go
to jail under the- reason to believe
standard? I have a list of something on
the order of 100 or so similar articles.
These are not idle questions. It is not
just something we should shirk off.
I will yield because one of my col-
leagues would like to speak to this
issue and he has other business off the
floor-but let me point out that there
are three elements to the reason to be-
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S 1234 CONGRESSIONAL RECORD - SENATE March 1, 1982
lieve standard: First, a pattern of ac- language either. I think the Senator is law professors who object to the whole
tivity; second, with an intent to identi- correct. concept.. -
fy or expose; and, third. with a reason To be precise, the language at the Mr. BIDEN. That is not correct. If
to believe the activity would impair or time at which they were writing is the the Senator will permit me, let me
impede the foreign intelligence activi- language Senator CHAFES is attempt- read from the letter.
ties of the United States. lug to put back into the bill. As the Mr.- CHAFEE. I think that can be
I want to emphasize for the record Senator will recall, We have a situation well gathered. As you admitted in our
once again that the testimony is thor- where the original language contained little colloquy, there is nothing to sub-
ough, encompassing over 2 years, first, in the bill was the language the Sena- stantiate the view that these gentle-
that a pattern of activities is estab- tor wishes to put in now. That was men and ladies, professors, distin-
lished by the publication of a single amended out of the bill in the Judici- guished professors, are for your ver-
name if, in fact, you went out and ary Committee so that the bill before sion of the bill.
talked to a bunch of people to get to us now has the intent standard. Mr. BIDEN. One thing leads me to
that one name. Second, in the intent ' But I think the Senator is right, that conclusion. Let me read from
to identify or expose, the intent goes that there is a very serious question as Philip Kurland's letter, the letter that
to the. identification not the motiva- to whether or not any disclosure of preceded the submission of the 100 or
tion; and, third, reason to believe is an any name of any agent that could be so distinguished professors. He says:
objective standard which I firmly be- found from public records is in fact can frame
oresponse pinion to to the your request. I can of
lieve, as do' over 100 constitutional able to be proscribed under the Consti- in
scholars believe, to be unconstitution- tution. 501(c) precisely. I have little doubt that it is
al. But even if it is not, it makes it Mr. CHAFEE. I think that is very ? unconstitutional. I cannot we how a law'
more difficult to get a prosecution and important, Mr. President, because we that inhibits the publication. without mali-
not easier. do not want to sail under any false cious intent, of information that is in the
I will amplify that point as the after- colors around here. Concerning the public domain and previously published can
noon goes on, but in deference to my list of these 100 professors-and by be valid.
colleague from Missouri I will yield the mere fact that they are professors I think it is fair to infer from that
the floor. we will call them distinguished profes statement that having an intent stand-
Mr. CHAFEE. Mr. President, last' sons, giving them the benefit of the and in that section . would, in fact,
Thursday in the discussion we had be- doubt-there is nothing that can-, be remedy the constitutional dilemma.
tween the distinguished Senator from used successfully by the Senator fm Let me read it again:
Delaware and myself, the Senator Delaware to further his case because I have little doubt that it is unconstitu-
from Delaware submitted for the these professors are against the entire tional. I cannot see how a law that inhibits
REcoxn a letter dated September 25, section, and they urge that it be de- the publication, without malicious intent-.
1980, from Philip B. Kurland. and a leted.
series of names of 100 law professors There is nothing about amending. So is what t he reason is to believe specifically lly referring
refer
which were, I believe, part of that They are opposed to the whole con-
letter. cept, as they say, of disclosures based Let me make it clear, there are many
In any event, my question is directed upon unclassified information. In this country who believe we should
to the Senator from Delaware regard- Furthermore, the Senator from not have any laws at all on this issue
ing that list of law professors. The Delaware submitted a letter from a as a matter of policy. We are talking
reason that the list of law professors professor at the Harvard Law School- about the limited questions of wheth-
was submitted was to show that they at least he has a Harvard Law School er or not it is constitutional. The 100
indicated disapproval of the so-called heading on his letter-Laurence H. professors say that the only thing sub-
Chafee-Jackson amendment. Tribe, dated September 8, 1980, direct- mitted to them, the only thing before
As I read the REcoan, I read as fol- ed to Senator KENrinnY. Mr. Tribe goes them, was the language of 601(c) as it
lows, and this is a preface to the signa- through a long discussion and he ends is now being proposed in Senator CHA-
tures by the 100 professors: up by saying: - ac's amendment. That is, a reason to.
We believe that sections 601(c) of S. 391 I believe that section 501(c) would violate believe standard.
and 501(c) of H.R. 4, which would punish the first amendment if enacted. According- Mr. CHAFEE. Mr. President, may I
the disclsoure of covert CIA and FBI agents ly. I recommend that at least this provision make another point here?
derived solely from unclassified informa- of section 501 be deleted from S. 2218. Mr. BIDEN. Surely.
tion, violate the first amendment and urge
that they be deleted. Again, this is a question of deletion. Mr. CHAFEE. It is not clear whether
Mr. President, my question of the There is no question of amendment. those 100 names were included with
Senator from Delaware is as follows: As we all know, here, the Senator the Kurland letter, or where they
These 100 professors are not against from Delaware voted for this legisla- came from. That is certainly not clear.
the Chafee language; they are against tion- when it came out of committee, Mr. BIDEN. The Senator is correct,
the Chafee language and they are and it came out unanimously from the it is unclear. Keep in mind that when
against the Biden language, both. Judiciary Committee. Am I not cor- these professors signed the letter to
Is that not so? If it is not so, how is it rect? suggest 601(c) of S. 391 was not consti-
that they urge that the entire section Mr. BIDEN. Yes; but let me make it tutional, there was no other alterna-
601(c), to which they refer as dealing clear- tive. I was unable to get anyone to
with unclassified information, forbid- Mr. CHAFEE. Let me finish. The agree to intent language or anything
ding the disclosure, be deleted? Why Senator voted for the legislation when else.
do they so refer if they are not against it came out of committee after it had The reason I came up with the
both? been amended pursuant to the Sena- intent language was to get around
Mr. BIDEN. The reference ? that was tor's amendment? what was the opposition of many of
made was to what was then the Mr. BIDEN. Correct. these professors. Although the Sena-
Chafee language. The bill to which Mr. CHAFES. So you are supporting tor is precisely and technically correct
they referred and at the point of time language which merits an indictment that the letter does not speak to the
in which they were writing, section based upon disclosure of identities de- intent language, by implication. from
601(c) was the language - Senator rived from unclassified information. the testimony which we are now gath-
CHAFEE is attempting to reinstate in That is what your 601(c) is all about. ering-it can be inferred from their
the bill. In all candor, although they There in no question about that. No testimony and also from the letter of
did not directly speak to the question one will argue with that. Professor Kurland, that the main defi-
of whether or not "intent" clarifies Mr. BIDEN. That is correct. ciency they saw in there was not an
that constitutional question, I suspect Mr. CHAFEE. Yet you are citing, intent standard. That- is how I came
that they are not supportive of that presumably to support your case, 100 up with the intent standard. That Is
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CONGRESSIONAL RECORD -SENATE S 1235
how I came up with an alternative for qualified to speak to these issues, and
reason-to-believe. I believe his letter is valuable to us.
But the Senator is correct that they The PRESIDING OFFICER. Is the
did not speak to the intent language Senator requesting unanimous con-
because it was not even on the horn sent?
zon. It was not an issue at the time. It Mr. CHAFES. I ask unanimous con-
was not an alternative. sent that that letter from Mr. Bork be
Mr. RUDMAN assumed the Chair. printed in the RacoRD.
Mr. CHAFES: Mr. President, I think There being no objection, the letter
we want to put this whole thing In was ordered to be printed in the
perspective here. What the Senator 6 RscoIW, as follows:
from Delaware is relying on is a series Sz nwamt 2,1980,
of letters written in 1980, 1 k years
ago. As he pointed out, what we were
discussing then, and indeed, we had
presented under the original legisla-
tion a section 501(c) that did Involve
an intent somewhat like the Senator's
language. But we worked that around
because there seemed to be problems.
The original legislation introduced by
Senator Mor smax. Senator Jacasox,
and myself in January 1980, over 2
years ago,\dealt with language quite
similar to the language that the Sena-
tor from Delaware is now espousing.
These professors are against the whole
idea There is no question about that.
I refer now to a telegram dated Sep-
tember 2, 1980, right In that same
period when these lists were being as-
sembled. This is a telegram that is
signed by many of those who are also
on the list of 100 names. This is the
telegram they sent to Senator Kslvuas-
DY on September 2, 1980.
We believe that section 501(c) of H.R.
5651 and S. 2216, which would punish disclo-
sure of the Identity of covert CIA and FBI
agents derived solely from unclassified in-
formation, violates the first amendment and
urge that it be deleted as recommended by
the House Judiciary Subcommittee on Civil
and Constitutional Rights.
So I think these 100 names repre-
sent a weak reed for the Senator from
Delaware to rely upon. These named.
as I say, are opposed to the whole con-
cept that the Senator himself voted
for.
After all, what we are discussing
here is section 601(c). There is no
other argument against this legisla-
tion. These gentlemen and ladies, dis-
tinguished law professors. are opposed
to it all, however. I think that this is
pretty clear.
Mr. President, just to show that, as
one can with economists, as one can
with accountants, and as one can with
Senators, one can with lawyers and
law professors find divergence over
what is constitutional and what is not.
I therefore submit for the RscoaD a
lengthy letter from Robert Bork, pro-
fessor of law at Yale University, in
which he says that either language is
constitutional-the amendment lan-
guage, so-called Chafee-Jackson lan-
guage, or the committee language. We
go on quality around here, Mr. Presi-
dent, of course, not numbers. We do
not go by quantity. I believe that I am
correct in saying that Professor Bork
is now a member of the judiciary of
the United States. I believe he serves
on the circuit court, but it might be
the district court. In any event he Is
Hon. Prams W. ROD MO,
House Judiciary Committee
Washington, D.C.
Drsa Coz+ca=ssxw Ronuvo: I am writing
to you In support of the passage of the in-
telligence Identities Protection Act of 1980,
and more particularly, to address some of
the Constitutional Issues which have arisen
In the consideration of this bill.
I will not address the question of the need
for such legislation. The Deputy Director of
the Central Intelligence Agency and others
from the Administration have testified on
this point before various Congressional com-
mittees. I will merely reiterate my own view
that such protection Is needed and that the
record appears to demonstrate that agents'
lives have been placed in jeopardy and Intel-
ligence operations have been adversely af-
fected by unauthorized and unwarranted
disclosures of agent identities:
I would like to address instead three issues
relating to the constitutionality of the var-
ious bills before Congress. These proposals
include H.R. 5615, S. 2216, and various ver-
sions as amended In committee mark-up. I
will concentrate on Section 501(c), the most-
discussed section. I am basing my analysis
on the House and Senate reports on these
two Acts, dated August 1. 1980 and August
18, 1980, respectively, I have also reviewed
the statements of Director Carlucci before
the Senate Committee on Intelligence on
June 26, the statement of Assoicate Deputy
Attorney General Robert Keuch before the
Subcommittee on Civil and Constitutional
Rights of the Committee on the Judiciary,
House of Representatives on August 19, and
the statement of Frederick T. Hits, Legisla-
tive Counsel of the CIA before the same
committee on the same date.
The first important step for legislation to
take, if it is to pass Constitutional scrutiny.
is to narrow the definition of those persons
who may be considered offenders under the
Act. Both the House and Senate bills do so,
but through different mechanisms. The
House bill includes a so-called "dual intent
standard' in 501(c), which says "whoever, In
the course of an effort to identify and
expose covert agents with the Intent to
impair or impede the foreign intelligence ac-
tivities of the United States, discloses. with
the intent to impede the foreign intelligence
activities of the United States, to any indi-
vidual not authorized to receive classified
information, any information that Identifies
a covert agent.... " Such a dual intent
standard would obviously place significant
burdens of proof on any prosecution. in
doing so. it would therefore narrow the pos-
sibilities of abuse and avoid problems of im-
permissible vaguenss of definition of those
who are subject to its terms.
The Senate version of this provision, also
Section 501(ck requires that "whoever, 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 foreign intelligence
activities of the United States, dir.
closes . . ." As an alternative formulation.
the Imposition of a judicial or jury finding
of a "pattern of activities" imposes a sepa.
rate but no less definable bardow of proof
upon the prosecutor. It should be clear that,
either in the bill or the legislathe history,
the pattern of activities could not itself be
used to show that the person had "reason to
believe that such activities would Impair or
Impede the foreign intelligence, activities or
the United States."
The Senate report. on page 15. recognizes
that a statute affecting speech or publican
tion. "must not extend, overbroedly." Fur-
thermore, the report on page 18 indicates
that the harm the bill seeks to prevent is
most likely to result from disclosure of Iden-
tities in the course of a pattern of activities
rather than a single isolated incident. The
report goes on to state "At the same time, it
does not affect the First Amendment rights
of those who' disclose .the Identities of
agents as an integral part of another enter-
prise suet as news media reportins of Intel-
ligence failures or abuses6 academic studies
of U.S. government policies and programs,
or a private organization's enforcement of
Its internal rules-" (Page 18.) Thus. the
Senate report has addressed the issue of
constitutionality In terms of the scope of
the coverage of the Act, and concludes that
such a provision would be constitutional.
The House version has an even narrower
scope: Both versions seem to me constitu-
tional.
The second issue I would like to address is
the type of information which I. covered by
the Bill. It Is quite clear that these bills deal
only with information identifying or serving
to identify Intelligence agents, as variously
defined in the bills. These bills do not cover
the disclosure of all classified information
or, In fact, any of the other types of intelli-
gence information which ought to be pro-
tected.
On the other hand, these bills would not
allow the prosecution of those concerned
with policy, political or other more general
questions. This fear has been raised, in my
view, without justification. Again, the prin-
ciple of specificity applies To the extent
that we are dealing with a narrow, well-de-
fined class of information. the constitution-
ality of protections given to that informa-
tion should be more certain
In support I would refer to an earlier
statement of Harold Edgar and Benno
Schmidt. Jr- professors of law of Columbia,
on January 25, 1979 before the Subcommit-
tee on Legislation of the Permanent Select
Committee on Intelligence of the United
States. House of Representatives. On page
16 of the statement. Edgar and Schmidt say
"We believe this Congress should continue
to accord high priority to public debate.
Only very narrowly drawn categories of de-
fense Information of great security signifi-
cance, and In most cases, little Import for
public debate, should be prohibited from
public revelation. Information about crypto-
graphic techniques, intelligence gathering
operations, the design of secret and vital
weapons systems, nuclear armaments, and
perhaps other narrow and concrete catego-
ries of defense or intelligence information
are appropriate subjects, in our opinion, for
prohibitions on peacetime press disclo-
sures." They go on to say that a. justifica-
tion defense, based on the Importance of
public debate, will be available under the
First Amendment to those who are accused
of unauthorized disclosure under any such
provision.
I conclude, therefore. that the category of
protected information Is narrowly drawn.
that it cannot be used for investigations into
policy or political criticism, and that ade-
quate, defenses exist under the First
Amendment to the Constitution to allow
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CONGRESSIONAL RECORD - SENATE March 1, 1982
the exploration of these issues in specific
cases.
The third issue I would like to address is
the question of the liability, if any, of those
who republish or otherwise distribute infor-
mation after the initial disclosure. Given
the fact that both the House and Senate
versions require some intent findings, It is
not possible to argue that the isolated or
single disclosure, on the part of a say, rep-
utable publication; would result in criminal
liability. Indeed, the bills are drafted in
such a way to allow this kind of reporting in
the ordinary course of review of intelligence
operations, foreign policy, and national de-
fense. If, on the other hand, a reporter or
newspaper were to act in a way which sup-
plied the required second Intent (House bill)
or pattern of activities (Senate bill) then
perhaps the conduct should be punishable.
It should be clear that the Isolated, unknow-
ing or unwitting release of an agent's Identi-
ty without the requisite Intent would under
no circumstances be punishable.
In this letter I have addressed the Consti-
tutionality of the most troublesome provi-
sion of the two agent identities bills. Section
501(c). I conclude that the class of individ-
uals liable under either bill is sufficiently
narrow to survive a Constitutional chal-
lenge. In addition, the type of information
which is protected is the type which de-
serves, and in fact requires, statutory pro-
tection, based on a significant Congessional
finding of need. Finally, I believe that the
scope of the bills, limiting the application to
republication or isolated incidents, is con-
sistent with the Constitutional mandates of
the First Amendment In this area. Thus, I
urge the Congress to give serious considera-
tion to the inclusion of Section 501(c) in a
reported bill.
Sincerely,
Professor of Law
Yale University.
This has created a bit of a problem,
of course, because everybody in the
House and the Senate feels that the
United States should have a strong In-
telligence service. It would be naive to
think that any country as powerful as
ours, both economically and militarily,
would not have a strong intelligence
service. We would like to feel that we
have the best, and it is conceivable
that we may. Certainly, many like
myself, the distinguished Senator
from Rhode Island, and others, have
done our best to try to make sure that
we do; because there is this broad-
based support, ranging from conserva-
tives to liberals to moderates like
myself, regarding the intelligence
agencies. There has been, inadvertent-
ly, I hope, a tendency on the part of-
some in the administration to perhaps
shade their views one way or the
other, depending upon to whom they
speak.
I mention that only to assure every-
body that there is strong bipartisan
support for a good intelligence service,
an effective intelligence service, one
that can protect our Nation.
In regard to that, all of us-Republi-
cans-and Democrats, everybody con-
cerned about the pernicious practice
of naming names, the intentional
blowing of cover of agents-are con-
cerned, as we should be, with the
_ names of our agents, especially agents
abroad, being printed in the various
publications.
Contrary to the views of a James
Bond type of intelligence agent,
karate-trained, armed to the teeth
with special little devices put together
by the armorer "Q," many of our in-
telligence people are rather innocuous,
some as Innocuous as Members of this
august ? body and probably about as
dangerous. I mean on a 1-on-1 physical
basis, of course. They do not have the
one-person-army attributes that we
sometimes think of with Intelligence
people. They are more like the George
Smileys of the world, the people who
have not the "Circus" of John LeCarre
novels.
If we have a person, for example,
who may be an economist working for
us in a country with perhaps all kinds
of tensions and whose name is sudden-
ly listed as a spy for the United States
simply because he is employed by the
CIA, that person's life may well be en-
dangered. Yet, he is no more than a
dedicated, hard-working, loyal, patriot-
ic American performing a duty ex-
tremely necessary to our country. To
suddenly see him and his family en-
dangered for that reason, I feel, is to-
tally unconscionable.
So, effective legislation to stop this
naming names, the Intentional blow-
ing of cover, has to be enacted. I will
support its enactment now, because
naming names has resulted in the di-
minished effectiveness of our intelli-
gence efforts and the loss of intelli-
gence sources, the lowering of morale
of our Intelligence officers, and possi-
bly the loss of life.
Since I have been a member of the
Intelligence Committee, I have made
it a point to visit our chiefs of station
in a number of places around the
world. I intend to do more this year. I
know that this is a matter of great
concern to them, as Indeed it should
be.
They are always concerned that
they may pick up the newspaper that
day and find their names listed. In
some instances, our people are well
.known as intelligence agents. In fact,
they are more effective because they
are. -In many other instances, of
course, they are not. The naming of
names has created real problems for
them. It has created problems when
the name has been simply listed by
somebody who has done it with, often-
times, extremely mean motives. It has
hurt Just as much when the U.S. Gov-
ernment has done it through its own
carelessness or ineptness by listing it
In a very obious way.
So it is crucial that we enact legisla-
tion with speed. By enacting that leg-
islation we should not overlook one
very important factor, and that is the
United States has these. intelligence
agencies and our military might so
that we can protect our country and in
protecting our country protect the
safeguards that we all have come to
expect in this country.
The United States is burdened with
an enormous defense budget. We do it
quite frankly because we want to keep
our country as free as it Is, because we
do feel that we enjoy constitutional
rights in this country, rights that are
not available to any other country.
One of those, of course. is our first
amendment right.
So while It is crucial that we enact
this legislation it is just as crucial that
we enact it in a way that will pass con-
stitutional muster.
That is why I urge the support of
the version of section 601(c) of the bill
which was adopted by the Judiciary
Committee, adopted after weeks and
months of hearings and debate. This
section limits the use of information
available in the public domain. It cre-
ates criminal liability for a person
who. "in the course of an effort to
identify and expose covert agents with
the intent to impair or impede foreign
intelligence activities of the United
States by the fact of such identifica-
tion and exposure discloses ... any in-
formation that identifies an individual
a covert agent."
In proscribing this activity. S. 391 re-
quires that the person charged be
proven to have a bad purpose in Iden-
tifying covert agents through the use
of public sources.
The amendment offered by my dis-
tinguished friend from Rhode Island,
Senator Came, eliminates this bad-
purpose test. Rather, it uses the objec-
tive "reason to believe" standard
which the Justice Department de-
scribes in a May 8 letter to Congress-
man MAzzou as a negligence standard.
Mr. CHAFEE. Mr. President, I sug-
gest the absence of a quorum. .
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to
call the roll. '
Mr. LEAHY. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. LEAHY. Mr. President, we have
before us, as Senators know, extraordi-
nary legislation that has been dis-
cussed at great lengths, both in the
Senate and in the other body. It is also
legislation that has probably had more
misinformation-misinformation inno-
cently-supplied than just about any
that we have had here.
I say that with a certain amount of
wonder, because we have the ability,
either within the Halls of Congress or
without, to completely obfuscate,-with
great regularity, legislation even of
less significance than this, but this
may be entitled to some kind of prize.
Part of it has resulted from a lack of
understanding of some who have dis-
cussed it. Part of it has resulted from
the fact that the administration, be-
tween the Justice Department and in-
telligence agencies, has taken different
positions on it at different times, de-
pending upon which committee they
were talking to or even which of their
many supporters they were talking to.
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March 1, 1982 CONGRESSIONAL RECORD-SENATE 3123?
I ask unanimous consent to have (b) Attempt provision tern: "The term 'foreign intelligence activf-
printed in the RacoRn that letter. An attempt provision can be added to sec- ties' as used in * 601(e) of the bill isintented
There being no objection, the letter tions 501(a) and (b) by simply inserting the to include the collection of foreign inteili-
was ordered to be printed in the phrase "or attempts to disclose" after the genre, foreign counterintelligence, and for-
REcoRD, as follows: term "discloses" In both sections. A lesser eign counterterrorism Intelligence; special
penalty for attempts be included by in-, activitiesHowever, activities conduct-
D:C , May8; 1981. sorting the phrase Phrase "and for r an en. attempt. these
non.
Zion. ROMANO? L. MAZZOLr, shall be fined not more than $15.000 or Im-
Chairman. Subcommittee on Legislation, prisoned not more than three years or
Permanent Select Committee on Intelli- both" at the end of each section.
genre, House of Representatives, Wash- At the April 7. hearing, the suggestion
ington. D.C. that an "attempt" provision be added to no-
DEAR MR. CHAIRMAN: When I testified tions 501(a) and (b) was questioned by sever-
before the Subcommittee on April 7, 1981 al members of the Subcommittee. Specifi-
concerning H.R. 4, I was asked to provide tally, Congressmen McClory and Fowler re-
further information in response to various quested that we study this matter further
questions raised by you and other members and provide examples of situations In which
of the Subcommittee. This letter contains an attempt provision would apply,. It should
my responses on behalf of the Department. be remembered that we have suggested
The references are to the relevant pages. of adding an "attempt' provision only to the
the transcript. which I also have corrected two sections involving government employ-
and enclose for your use. ees or contractors who have occupied poet-
I. (PAGES 68. 70, o1-s.9)
You and Congressman McClory requested
that I provide the Subcommittee with pro-
posed amendments to H.R 4 that world ac-
complish the changes I suggested in my tee.
timony. These included: (a) replacing the
specific intent standard in section 501(c)
with an objective intent standard; (b)?
adding an attempt provision to sections 501
(a) and (b): and (c) including a definition of
"foreign intelligence activities'' in the legis-
lative history pertaining to section 501(c).
fal Intent standard
The first suggestion could be accom-
plished by adopting language similar to that
in section 801(c) of S. 391 (97th Congress).
Section 501(c) would then provide as fol-
lows:
"Whoever, in the course of an effort in-
tended to identify and expose covert agents
and with reason to believe that such activi-
ties would impair or impede the foreign in-
telligence activities of the United States,
discloses any Information that identifies an
Individual as a covert agent to any individu-
al not authorized to receive classified infor-
mation, knowing that the information dis-
closed so Identifies such Individual and that
the United States is taking affirmative
measures to conceal such individual's classi-
fied intelligence relationship to the United
States, shall be fined not more than $15,000
or imprisoned not more than three years, or
both. (Modified language In ItalleY'
This revision would permit prosecution of
an individual who discloses Information
with knowledge that it identifies a covert
agent, while engaging in an effort intended
to disclose such identities, when all the sure
rounding facts and circumstances would
lead any reasonable person to believe that
such activities would impair or Impede the
foreign Intelligence activities of the United
States. This section also requires that an in-
dividual specifically intend to engage in an
effort to identify and expose 'the Identities
of covert agents with knowledge that the
Identities are classified and being protected
by the U.S. Government,
The "reason to believe" standard would
wrmit prosecution of an individual who can
be shown either to have known of and disre-
garded the risk of harm or to have been
negligent in overlooking the evident conse-
siuences of his actions for U.S. foreign Intel-
liRence activities. In view of the specific
:intent and knowledge elements contained
elsewhere in section 501(c), we believe this
objective intent standard would be sus-
tained by the courts and would permit a
more effective prosecution of the type of
harmful disclosures that concern this Com-
mittee.
tions of special trust and who have been
provided access to classified information in
the course of their official duties: The mere
fortuity that a disclosure by these persons is-
somehow aborted does not, to my mind.
eliminate their culpability. Of course. 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.
The type of conduct required to prove an
attempted disclosure will vary with the cir-
cumstances of a particular case Certainly,
where an employee having access to classi-
fied information that identifies a covert
agent mails or delivers a Iist 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 the defendant. Also, such a
substantial step could be evidenced by the
convening of a press conference with the
stated purpose of disclosing covert agents'
Identities. In this case, a jury would be re-
quired to consider all the circumstances sur-
rounding the defendant's actions (e.g., Did
he have a written list at the podium? Had
he told other "authorized" persons the sub-
stance of his planned remarks?) to deter.
mine if his actions sufficiently evidenced a
design unlawfully to ? disclose the classified
identities of covert agents
Attempt provisions. are by no means un-
common in the criminal code. Significantly,
the two espionage statute provisions which
the Department of Justice contends apply
to the unauthorized disclosure of covert
agents' Identities, 18 U.S.C # 793(d) and (e)
contain attempt provisions, See 'also 18
U.S.C. 1 794 (gathering or delivering defense
information to aid a foreign government);
Proposed Criminal Code, S. 1722, 98th
Conga. 1st Sess., 11001 (1980) (setting forth
a general criminal attempt provision). Such
provisions also are contained in numerous
Other criminal statutes. E.g.. 18 U.S.C. ? 4 32
(destruction of aircraft or aircraft facilities),
33 (destruction of motor vehicles or motor
vehicle facilities), 224 (bribery in sporting
contests), 231(aX3) (civil disorders), 245(b)
(interference with federally protected activi-
ties). We believe an attempt provision is jus-
tified for inclusion In sections 501(a) and (b)
and would be sustained by the courts in
proper cases.
(c) Definition of foreign intelligence
merit purposes within the United States are
not included."
If the Subcommittee deems it neoeaeary or
advisable, additional language cone'ning
the meaning of the terms "foreign intelli-
gence." "counterintelligence" and -special
activity" could be added modeled upon the
definitions now in Executive Order 12036.
We see no compelling need to do tbls, how-
ever, and not doing so would provide addi-
tional flexibility as the meaning of these
terms may shift slightly over time.
IL (PAOIS 72-7s., 74
Congressmen McClory and Fowles in-
quired whether there was a real need to in-
clude protection for FBI agents, sourus and
informants and whether an PSI covert
agent had been Identified in the recent past
In connection with a disclosure In Chingo,.
According to the FBI. the identity of an
FBI double agent who had been masked in
an investigation of the activities of the
Polish Intelligence Service in the Chicago
area was disclosed when a sealed court
record in a Freedom of Information Act case
on appeal to the Seventh Cheat was
leaked- However, the FBI has ben enable
to discover who leaked the court records or
for what reason.
As you requested during the hassling, I
have asked Director Webster to communi-
cate directly to this Subcommittee the views
of the FBI concerning whether this legisla-
tion should continue to include the Bureau.
III. (PAC! 712
Congressman Fowler requested the De-
partment's opinion of the so-called "Kenne-
dy compromise" to replace the current see-
tion 501(c). That proposal states:
"(c) Whoever, in the course of a pattern of
activities undertaken for the purpose of un-
covering the Identities of covert agents and
exposing such identities (1) in order to
impair or impede the effeetivenag of covert
agents or the activities in which they are
engaged by the fact of such uncovering and
exposure, or (2) with reckless disregard for
the safety of covert agents discloses any in,
formation that Identifies an individual as a
covert agent to any individual not author-
ized to receive classified information, know-
ing that the Information disclosed so identi-
fies such individual and -that the United
States is taking affirmative measures to con-
ceal such Individual's classified intelligence
relationship to the United States, shall be
fined not more than $15,000 or imprisoned
not more than three years, or both."
Subsection (c)(1) of this proposal would
criminalize the disclosure of a covert agent's
identity only if done in the course of a pat-
tern of activities undertaken for thespeeifie
and deliberate purpose of compromising
particular covert agents or their operations
in a foreign country. Especially In cogiunc-
tion with the proposed legislative history
for this subsection, this constitutes aspecif-
ic intent standard that could be interpreted
very narrowly. 128 Cong. Rec. S13,839 (daily
ed. Sept. 30, 1980). For example, it would
not penalized a person who willfully en-
gages gages in a pattern of activities to disclose
covert identities and knows that the ex-
The third suggestion was to include in the posed agents and their operations will be
legislative history pertaining to section rendered Ineffective by his disclosure, so
501(e) a definition or description of the long as his underlying purpose is to stimu-
term "foreign intelligence activities". The late congressional or public review of their
following language would satisfy our con- activities. The damage to the U.S. and the
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S 1238
I might say in this regard that both
Senator CsAFEx and I are of a mind.
We want this naming of names to
stop. We want to be able to hold sacro-
sanct the identify of our agents
abroad. We want to have an intelli-
gence service not made ineffective by
the constant fear that their names will
be disclosed.
But I must admit that I take a fairly
objective. look at this and I place
myself in the position of one who
might have to prosecute under this
statute.
While I never prosecuted someone
under a statute involving espionage, I
have prosecuted thousands of cases
prior to coming to the Senate. I look
at any criminal statute as what makes
sense from a prosecutor's point - of
view.
The language passed by the Judici-
ary Committee fulfills the two things
that we would want in this: Constitu-
tionality with its protection of our
first amendment rights, in my mind
the most cherished of our constitu-
tional rights. Of all our constitutional
rights none stands out as more impor-
tant to me than the first amendment
rights. But second, it fullfills the other
criteria that we want, and that is' a
statute that one can prosecute under,
one that not only makes sense to a
prosecutor but also does not make the
prosecutor sit there all the way
through and wonder if he is going to
have a constitutional issue raised.
Professor Kurland of the University
of Chicago put it most succinctly when
he said in a letter to the committee
concerning identical language last
year.
I cannot 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.
Even the recent Supreme Court case
of Haig against Agee, which involved
no criminal sanctions, relied heavily
on Mr. Agee's bad purpose when it dis-
missed his first amendment claims. In
upholding the revocation of Mr.
Agee's passport, the Court stated:
Agee's disclosures, among other things,
have the declared purpose of obstructing in-
telligence operations and the recruiting of
intelligence personnel. They are clearly not
protected by the Constitution. The mere
fact that Agee is also engaged in criticism of
the government does not render his conduct
beyond the reach of the law.
Yet this amendment is attempting to
enact a criminal statute which would
make it a criminal act for a newspaper
reporter to negligently disclose the
identity of a covert agent which he
discovered only through the use of
public sources.
Mr. President, I feel a chill, a chill
on our first amendment rights when
you hear the amendment described
that way.
All of us in our attempts to keep
America strong, to keep our defense
strong, to keep our intelligence agen-
cies strong, do it for one reason. We do
it so that we can protect America and
March 1, 1982
potential harm to those identified under
such circumstances is still significant, how-
ever. Moreover, the Kennedy language
would invite potential defendants to assert
an "underlying purpose" of reforming U.S.
policy in every case and thus frustrate en-
forcement of the statute.
As I testified at the Subcommittee hear.
ing, we believe an objective intent standard,
rather than a specific intent standard, is
preferable to facilitate prosecutions of the
harmful disclosures identified by this Sub-
committee. The Kennedy compromise, espe.
cially with its descriptive legislative history,
unacceptably narrows the scope of persons
subject to prosecution and provides a poten-
tial safe haven for those who engage in
these activities.
We have much less difficulty with subsec.
tion (c)(2) of the Kennedy compromise, al-
though we believe it does not go far enough.
It would permit prosecution of individuals
who engage in a pattern of activities to
expose covert agents and makes such disclo-
sures with reckless disregard for their
safety. This subsection is not, however, suf-
ficiently broad in that it would not apply to
disclosures by persons who should reason-
ably have foreseen that their disclosures
would lead to harm for either the covert
agents or the intelligence operations in
which they are involved. As stated earlier,
we believe that a "reason to believe" stand-
ard is more appropriate to be Included in
this legislation.
I trust this additional information will be
useful to the Subcommittee as it deliberates
further the provisions of H.R. 4.
Very truly yours,
RrcusaoK. Wnaean,
Counsel for Intelligence Policy,
Office of Intelligence Policy and Revieta
Mr. LEAHY. In eliminating a bad
purpose requirement, this amendment
may well go beyond the first amend-
ment limits set out by the Supreme
Court under the Espionage Act in
Gorin against United States.
In Gorin, as I am sure all my col-
leagues will recall, the Court examined
the constitutionality of the espionage
statutes, and the Court stated:
If this were the language...
.
Referring to no intent.
"It would need to be tested by the inquiry
as to whether it had double meaning or
forced anyone, at his peril, to speculate as
to whether certain actions violated the stat-
ute. This Court has frequently held crimi-
nal laws deemed to violate these tests inval-
id.
Let us to back to Gorin, a 1941 case:
The Court held the espionage stat-
utes constitutional precisely because
they went beyond requiring a person
to speculate, at this peril, of whether
his action violated the law. The Court
validated the statutes because they re-
quired the 'Government to prove an
element of bad faith, of scienter.
In adopting what the Justice De-
partment admits is a negligence stand-
ard, the Chafee language eliminates
the bad faith test, so pivotal to the
Gorin decision upholding the Espio-
nage Act.
That is precisely the reason that a
broad range of constitutional scholars
have questioned the constitutionality
of the Chafee language and opposed
its inclusion in agents' Identities legis-
lation.
protect the rights of all Americans, so
that we can maintain a country which
abides by its constitutional principles,
that abides by its constitutional histo-
ry.
Do we accomplish anything If in pro-
tecting America for Americans, in pro-
tecting our constitutional rights for
ourselves, we have to nibble away at
those constitutional rights? What
have we protected? What have we
gained?
We will not be helping the foreign
intelligence activities of the United
States by voting out a bill which runs
afoul of the first amendment. We will
not be aiding our foreign intelligence
operatives overseas by enacting legisla-
tion which then will be rejected by the
courts.
Imagine aside from the first amend-
ment rights, imagine aside from the
question of whether we are nibbling
away at our first amendment protec-
tions, Imagine that we were to pass
this law and then suppose, as would
most likely happen, the law was struck
down as unconstitutional by the
courts. What kind of a signal does that
send? Does not that create a far great-
er moral problem? Does that not
create far more problems than we face
now? Might it not be better to take a
more conservatively drawn law, one
that is carefully crafted to meet the
constitutional requirements, one that
we know will stand up in the courts
and pass that, so that each member of
our intelligence community know they
stand protected by a law that will
stand up?
Following the vote in the House to
eliminate the intent language, I asked
the Director of the CIA, Mr. Casey,
whether or not enacting legislation de-
signed to deal with this problem which
ended up being held unconstitutional
by the courts might cause greater
harm than not having the legislation
in the first place.
Mr. Casey replied:
Yes, yes. I think if we had legislation that
was struck down by the Court, that would
set us back to where we were, maybe even
set us back further.
This issue is too serious to afford
this Senate the-luxury- of seeing just
how close to a constitutional limit we
can go without crossing over the line.
Indeed, we have an obligation to enact
legislation which does not abridge im-
portant first amendment rights and
we can do so without losing any sup-
port for the bill.
The CIA and the Department of Jus-
tice, while preferring the Chafee lan-
guage, are satisifed that the commit-
tee language will be effective in pros-
ecuting the kinds of activities which
this legislation is designed to stop.
Indeed, the CIA suggested this lan-
guage as an acceptable alternative to
language originally proposed by Con-
gressman MA=Ors.
Even following the House vote. CIA
Director Casey reiterated in a hearing
before the Judiciary Committee that
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March 1, 1982 CONGRESSIONAL RECORD -SENATE S 1239
the language of the Judiciary bill number of companies' commercial in- seen the country of Nicaragua where a
"would perform the Job of properly terests or the first amendment rights newspaper which has spoken out has
stigmatizing and criminalizing the ac- of all Americans, there should be no been closed down by a ruling junta
tivity of disclosing the Identity of question about the choice whatsoever, five or six times in the past few
agents who are under cover." When we look at the standards there months.
Let us look at some of our own pre- should be no. question whatsoever I see the country of Et Salvador
cedents here. about what we should do. where one element of the government
Let me say that I find it ironic that 3 Let us be realistic about some of the can determine what will and when it
weeks before the Senate began consid- things that have happened. I am ex will be printed, and I see what hap-
ering this language, it moved unani- tremely proud of our country, very pens when you do not have the free-
mously to amend the Foreign Corrupt proud. to be an American. My grand- doms.
Practices Act to eliminate the section parents came to this country from i recall one person whom I was criti-
which makes U.S. corporations liable Italy, and they did it by choice. My pa- cizing strongly during that visit be-
for the bribes of their foreign agents ternal great, great grandparents came cause of repressive activities, and I
where they have "reason to know" to this country from Ireland, and they said to that person:
that their foreign agents are involved did it by choice.
in offering bribes. The stated reason Those Italian and Irish immigrants unwillingness You ought to realize your aoutitds and our for the amendment is that 'this ran- stayed in the United States. predonli. ake you very popular spaon do not
guage has had a chilling effect on U.S. nantly in Vermont where they first o yon very in my talk to .Yon
export activity because of the confu- settled. and they did so notwithstaad- ought to take some time to talk to some
American reporters and tell them how you
sion which the standardhas generated ins the history of moving from one feel.
for U.S. businessmen. ? country to another. They did it be- He said, "Well, I have talked to
Yet we talk about putting basically cause of what we have all found, all of them, but they will not. print what I
the into the 1 wusdg language stand- the ?Leahys, all of the Zambons have want them to pmt." .I said, "
Let me quote from a couple of busi- rights of indiv duals prohattectiveit is uII- thing about than that aometimhe dif--
ness publications which . argued for matched anywhere in the world. Pens ie That ? couthat Thar t c die.
eliminating the reason to know stand- I stated-and this has been my feel- TeMr. President, iwhat have enect here
and from the Foreign Corrupt Prac-_ Ing as a schoolboy, as a lawyer, as a yield othI have been caked tr
tices Act. The American Enterprise In- prosecutor, as a U.S. Senator-that of from to the Jersey (Mr. BR Senato
stitute's analysis entitled, "Proposed all our constitutional rights. the first Yield to the distinguished rom New Jersey (uiSena ed Sena I
Revisions of the Foreign Corrupt amendment is by and away the most from New or
Practices Act" stated: important. No other country in the, from Mr. DENT addressed NeJersey.
The broad .reason-to-know provision was world begins to match the United The NG OF the Chair.
identified in the 1980 executive branch States in its protection of first amend- The PRESIDING OFFICER. The
study of trade disincentives as the matter of ment. rights, in its freedom of speech, Senator from Alabama.
greatest concern to businesses. The GAO no other country in the world, Mr. Mr. DENTON. Mr. President, I will
found in its survey of business that firms President. yield in a a very very short time to the Sena-
were uncertain about whether they could tor from New Jersey.
Insulate themselves from liability for the ac- When we, as all of.us do, and again
tivities of agents by instituting control pro on both sides of the aisle, give biparti- Mr- LEAHY. Parliamentary inquiry,
cedures or whether they would be liable for san support to our country, obviously Mr. President
payments made by agents even after such there are 100 patriots in the U.S. The PRESIDING OFFICER. The
control procedures had been instituted ... Senate, there are 100 people who want Seantor will state it.
Large firms may use hundreds or thousands to see America strong. There are 100 Mr. LEAHY. Mr. President, who has
of such agents, and it is unrealistic rn
In a publication entitled, "The Price There are 100 people in this body who Senator from Vermont is advised that
of Ambiguity: More Than Three Y want to see a good, effective intelii- under the precedents of the Senate
,
Under the Foreign Corrupt Practearsices gepce service. the Senator from Alabama is the floor
Act," the U.S. Chamber of Commerce s But each of us realizes there are manager of the bill at this time. Under
Anted: times when our Government has made that . precedent, under a situation in
mistakes, as other governments have, which two Senators are seeking recog-
The "knowing or having reason to know" and we are aware that it is not always nition at the same time, the Senator
morge uncertain FCPA or assproba erns tl and has not always been the Members from Alabama Is entitled to recogni-
any other part of the Act Neither the Act of Congress, elected representatives of tion.
nor the legislative history provide an indite- the people, who have found those mis- Mr. LEAHY. Further parliamentary
tion as to what procedures a company must takes. but rather quite often it has inquiry. Does that mean the Senator
go through to be sure that it does not hd re been a free press in a free country from Vermont, when he has the floor,
reason to know that an agent over whom it which has found most mistakes. It has that he could not yield it to a particu-
has little control engages in corrupt politi- been a free press in a free country lar Senator?
cal payments. that has alerted the people of this The PRESIDING OFFICER The
Are we saying that reporters in this country when mistakes have been Senator from Vermont, of course,
country ,who cover foreign intelligence made. It has been a free people in a could yield for a question if he still
activities are endowed with greater free country working through their had the floor, but for no other pur-
reason than men and women doing freely elected representatives who pose.
business overseas or are we saying if have tried to correct, those mistakes, Mr. LEAHY. Son my yielding to the
you have a commercial interest at tried to make this a better country, Senator from New Jersey, does that
stake then that is far more important and that is why I think we are the mean that I was unable to yield to the
than if the only thing at stake is to try oldest existing democracy in the world Senator from New Jersey for whatever
to fulfill the first amendment consti- today, because we have those free- purpose he wanted? He asked me to
tutional rights of a free press that this doms, we have the freedom to say not yield to him. I could not yield to him
country has? only when we are on the right track at least long enough to find out if it
I am very much in favor of our busi- but also the freedom for people to was for a question or what it was?
ness people being able to do business stand up and say when we are on the The PRESIDING OFFICER. Under,
overseas and here. But, quite frankly, wrong track. normal procedure, I believe ft would
I must admit, Mr. President, if it Mr. President, a few weeks ago r have to be stated. If the Chair is Incor-
comes down to an issue of what is' spent some time in two very troubled rect, the Senator from Vermont would
more important to be protected, a. countries in Central America. I have please so state.
w' .
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S 1240 CONGRESSIONAL RECORD - SENATE March 1, 1982
Mr. ? DENTON. Mr. President, I
assure the Senator if I am granted the
floor I will not take more than 3 min-
utes.
Mr. LEAHY. I simply wanted to
make the parliamentary inquiry, Mr.
President. Thank you.
The PRESIDING OFFICER. The
Senator from Alabama.
Mr. DENTON. Mr. President, I have
listened to three or four speeches
against the amendment. I have held
my peace. But Senator CHAFEz, who
offered the amendment, is at the
White House at the moment and I
want to take a brief opportunity to re-
spond to some of the points which. I
think, unless responded to in a timely
manner, may be overlooked after he
returns.
We have had the question of realism
introduced by the last speaker. One
piece of realism Is that the KGB-DGI
combination of intelligence agents
probably outnumber our Intelligence
agents 100 to 1. That Is a conservative
estimate.
I chaired a hearing of the Subcom-.
mittee on Security and Terrorism on
Friday which received testimony from
a DGI defector which confirmed that
there are approximately 300 illegals In
the Miami area alone operating- in an
intelligence capacity for the Cuban
DGI, which is run and controlled by
the Soviet KGB. Many of these DGI
illegals act as decoys thus distracting
the few FBI agents who might be in
that area from the activities of the
real agents. This is the reality of the
problem in terms of intelligence.
It must be kept in mind that both
the Carter administration, with Benja-
min Civiletti as the Attorney General,
and the Reagan administration with
William French Smith. as the Attor-
ney General, desire and support the
Chafee amendment language In order
to better protect our intelligence
agents.
We have many in this body who are
qualified lawyers. I am not. But there
are a great many more qualified law-
yers in the executive branch of our
Government, specifically the Justice
Department, who have a background
in this area of the law and who.have
studied and researched this issue thor-
oughly, who are firmly of the opionlon
that the Chafee amendment is needed
for the protection of our agents. The
Chafee amendment is more in line
with, and, indeed, more liberal in
terms of the first amendment as op-
posed to the intent provision that
would require a witch-hunt type of ap-
proach. Under the Biden intent lan-
guage, there would be a great tempta-
tion to establish the state of mind of
the accused individual in order to
prove what his intent is.
There Is. I think, a curious intermin-
gling between those termed "liberals"
and those termed "conservatives" on
this particular issue. I note an inter-
esting mixture of both on each side of
the issue.
The President of the United States
today has asked that we bring this bill
up and do something with it quickly. I
heartily support that request.
The Senator from Vermont brought
up the argument that "reason to be-
lieve" effectively constitutes negli-
gence. I would have to disagree with
that contention. Examination of all
the elements of proof required under
section 601(c), which is indeed the
Issue, makes clear that reason to be-
lieve does not mean that a negligent
disclosure of an identity would be a
criminal offense.
First of all, the individual' making
the disclosure must know that the in-
formation he discloses does, in fact,
identify a covert agent.
The person making the disclosure
must also know that the United States
is taking affirmative measures to con-
ceal the covert agent's classified intel-
ligence affiliation. Moreover, the dis-
closure must be in the course of a pat-
tern of activities intended to identify
and expose covert agents.
And, finally, the person making the
disclosure must have reason to believe
that his activities would impair or
Impede foreign intelligence activities
in the United States.
All these elements must be proved,
Mr. President. An individual making
an unauthorized disclosure under the
circumstances can hardly claim negli-
gence. Subsection 601(c) cannot be
fairly evaluated incrementally. It must
be evaluated as a whole. It is complete-
ly fallacious to argue that standing
alone reason to believe is the same as
negligence, because reason to believe
does not stand alone in subsection
601(c); it Is preceded by five other ele-
ments, all of which must be proven
beyond a reasonable doubt.
In conclusion, there are nine other
statutes in the intelligence-related
area which employ the reason to be-
lieve standard.
Mr. President, I suggest the absence
of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The bill clerk proceeded to call the
roll.
Mr. LEAKY, Mr. - President,. I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. LEAHY.. Mr. President, I will be
unavoidably absent this afternoon, but
I would hope that those offering the
amendment might address themselves
to a couple of issues that concern me.
On the reason to believe line in sec-
tion 601(c), it strikes me in my own
review that it is more of a negligence
standard than an objective standard.
If that is so, I have not found a Su-
preme Court decision that has upheld
a criminal statute in the first amend-
ment area where a negligence stand-
ard was the only criminal intent re-
quired by the statute.
I would be interested to know
whether indeed this is a negligence
standard and, if so, how the propo-
nents would get around the lack of
any Supreme Court case upholding
such a criminal statute. '
The amendment requires that the
Government prove that the defendant
be engaged in a pattern of activities in-
tended to identify and expose covert
agents.
I would like to know what distinc-
tion is drawn between the intent to
identify and the intent to expose a
covert agent. Random House diction-
ary defines the word "expose" as to
"lay open- to danger, attack. and
harm." That implies an element of bad
purpose. Is there built into this
amendment a bad purpose by requir-
ing that the person have the intent to
identify as well as an intent to expose?
I am also concerned with the reason-
to-believe standard. In addition to
,being potentially unconstitutional, it
may create some serious gray mail
problems. Would a defendant charged
with this section of the act be able to
question the Government with regard
to its methods of providing cover for
covert agents?
I do not raise that as simply a hypo-
thetical Idea. We have had a recent -
case where, because of the gray mail
aspects, we have not been able to go
forward with what I thought was an
appropriate prosecution.
These are considerations and I hope
they are going to be raised and de-
bated during this debate.
Mr. President, I suggest the absence
of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The bill clerk proceeded to call the
roll.
Mr. HELMS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
GORTON). Without objection, It is so
ordered
.
BALANCE IN HUMAN RIGHTS
r. HELMS. Mr. President, this
g, the Subcommittee on the
tee o
d Nations, Jeane Kirkpat-
rights in th
memory.
violations of human
hemisphere in recent
g in its articula-
There being no objects the state-
ment was ordered to be pr[n d in the
REcoan, as follows:
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S 1244
CONGRESSIONAL RECORD - SENATE - March 1, 1982
Mr. Fagoth Mueller described for
people of her town, which
burned in her own home,
her babies, one born, one y
livered.
Her husband buried h
of the steps of th
camp in Honduras.
Will someone fro
Will you make t
that questio
of a quoru
roll.
Mr
safety. g
There also followed four incidents in beyond the reach of the law.
which single female employees of the ? There is also widespread agreement
U.S. Embassy in Managua were accost- that we must act now--indeed that we
eA and Inv had their hnl>pa entered. have delayed too long already. It was
at the e
n
e
-
-
fat one small step fur ,.. >.-
ow the truth? up the employees gardener : and other of the Embassy personnel
W
lf The following Aan
o
and I UI%LUA the a . In the second incident, individuals rector of Central Intelligence. wrote to
t, I suggest gest the absence L_lt__.-' aw
the same three men one of my colleagues on the Intelli-
be
SIDING OFFICER. The forced their way onto the grounds of gence Committee about these events.
-,--'-- ?t...1 . vw -...ta.
au tile roc. the guard, and waited 7 hours for the
clerk proceeded to call the I further believe we can in afford to wait
employee to return home. The Intrud- until another member of a U.S. overseas
ACKSON. Mr. President. I ask ers then tied up the employee, threw mission comes home in a casket before Con-
ressing paoblem
ddresses this
n
p
.
ey. grass a
ous consent that the order for her into a closet, togk her car, mo
..-e belo
i
and departed
ng
ngs
and so
Ff1G L is so ordered. -- employee was a CIA agent.
e bi and Nicaragua.
it It is s
objeccttion n
,
In the third Incident. the home of an We also find employee was entered by force. The W general agreement on
INTELLIGENCE IDENTITIES guard was tied up and the employee all provisions of the bill before us now.
save for one section. That section con-
CTION ACT OF 1981
PROTE
The Senate continued with the con-
sideration of the bill (S. 391). -
Mr. JACKSON. Mr. President, there
is wide agreement on the Importance
of the measure we are considering, the
Intelligence Identities Protection Act.
At long last, we have before us the
means to protect our national foreign
Intelligence capabilities from a serious
threat. There are active today a few
people who make business of exposing
the identities of American covert
agents. These people are not pursuing
historical or academic research, cor-
recting abuses, investigating possible
scandals or illegal activities, or pursu-
ing any other salutary public activity.
Instead, they are in the business of
"naming names."
These malefactors, notably Louis
Wolf and Philip Agee, have persisted
In risking the lives of courageous
public servants and threatening our
vital foreign intelligence activities.
Among their other activities, for ex-
ample, those two visited Greece, Ja-
maica, and Mozambique, where they
alleged a. CIA relationship for several
American Government personnel
working in those countries. In so
doing, Agee and Wolf placed the indi-
viduals they named in serious peril. In
Mozambique, the peril was harassment
and expulsion. In Jamaica, the peril
was attempted assassination. In
Athens, it was murder.
This threat continues - today. Just
last fall, in October 1981, Agee trav-
eled in Nicaragua, where a strident
anti-United States campaign was
under way. On November 6, the pro-
Sandinist newspaper, Nuevo Diarlo,
published the names of 13 alleged CIA
was accosted and threatened. The men cams provisions dealing with people
were overheard to discuss among who have never had access to classi-
themselves whether or not the em- fled material, section 601(c) of S. 391.
ployee's name was "on the list." And even on most parts of this sec-
The fourth incident involved the tion, we are agreed.
same employee who was the target of We are agreed that we must legislate
the first. The men involved hid on the to correct grave abuses. We are agreed
grounds of the employee's residence. that we must legislate carefully, to
When she 'returned home, the men avoid infringing on or chilling the ex-
stopped the car in which she was ercise of civil liberties. We are striving.
riding and, at gunpoint, took her, a to craft a law that will delimit narrow-
Nicaraguan acquaintance, her maid, ly the specific abuses that would be
and a guard prisoner. After tying, gag- prohibited. To that end, we agree that
ging, and blindfolding them, the men we must protect individual rights by
proceeded to empty the apartment of imposing a burden on those who would
all its contents and again disabled the be prosecuting others under this law-
telephone. During the course these a burden of six elements that must
acvities, the Nicaraguan acquaint- each be proven beyond reasonable
ance was beaten. The e assailants are
doubt.
quoted by the maid as having said. We are agreed, moreover. on five of
"We will are doing
have to leave." and CIA person- those six elements. Specifically, the
Americans they law would require, whether in the ver-
were del doing this s l so that "all aald that
will have to leave." Just before leaving sion as it came to the floor or as
- - --
t
h
d
- -
our 11anU0 are I
c
Z ou are CIA an
ing to kill you." have urged, that the prosecution prove
that w pe
a
ed
sew this lam
rson
ccus
un
Mr. President, because of incidents must nave:
like these, and because of the way in Acted In the course of an effort or
which Wolf-Agee-style activities can pattern of activities intended to identi-
injure our national foreign intelli- fy and expose covert agents.
gence capabilities, the need for legisla- Intentionally disclosed information
tion dealing with this matter is not in that did, in fact, Identify a covert
doubt. There is widespread agreement, agent.
not just in the Senate but throughout Made-disclosure to an individual not
Congress and the Government gener- authorized to receive classified infor-
ally, on the need for legislation to pro- mation.
tect those who serve our country In Known that the information dis-
such hazardous circumstances. closed did, in fact, identify a covert
The activities of people like Agee agent.
have been condemned in the press and Known that the Government was
in the courts. For example, the Su- "taking affirmative measures to con-
preme Court majority opinion on June ceal such individual's classified intelli-
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officers assigned to the U.S. Embassy 29, 1981, in the case of Haig against-
she lieve the publication of those names Agee's disclosures, among other things,
the ants linked with Agee's visit. Several Of have the declared purpose of obrtructing in-
fs
als
o
i
A
i
f
mer
ca t
Ong with um of all these
fact that Agee is also engaged In criticism of
to be de- , were evacuated for their personal the overnment does not render his conduct
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March 1, 1982 CONGRESSIONAL RECORD -. SENATE
gence relationship to the United tory and case law that has been devel.
States." oped concerning espionage activities.
SUPPORT FOR THE OBJECTIVE sTAR'DARD And It has passed constitutional
Where there is disagreement, Mr. muster in a number of important
President, is the sixth element re- cases. -
quired for the prosecution to prove. Finally, it is important to remember
The bill, as it came to the floor, em. that we have been addressing just one
ploys an "intent" standard for pros- element-the objective versus the sub-
ecution, which would require that a jective standard of proof. Whichever
defendant's state of mind and purity version is supported by the Senate will
of purpose be examined. That Is, In be only one of six elements, each of
the bill as it came to the floor, the which must be proven. Moreover, in
sixth element. required for a successful case a court might require further
prosecution would be that the person guidance in applying this law, its legis-
making the disclosure of identity did lative history makes absolutely clear
so with the intent of impairing or im- that the legislative purpose is to "get
peding the foreign intelligence activi the bad guys," not to chill debate over
ties of the United States. issues of public policy.
This language concerned me, chiefly Mr., President, the amendment we
for reasons of civil liberties. We must have proposed will help protect our
exercise great care to protect the exer- civil freedoms and the lives of coura-
cise of our political freedoms. We geous public servants-who are also
should be very cautious about writing vital to preserving our freedoms.
laws that would permit or even require Mr. President, I urge prompt adop-
examination and trial of a person's tion of the amendment.
lawful exercise of political beliefs, ac- Mr. BIDEN. Mr. President, I wel-
t1ons, and associations. The free exer- come the comments made by the dis-
cise of public scrutiny and debate Is tinguished Senator from the State of
central to our democratic institutions, Washington. I shall attempt to rebut
and we should avoid creating laws that some of the assertions that he made.
might chill these activities by inducing He has been a leader in this area for
a fear that a spirited criticism made some time, His knowledge of the area
today will tomorrow be adduced as evi- is without question. But I wish to clar-
dence of impure intent. ify a couple things. The Senator says,
Consequently, I joined Senator as do many have who support his posi-
CuAFEE and several other cosponsors tion, that having the reason to believe
in proposing an amendment to the bill language in the legislation would avoid
which which would restore the origi- the argument that there was a benign
nal language of the bill. Our amend- intent; that is, that the person making
ment would replace the subjective the statement of disclosing the name
Intent standard with an objective would not be able to argue: "I really
standard, according to which the pros- didn't mean to hurt the Intelligence
ecution would have to prove that the capability of the United States; I
accused has reason to believe that he meant to help it."
would impair or impede foreign intelll- I cannot for the life of me under-
gence activities of the United States. stand how the Senator and others can
The language proposed in our continue to make that argument when
amendment has been strongly sup- in fact the same argument applies to
ported by both the Carter and Reagan reason to believe. Why would a de-
administrations. It is the language fendant in a case not just as easily be
that was endorsed by the Senate Intel- able to say before a jury, 'Ladies and
ligence Committee in 1980, that was In gentlemen, I' did not have reason to
the bill when it was originally submit- believe that I was hurting the United
ted to the Senate during this Con- States of America; I had reason to be-
gress, and that was overwhelmingly lieve I was helping the United States
adopted by the House of Representa- of America by disclosing the name of
tives early last fall. John Doe who I believe to be a mole in
The key advantage of this language, the CIA"
I believe, is effectiveness. The Chafee- If t4e argument applies to the Intent
Jacksozl language will be more effec- language it applies with equal and I
tive in protecting both our foreign in- think in fact increasing validity to
telligence capabilities and our individ- those who suggest the reason to be-
ual civil liberties. With this language, lieve language should be there.
the legitimate scope for governmental I wonder, if the Senator wishes to re-
investigation would be limited. Being spond to that.
an objective standard of evidence, the Mr. JACKSON. I am glad to re-
reason to believe element makes irrele- spond.
vant an individual's political beliefs, Having been a prosecuting attorney
associations, and other public activi- myself once upon a time, handling
ties. At the same time, malefactors will cases from speeding to murder in the
not be able to avoid punishment under first degree and having sent them to
this law by claiming that they had a the gallows, so to speak, I can say as a
benign intent for their actions, howev- former prosecutor that the task here
er, much they endangered national se- without the Chafee-Jackson amend-
curity and imperiled individual lives. ' ment is going to be very difficult when
The reason-to-believe standard Is ef- you apply a subjective standard.
fective in a technical sense, as well. It The key point is that the test should
is consistent with the body of state- be objective and not subjective, that a
S 1245
person knew or should have known
that the result of this course of con-
duct would lead to such-and-such.
That Is what we are really talking
about.
Without this amendment, the ele-
ments of proof will be troublesome to
a jury and a U.S. attorney.
Mr. BIDEN. With all due respect,
having also tried a number of murder
cases, having tried rape cases, having
tried cases of equal consequence I re-
spectfully suggest and maybe having
tried them even at a more recent date
than the Senator from Washington. I
respectfully argue he is not correct. I
respectfully argue that when. one
walks into a court to try to apply in a
criminal case a reason-to-believe stand-
ard that is essentially a civil standard
by and large it Is more difficult to
make that case than it is to make the
case of intent.
For example, in the celebrated case
we have been reading for several
months of Wayne Williams in Atlanta,
there was an intent requirement The
prosecuting attorney had to prove
that Wayne Williams intended to kill
those people. There are no eye wit-
nesses who said, "I saw him kill those
young men."
There were no eye witnesses to sug-
gest that he ever at any time said he
intended to do anything. There was
never any proof in the literal sense. I
know the Senator from Washington
and others of my distinguished col-
leagues used the phrase "pure intent.,
There is no such thing as pure intent.
No court in the world requires pure
intent, whatever that means. Intent
can and always Is inferred unless one
can establish It directly by either the
defendant acknowledging that he had
the intent to do that. All the rest of it
is inferred. So, this idea that somehow
we are out here searching like Dioge-
nes for the truth and pure intent Is a
bit of a red herring. There Is no such
thing as pure intent required to be
proven. It can be inferred.
Mr. PERCY. Mr. President, will the
Senator yield?
Mr. BIDEN. I Will not yet at this
point because It is a very important
point. I want to hear the Senator's re-
sponse. I will yield in 30 secbnds be-
cause I do not think the response will
take much longer than that.
Mr. JACKSON. As you know, reason
to believe language appears in most of
the basic espionage statutes. I ask my
colleague, am I right or wrong?
Mr. BIDEN. You are right, but you
are applying It incorrectly.
Let me respond directly to the Sena-
tor from Washington. My distin.
guished colleague, Senator Car*t+EE,
has cited In the debate on Firday sev-
eral espionage statutes. As a matter of
fact, he cites two espionage statutes
that included the reason to believe
language. and I would argue before
the distinguished court here that they
are not cases In point.
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S 1246 CONGRESSIONAL RECORD - SENATE March 1,1982
He starts off when he cites 18 U.S.C. that the espionage statutes are not ap- of Jordan for the past 20 years, and
793, subsection (e), and this is a gener- plicable, they are not cases in point, there was a subsequent story in the
al espionage statute which makes it a because you pointed out, Senator, the New York Times by David Binder on
crime to disclose material related to reason why there have not been pros- February 19,1977, who named four ad-
the national defense to a person not ecutions for publication is there are ditional foreign leaders who received
entitled to receive it, and it adds an ad- not any statutes that. in fact, make that money.
ditional requirement of "reason to be- punishable publication under - the Under the reason to believe standard
lieve that this information could be reason-to-believe standard. and the I believe it is fair to say anybody who
used to the injury of the United point is the Senator from Rhode did that, in this case Woodward and
States" only for oral statements as op- Island and the Senator from Washing- Binder, should have reason to believe
posed to documents.. ton and others have often used that it that would have hurt our efforts, is
Senator CHnrsz confirms that this is evidence of the fact that the reason- that not correct?
statute contains far less protection to-believe standard would be constitu- Mr. JACKSON. I think you would
than section 391. but the reason it tional is simply not applicable when have reason to believe that the King
does is that this statute is not intend- the issue is publication. . of Jordan did not look so good. He did
ed to apply to publications of informs- The second - point I would like to not harm any of our people.
Lion but only to the secret transfer to make to the Senator from Washington Mi. BIDEN. I see.
foreign powers. on premeditation. premeditated intent Mr. JACKSON. We are here to pro.
.This analysis Is spelled out in an ar- to establish first-degree murder can be tect the good name and the Integrity
ticle in columbia Law Review in 1973 inferred It does not have to be proven - of the intelligence system of our coun-
by Edgar and Schmidt. The Justice in the sense that you have somebody try. Other countries protect theirs In a
Department asserts that this' is not having to leap into the person's mind pretty rough manner.
the case and argues the reason to be- It can be inferred from their acts. Mr. BIDEN. So neither of those
lieve statute is as the Senator sug- That is how we convict people. people
gests. But there is not any case of Mr. JACKSON. But the Senator Mr. JACKSON. 11dy colleague is
which I am aware in the espionage would not want the Racoaa to stand being very modest. He has done a lot
statutes, not a single conviction for here and say it does not have to be of outstanding work on the Intelli-
the publication of information, not a proven. The judge instructs the jury gence Committee, and he knows that
single, solitary one under the reason that the accused must have the other countries are really tough on
to believe standard and the reason charges against them proven beyond a those who violate the code. The Brit-
why is with publication the reason to reasonable doubt both as to intent and ish, who have a reasonable system,
believe standard would be unconstitu- premeditated intent through the centuries of freedom have
tional unless intent is implied. Mr. BIDEN. Right. been the toughest, and the Israelis are
Mr. JACKSON. I do not believe we Mr. JACKSON. I agree with the even tougher.
have a provision in the code at the Senator that- the overall circum- Mr. BIDEN Well, I understand that.
present time similar to this one involv- stances, the pause, the time, and what I am concerned about what it means in
Ing publication. We have the statutes not, are matters that can be adjudged this country. If the Senator is right. I
relating to classified material. But as by the jury as evidence of premedita- could vote with him
to the situation we are dealing with tion. For example, an article by Jeff
here, we have not had that problem Let me just say when I referred to Gerth on December 6. 1981. in the
presented in this way. the espionage statutes and pointed out New York Times reveals that many
My colleague also mentioned intent that language is similar in those stat- former CIA station chiefs have gone
in murder. Of course, in first degree ? utes and they have been upheld by the into private business in countless
murder it is not just intent, it has to courts, that we are dealing now with a countries around the world. He goes
be premeditated intent which, as my situation which we have not had to ad- on to identify seven former CIA offi-
colleague knows from his experience, dress in the past in a statutory cials who have used contacts they
having tried murder cases-I have as a manner, and I submit that the prece- have made, while they were in Gov-
prosecutor, and do not know whether dents here confirm the position that have ernment, uncovering the agent's name-
he has in either defending or prosecut- the Intelligence Committee took and One of the standards is that the Gov-
ing-- - that was adopted by the overwhelming One of ernment is taking affirmative action to
Mr. BIDEN. I was defending. vote by the House on this issue. prevent their -disclosure. The Govern-
Mr. JACKSON. it is a tough ques- We can go on and on, bht I must say ment took affirmative action to pre-
tion. and the point I want to make that the standard that. makes sense to vent the disclosure of these names. He
here is that -to be required to prove me is the prudent standard. and that published them. Under the reason to
specific intent and to establish that as Is-whether the individual knew or as a believe standard, is it likely he will go
one of the six elements poses real reasonable person should have known to jail if he were tried?
problems in prosecuting. The accused that the consequences of his act would Mr. JACKSON. No.
can say: lead to this kind of harm to the secu- Mr. BIDEN. Why not?
I had no Intention of doing anything here rity of the Nation. Mr. JACKSON. No, because we are
other than to divulge a scandal or whatever Someone could travel around saying: talking about former awho were
is going on. I was just down in such and such a coun- CIA. agents n
I think we have a duty and a respon- try checking over the lists in the Embassy, no o longer anger In
totally the a CIA. We are are talking
siblity of saying that that individual, a and having served in the CIA I thought it different situation.
reasonable person, a reasonable man, ought to be known who is working for the Mr. BIDEN. So, as the Senator un-
if you please, knew or should have CIA. It is a great organization, but I think it derstands our overall statute here
known, Mr. President, that the cone- all ought to be made public. then, if anyone. including Agee, can go
quences of his act or her act would What does one do? Yet we know that out and disclose, even though it is
lead to such and such. That is what I a reasonable person would come to the based on prior information that he
am saying here, to sum it all up. conclusion that that person, regardless had as an agent, he could go out and
(Mr. HATCH assumed the chair.) of his defense and his protestations, disclose the names of former agents
Mr. BIDEN. Let me. respond by was indeed harming the security of who were no longer agents, is that
pointing out the Senator makes a very this country. right?
eloquent rebuttal for his own point Mr. BIDEN. I think that is a very Mr. JACKSON. Well, you have to
about why the espionage- valid point the Senator makes. Let me prove, as you know. all six elements.
Mr. JACKSON. That is - my pur- ask him now a specific question. Are- Mr. BIDEN. I understand. But I
pose-for my own point. porter for the Washington Post, Bob want to make sure we are talking
Mr. BIDEN. Rebuttal of your own Woodward, disclosed that the CIA about the-same thing. Because the
point by the Senator's pointing out made secret payments to King Hussein Senator just said the reason why this
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CONGRESSIONAL RECORD -- SENA 1 B
fellow Gerth would not go to jail was
because these people were former
agents. Does that mean it is all right
to disclose the names of former
agents?
Mr. JACKSON. My specific amend-
ment, the. Chafee-Jackson amend-
ment, relates to those who are on
active duty in the CIA. There Is an-
other section in the bill that addresses
former employees of the agency.
Mr. BIDEN. All right. We have a
couple of articles by current employ-
ees, where the names of current
agents have been published by the
United States or by publications in the
United States. Let me give you a few
examples.
David Shipler, reported in 1978 in
the New York Times that the Soviet
paper Izvestia had identified four al-
leged CIA officers In the U.S. Embassy
in Moscow who were then active
agents in the area. He published those
names. He published them because he
said that Izvestia had identified them
as agents.
Now, it would seem to me, in the
reason to believe standard, that all the
standards were met. First, he did pub=
lish the name of agents. He disclosed
it and he knew they were agents..
Second, he used the pattern of activi-
ties to disclose it, because he went
around and interviewed a whole bunch
of people to establish whether or not
he had the
Third
ents
,
.
they were ag
Intent to disclose those names by the ployees that the agency Is trying to and he said "Yes, I went out and asked
fact of disclosure. Fourth. the Govern- protect their names. They are saying the Agency. 'What happens If I pub-
ment was taking affirmative action to that we do not want those names dis- lish the name of Joe Doaks, an agent
prevent, in fact, their names from closed, employees that, in fact, are in- in Korea?' "
being disclosed. And then we get down volved in the CIA today; employees, Surely, what the Agency says is,
to the last standard, should he not when he publishes their names, that "You will be impairing or impeding."
have-since the Government said, "We meet, as a consequence of his publica- And the defendant comes back and
do not want you publishing those tion, five of the six standards set out; says, "But that is not my intent. My
names. We are taking efforts to keep that is, he intended to publish their intent is, do you not realize these guys
these from being disclosed. You, in names, he knew they were agents, he are involved in bribery, in bluffing the
fact, are engaged in the business of intended to disclose what their names Congress? These guys are involved in,,
finding out who they are," and so on- were, he, In fact, knew that they were so on and so forth.
should he not have, under the Sena- agents working for the agency, and so Mr. JACKSON. I think the jury
tor's standard, reason to believe that on, and he had reason to believe-no could determine, certainly. his objec-
that would harm the United States of one could doubt, it seems to me, that if cive. which is certainly different from
America? I do not know how you avoid you publish the name of an agent op- the Agency. He r certainly an iferent from
that. erating in South Korea that you are the is notva was to uproot
Mr. JACKSON. First, regarding the not jeopardizing that agent. But he cor and certainly you would
that case, I want to make clear did it for a reason totally unrelated to ruptionnot have, difficulty proving that.
that the Senate bill does not cover the disclosing or hurting the national se- If. incidentally, it tout that the
situation that my good friend referred curity. He did it for the reason to un- iv involved is turns
a covert employ-
agent That is, the disclosure of a covert cover Koreagate in the U.S. Congress. in indivtheinual i nvolved is covert em, you
agent who is no longer in the employ Now, would he be subject to going to hee of ave not proven a case aminut him.
of the Government is not protected by jail under your law? Mr. BIDEN.
With all due respect.
the Senate bill. The House bill pro- Mr. JACKSON. My offhand judg- have to prove.
vides, as It was passed and sent over ment is no. You would have to first es- that have what to they prove a the prove.
here, for a 5-year hiatus;'that is, for 5 tablish that he acted in the course of All is tended they not to disrupt. impair, that
impede.
years after having left the intelligence an effort or pattern of activity and in- in your lan-
community, anyone who discloses in- tended to identify and expose covert The to guage ptimp only goes proi disclosure. All they
formation as indicated in the general agents. et beyond
bill would be in violation. But my Mr. BIDEN. If the Senator will stop have a to prove once and you get is and
amendment, the Chafee-Jackson there, he clearly did that. It is beyond that, the the prosecution, a why
prove once about this-all you
amendment, addresses only those on. question he did that. I will tell you the press have axe pto so worried
active duty. how he did it, if you give me just a they
Mr. BIDEN. I think that is impor- moment. beyond that is that such disclosure
tant to make clear. Mr. JACKSON. His purpose was not would impede, whether or not intend-
Mr. JACKSON. My colleague, I to expose covert agents. ed, and there is no question it would
know from our work together on the Mr. BIDEN. Sure it was. His purpose impede, even if you have a good pur-
committee on so many matters that was to disclose those agents by the pose.
we cannot even discuss on this floor, mere act-all of our testimony is re- It is clear that it will impede, disclos-
has played an outstanding role in en- plete in the Judiciary Committee and lug the name of four agents in Korea.
hancing and in strengthening our in-
telligence system. I know he wants to
do what we all want to do, and that is
to protect those who are taking great
risks for our country. We all want to
do the same thing. I do believe that
unless we have language of this nature
we are simply not going to get the con-
victions when the . chips are down.
That is my sole reason for offering the
amendment with senator Cnm= and
other colleagues.
Mr. BIDEN. I do not want to put the
Senator on a spot or get us in a posi-
tion where we are arguing=-
Mr. JACKSON. Neither one of us is
on the spot.
Mr. BIDEN. What I mean Is arguing
about the number of angels on a head
of a pin or anything like that. I do not
want to get into any of those kinds of
esoteric arguments.
I have very practical concerns, as the
Senator does.
For example, Robert Pear described
in the December 20, 1979, New York
Times a lawsuit involving current and
former CIA employees assigned to
South Korea. One of the officers told
the Times that the CIA had been
aware of South Korean influence
buying in the U.S. Congress years
before the Koreagate affair became
public but had concealed the informa-
tion from the Justice Department.
Now, Pear comes along and discloses
the names of current employees, em-
In the Intelligence Committee that the
intent provision is met by the mere
fact of disclosure. Otherwise, why
would he have disclosed unless he in-
tended to disclose? There is no ques-
tion about that.
The pattern of activity by the Jus-
tice Department testifying before our
committee is established not by a
series of publications but by a series of
activities that involve the investigative
process of determining whether or not
the person is an agent. So he went
around and asked a whole bunch of
people, "Is this guy an agent? What is
he involved in?" And so on. That es-
tablishes the pattern of activity. There
is not any question about that.
Mr. JACKSON. Clearly, YOU cannot
in one breath turn around and say
that it was his sole purpose to uproot
corruption and then that his real pur-
pose was to disclose agent identities.
That is what a jury would have to
decide on the basis of all six elements
that would have to be proved-wheth-
er it was his purpose to uproot corrup-
tion to disclose the identity of Individ-
uals as covert agents.
Mr. BIDEN. You see, that Is the
point. You are saying in effect we
should apply an intent standard. You
say the reason to believe standard
allows a prosecutor to introduce in evi-
dence the following evidence: I say,
"Did you not ask the Agency whether
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It is going to impede the efforts of the
CIA in Korea. There is no question
about that.
Mr. JACKSON. I Just do not agree
with that conclusion because the
whole thrust of it in the suppositious
or hypothetical can you presented--
Mr. BIDEN. Senator, that happened.
Mr. JACKSON. Was he prosecuted?
Mr. BIDEN. No, because there was
not a law like you are suggesting.
Mr. JACKSON. You mean, the
amendment.I have suggested. You are
not disagreeing with the law as a
whole?
Mr. BIDEN. No, just on the reason
to believe standard..
Mr. JACKSON. Bear in mind that
you have to prove that he acted first
of all in tfe course of an effort or pat-
tern of -activities intended to identify
and expose covert agents simply for
the purpose---
Mr. BIDEN. You are adding "simply
for the purpose." That is not what it
says. That is your language. That is
not what the statute says. You have to
stop where you said to "expose covert
'agents." "a pattern of activities in-
tended to identify and expose covert
agents."
Mr. JACKSON. That is what I said.
Mr. BIDEN. You said "sole pur-
pose." Then you go on and read the
qualifying language and it says "and."
You have established the first part.
he intended to disclose their name, be-
cause he did it. He had a pattern of ac-
tivity. He went around and asked 50
people, "Do you know Joe Doaks is an
agent of the CIA?" And so on. That is
clearly establishing the pattern. The
prosecutor established that. Now he
has disclosed the names.
I say to you he disclosed that.
"You knew they were agents. Didn't
you intend to disclose the name of an
agent?"
Of course he has to say, "Yes."
There is no rebuttal.
Then the language comes into play
that you and I argue about. That is
that it then says, "And, in addition,
with reason to believe that such activi-
ty would impair."
Mr. JACKSON. May I say that my
answer is that a Jury would have to
prove that he did it intending to iden-
tify and expose covert agents. What
he is intending to do is to expose cor-
ruption, and I do not agree with the
press' interpretation of this amend-
ment or that example. I understand
what this hassle is all about, but I also
understand, too, that leaving a loop-
hole here can indeed make it almost
impossible to handle any of these
cases.
Mr. BIDEN. I am not sure how fruit-
ful it is to continue in terms of asking
questions, but let me emphasize again
for the record, for my colleagues in
the Senate. The intent provision clear-
ly, unequivocally, without question,
applies to the issue of identification.
That is the first thing that has to be
met-the second, actually, with the
pattern. That is easy to prove by the
mere fact that you have, in fact,
named the names. You are estopped
from saying you did not intend to
name the names. So the intent provi-
sion is in fact met.
Then you move to the second stage.
Did you, when you published that
name, have reason to believe that it
would hurt, impede, foreign intelli-
gence activities?
It is almost impossible to argue be-
cause a jury cannot decide what your
real intent was. We are saying they
cannot look at your intent. -We are
looking at what they had reason to be-
lieve. They have to acknowledge that
reason to believe.
When I expose the name of an agent
in another country, operating covertly
in an area that is important to us,
when I do that, obviously it does not
help the effort in that country, even if
the reason I did it was to expose a
mole. to expose a triple agent, to
expose the Koreagate, a greater pur-
p It is impossible to argue under the
reason-to-believe standard that the de-
fense lawyer for that newspaperman
would say, "Look, ladies and gentle-
men of the Jury, we acknowledge this
hurt. we acknowledge this impeded.
but you have to look beyond that. You
have to look to the greater good"
The presecutor can stand up and
say, "Your Honor. I obJect. That is ir-
relevant."
The Judge will have to say, "You are
right, Mr. Prosecutor, it is not relevant
that this man uncovered a triple
agent. that this man was going after
Koreagate, that this man was doing
something which, in fact, in the long
_run benefits the U.S. intelligence proc-
ess. That is not admissible."
So what happens? As the defense at-
torney for that newspaperman, what
do I do? I say, "I will visit you in Jail. I
will bring you lunch. I will go by and
say hello to your children."
It is clear that he has to have reason
to believe that it would hurt. There is
no question it hurts, but is that what
we are after here?
What happens in the case of our dis-
tinguished colleagues, former agents
and present agents, who are involved
with 'these guys. Wilson and Terpil?
What are those guys all about?
Were it not for the vigilant press,
where would we be? I did not hear
anybody in the Agency come and tell
us, "Hey. by the way, Wilson and
Terpil are bad guys. They are talking
to Libya."
I did not hear anybody in this Con-
gress uncover those guys. It was the
press that did it. It greatly benefited
the United States of American intelli-
gence-gathering apparatus. It put us
on the alert as to what we had to be
worrying about.
So what happens? What happens if
those folks are still in the. business.
still on that payroll. and a newspaper-
man discloses that?
Look. I am going to yield to Senator
Banco .aY in a second, but I want to
make it clear for those of you back in
the offices listening on the squawk
box and those of you who will be
voting on this thing.
First of all, a pattern of activity, I
will read into the record before the
day is over from the record before the
Judiciary Committee a serleps of
agents' names being disclosed. It is a
series of agents and activities on the
part of a single investigative reporter
looking for a single name. That estab-
lishes a pattern of activity.
Now you have the first element of
Proof.
The second element of proof is that
the person, the investigative reporter.
intended to publish the name.
Obviously, if they published it and
they knew it was a CIA agent, the
second element of proof is met. They
intended to publish the name.
Now we move from intent-that no
longer is an element in the crime-to
reason to believe.
You have established the pattern.
you have established the intent to
publish the name, and now all the
prosecution has to do is to say, "Ladies
and gentlemen of the Jury, did not
David Binder. did not Robert Wood-
ward. would not any reasonable man,"
to use the phrase of my colleagues,
"know that by publishing this infor-
mation they are going to hurt the in-
telligence-gathering capability of the
United States of America?'
Of course they know that.
Now I stand up as the defense coun-
sel for either of those two gentlemen.
and I say. "Ladies and gentlemen of
the Jury. of course we knew it would
hurt, but that is not the issue here.
The issue is they did not intend to
hurt the overall gathering capability.
What they were going after here is the
fact that there is a mole in the CIA
that works for the Kremlin. that Is on
the payroll of the KGB,. and that is
what they were going after. They
could not expose that and make their
case absent the exposure of the other
person."
And then the prosecution stands up
and says, "Ladies and gentlemen of
the jury. that is irrelevant. You do not
have a right to look beyond what toa
reasonable man would appear to be
the case on its face."
The fact that Bob Woodward was
trying to expose a mole is irrelevant.
And the court will have to sustain
that.
First of all, the court will not sustain
this at all. It will be declared unconsti-
tutional. But assume it were not. The
court has to sustain it. So that is not a
defense. That Is why intent is so im-
portant.
Granted. Mr. President. anyone you
prosecute under this law is going to
come back and say, "I did not really
intend to hurt. My effort to pull down
the CIA was done in the best interest
of America."
Well, they can make the same argu-
ment on reason to believe. They can
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stand before the jury and say; "Oh, it us. They are like everyone else in Is called intent. Nothing magic about
is true, I published that name. It is America: When the heat Is on, they do it. It need- not be pure. it can be
true that I know that that person is not like to jump in, like the rest of us. impure. It need not be perfect. it can
operating in Korea or Afghanistan or So, Instead of taking a chance, I sus- be imperfect. It need not be shown
any other place in the world. It is pect that in some cases, there will be a beyond anything beyond having to
true-but I had reason to believe It chilling effect. And that is not good infer it. Why not stick with that
would help America, not hurt Amer. for America. standard?
ica." Forget the press; forget the first Mr. President, I can tell by the looks
That Is a question for the jury to amendment. That is not good for on my colleagues' faces they are think-
decide, just as it is in Intent. There is basic, flat-out, old-fashioned Ameri- ing why do I not sit down now? So I
nothing special or unique about the 'Cans. whose security is at stake. will sit down. I yield the floor.
That is where "reasonable men" on
the jury and "reasonable women" on
the jury make that judgement as, to
whether they are lying or telling the
truth.
But, folks, this is not a matter of se-
mantics. This is not a minor point.
The last point I shall make is-and
then I shall yield to the Senator from
New Jersey, or whoever is seeking rec-
ognition-let us assume for the sake of
argument that the Senator from the
great State of Washington was correct
a moment ago when he said the cases I
read to him would be matters for the
jury to decide. That, in and of itself,
should be reason enough to make us
not go along with the reason-to-believe
standard, because talk about a chilling
effect. Do you want to be the editor of
a newspaper in America when your re-
porter comes to you and says, "Hey.
look, I have the biggest case of the
decade. I can blow the KGB operation
in America wide open. I found out who
the mole is in the CIA."
Instead of the editor's asking the
question; "Can you corroborate that,
what are your sources, how did you
get it?" the editor is going to have to
ask the following question: "By the
way, when you expose that mole, are
you going to have to expose anybody
else in the Agency?"
"Well, of course, I am going to have
to mention four other agents who are
now operating in another country."
The editor is going to have to say,
"Wait a minute, will that hurt the op-
eration in the other country?"
"Well, yes, it is going to hurt overall,
but think what it is going to mean to
the country to expose this mole."
Then the editor is going to be
saying, "Wait a minute, now, I want to
make sure. Is this first happening on
your watch, not on mine?
"Second, what would a reasonable
person think? Would a reasonable
person, think this is good or bad?
Would a reasonable person think this
will impede -r impair?
"Regardless of what your intent is,
you and I are both certain, John Doe
Reporter, that we have no intent to
harm America. But what will a reason-
able person think?"
I do not want to be the editor having
to make that judgment. I do not want
to be the reporter having to make that
judgment. In spite of the fact that our
press is noble and wonderful, I find in
times of crisis, they are not ready to-
throw themselves upon a sword. They
tend to be as cowardly as the rest of
or not the agency is functioning, we
are at peril and at risk. And I might
respectfully suggest, so is the agency.
It Is helpful to them, not harmful.
But I sure do not want to be the Sena-
tor who votes on -a piece of legislation,
assuming it can sustain constitutional
muster, which I do not believe It can,
that results in long debates in the edi-
torial board rooms of the newspapers
of America as to whether or not they
to forward with exposing a Wilson or
a Terpil or anybody else. Especially
when they mean sincerely and deeply
to enhance the capabilities of the in-
telligence community. to enhance U.S.
security., to enhance our national in-
terest, and have to debate whether a
reasonable man would or would not
think they should go to jail for this
effort.
Why not do in this statute what we
do in other criminal statutes and say
you are required to have knowledge in
what you are doing that you intend to
hurt-not intend to publish the name,
intend to hurt.
That is a matter for the jury to
decide. That is a matter that prosecu-
tors can make an argument for. That
is a matter that is constantly argued
before juries in every criminal case, in
every court, in every State. at every
trial. And it can be inferred just as it is
in the Wayne Williams case. It was in-
ferred that he- had a premeditated
intent to kill. The jury did not have to
have it set out for them, Wayne Wil-
liams saying, "Yes, I intended," or
someone else saying. "I heard him say
he intended."
It is the same in this case. Why not
err. on the side of the Constitution?
Why not err on the side of the first
amendment? Why not err on the side
of security? Why not err on the side
that everybody, including the agency,
says will get the job done?
If you notice, folks, you will hear
throughout this entire debate that
there is nobody in the agency who has
said before any of the committees, "If
you adopt the Biden language, we
cannot get the job done." They are
saying, "We can get the job done with
it." They are saying, "We like the
other language better, but we can put
away all the Agees in the world under
Biden's language." It is a piece of
cake-that Is my characterization,
"piece of cake," not theirs.
So why not err on the side of main-
taining what is a standard that has
SIMPsoN). The Senator from Califor-
nia Is recognized.
Mr. HAYAKAWA. Mr. President, I
Implore the distinguished Senator
from Delaware, who has defined the
problem before us as a matter of se-
mantics. to leave that determination
to me. since I have written five books
on the subject of semantics.
Mr. BIDEN. If the Senator. will yield
on that point. I often wonder about
that comment with regard to generals,
"Is war not too important to be left to
generals," if it would not apply here:
Is semantics not too important to be
left to those who wrote books about it?
But I yield to the Senator.
Mr. HAYAKAWA. Mr. President, I
am fascinated by the argument of the
distinguished Senator from Delaware.
I have not heard such academic hair-
splitting since I was a graduate stu-
dent caught in the middle of conflict-
ing theories of literary interpretation
as applied to a poem by William
Butler Yeats. I am grateful to the dis-
tinguished Senator from Delaware for
reminding me of those dear dead days
when I was working on my Ph. D.
Mr. President, it seems as though we
in the United States sometimes have a
naive view of how our Nation Is per-
ceived abroad.
After all, our country seeks peace.
As President Reagan noted last year In
his worldwide address on nuclear
disarmament, the United States Is not
an aggressor. Immediately following
World War II, we alone possessed the
atom bomb, and yet we sought world
stability, not world domination.
And our people are charitable. In
countless disasters around the world,
the American people and their Gov-
ernment have come to the aid of the
afflicted. .
So, Mr. President. it is not surprising.
that, so often, we cannot comprehend
the hostility our Nation encounters
abroad. Our Embassies are bombed,
our officials kidnaped, and our policies
attacked.
In this increasingly tense interna.
tional atmosphere. thousands of our
citizens are courageously serving their
country in the intelligence-gathering
operations so important to our nation-
al security. These Government em-
ployees were aware of the personal
dangers confronting them when they
elected to engage In intelligence activi-
ties. But they now find themselves
threatened not only from the front
.
been in our Anglo-Saxon jurispruden- but from behind as well; threatened by
tial thought for the past 800 years? It their fellow citizens.
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S 1250 CONGRESSIONAL RECORD - SENATE March 1, 1982
In 1975, American Philip Agee's
Counterspy magazine identified Rich-
ard S. Welch as CIA station chief In
Athens. Greece. Richard Welch was
murdered 1 month after the informa-
tion was disclosed in the Athens Daily
News.
In 1980 another American citizen,
Louis Wolf, revealed the names of 15
alleged CIA agents in Jamaica. Within
a week assassination attempts were
made on 2 of the 15.
Mr. President, we are now approach-
ing the seventh anniversary of the
death of Richard Welch. and still
there are no laws to prohibit the type
of . despicable act that led to his
murder. Those citizens who would de-
stroy our intelligence gathering capa-
bilities are still trotting around the
globe naming names and endangering
the lives of conscientious Americans.
I have cosponsored S. 391, the Intel-
ligence Identities Protection Act, so
that we can at last bring an end to this
type of activity. The bill prohibits the
unauthorized disclosure of Intelligence
agents and directs the President to
take steps to insure the secrecy of In-
telligence relationships.
Section 601 (a) and (b) of the act set
stiff penalties for those who misuse
their authorized access to classified In-
formation by disclosing the identities
of covert agents.
Section 601(c) targets those who
engage in patterns of activity to iden-
tify and expose covert agents. The lan-
guage originally proposed by Senator
Cams and approved overwhelmingly
by the House would penalize such per-
sons who have reason to believe that
their activities would harm U.S. Intel-
ligence activities.
The Senate Judiciary Committee,
however, decided narrowly to change
the reason to believe requirement to
one of intent. The Government would
have to prove, not that an individual
engaged in naming names had reason
to believe than his activities were
harmful, but that he intended them to
damage American intelligence oper-
ations.
I favor the language originally pro-
posed by Senator Cxarss and support-
ed by both the Carter and Reagan ad-
minstrations. The intent standard
would be difficult to prove and would
allow an individual to claim that his
anti-intelligence actions were intend-
ed, not to impair U.S. intelligence ef-
forts, but to expose certain activities
that were improper and worthy of
public discussion. . In other words,
whatever the results, the individual
could claim that his intention was
good-indeed. he could say he was
acting from highest motive of patrio-
tism.
Senator Cu rzx's "reason to believe"
standard would deal more effectively
with those who threaten our national
security, while preserving constitution-
al rights. To convict, the Government
would have to prove not only that an
individual had reason to believe that
his activities imperiled foreign inteili-
gence operations, but that beyond a
reasonable doubt: First, there was an
intentional disclosure of Information
which Identified a- covert agent; sec-
ond, the disclosure was made to some-
one not authorized to receive classified
information; third, the person who
made he disclosure knew that the In-
formation disclosed identified a covert
agent; fourth, the person who made
the disclosure was aware that the
United States was taking affirmative
measures to conceal the convert
agent's classified intelligence affili-
ation; and fifth, the disclosure was
made In the course of a pattern of ac-
tivities intended to Identify and expose
covert agents.
This language will enable the Gov-
ernment to convict the guilty, while
continuing to allow legal scrutiny of
Government activity. A reporter who,
in the course of an investigation, re-
vealed an agent's identity could not be
guilty under the act, because he would
not meet its pattern of activities re-
quirement.
Mr. President, I commend the Sena-
tor from Rhode Island for introducing
this legislation and for continuing to
press for the best possible language.
Like him, I recognize that if we are to
deter effectively those who would de-
stroy legitimate American activities,
we must have an effective law.
Mr. BRADLEY: "Mr. President, the
bill we are presently debating is one of
the most important pieces of legisla-
tion to come before Congress. It deals
with the national security and the
constitutional rights of all Americans.
The issues the bill raises merit rea-
soned debate. And they deserve the
careful scrutiny of every Senator.
This bill Is responsive to, a grave
problem the U.S. intelligence commu-
nity faces in fulfilling its foreign intel-
ligence responsibilities. In recent years
a small number of Americans, includ-
ing some former CIA employees, have
been engaged in a systematic effort to
undermine our clandestine intelligence
operations by disclosing the names of
agents. Yet so far, none of the people
responsible for these disclosures has
been indicted under the expionage
laws or any other law.
The failure to prevent these wanton
acts underscores the need for a new
law that specifically addresses this
problem. Until we pass such a law, our
intelligence agents will become less
and less effective while at the same
time they will be exposed to increasing
danger. In addition, our relations with
foreign sources of intelligence will con-
tinue to deteriorate because of the
fear these sources feel for their own
safety. Unless we can protect U.S.
agents and their foreign sources from
malicious disclosure. our foreign intel-
ligence activities will be severely im-
paired And because we will have di-
minishing access to intelligence infor-
mation that is timely and accurate,
our national security will suffer.
Accordingly, I support the bill that
the Judiciary. Committee has reported.
This bill makes criminal the disclosure
of intelligence identities in certain
specified circumstances. It applies to
three well-defined and h afted classes
of individuals. The first consists of
those who have had authorized access
to classified information identifying
undercover agents. These are primax-
fly U.S. Government officials who
have a need to know the identity of
CIA operatives. Because their access
of the identities of covert agents de-
rives from a position of trust, the bill
penalizes their disclosure of this Infor-
mation most heavily.
The second class alsp consists of In-
dividuals who have had authorized
access to classified information, but
not necessarily information directly
Identifying covert agents. In order for
members of this class to be penalized
under the bill. It must be shown that
they learned an agent's identity .as a
result of their access to classified in-
formation.
The third class of Individuals affect-
ed by the bill are those who may have
never. had authorized access to classi-
fied Information but who, in the
course of an effort to expose covert
agents and with an Intent to impair or
impede the foreign intelligence activi-
ties of the United States, disclose in-
formation to unauthorised persons
that Identifies an individual as a clan-
destine agent.
I believe the bill as reported has
been carefully considered and skillful-
ly drafted. It affords appropriate pro-
tection to intelligence agents by
making criminal those disclosures
which clearly represent a conscious
and pernicious effort to Identify and
expose covert agents with the intent
to damage the national security.
At the same time, the bill avoids in-
fringing the constitutional rights of
innocent Americans and unduly im-
peding the public's right to know. In
particular. it is drafted on that casual
discussion. political debate, the legiti
mate activities of Journalists, or the
disclosure of illegality or impropriety
in Government will not be Inhibited
by enactment of this legislation.
Mr. President, it is essential that
this last feature of the bill be pre-
served. There is no doubt that we need
effective prohibitions on malicious dis-
closures of the identity of intelligence
agents But there is similarly no doubt
that we must preserve the fundamen-
tal right of free speech guaranteed all
Americans by the first amendment.
And we must jealously guard the im-
portant role played by the press in ex-
posing the truth.
S. 391 as reported strikes a proper
balance between protecting the men
and women who risk their lives as
covert agents and guarding the Inter-
est all of us have in freedom of speech
and a free press.
Substituting language from the
House-passed bill as proposed in the
Chafee amendment would upset this
balance and I must oppose it
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In the case of individuals who may A second requirement is that the in- respond only to clarify the Record as
never have had access to classified in- dividual disclosing the agent's identity to what his intent is in proposing the
formation, the Chafee language re- have reason to believe that the disclo- reason-to-believe amendment.
quires only proof of reason to believe sure will harm U.S. intelligence activi- I have with me today fewer articles
that disclosures would impair or ties. But the CIA asserts that when- than I did the last time we discussed
impede intelligence activities. ever a covert agent is identified it be- this situation on the floor. I now have
The bill before us requires "intent," comes harder to recruit new agents. only 10 articles with me and I wish to
I am concerned that substituting the Based on the CIA position, a reason- ask the Senator to answer a couple of
"reason to believe" for the "Intent" able person would have to conclude questions about each of these articles
test would chill significant public that any disclosure of a possible CIA so that we might clarify the intent of
debate on Government activities even operative would harm U.S. Intelligence his amendment. The questions are:
where the purpose of the debate was activities. Moreover, most journalists Does the Senator believe that the ar-
to expose serious impropriety. would check with the CIA before pub- title or book should have been pub-
The reason to believe standard also lishing a story and would invariably be lished with the names included and
risks Imposing criminal sanctions on told that disclosure would cause injury does he believe that the publication
those who disclose information of a to the agency. Hence, it is difficult to would be covered by S. 391 with the
purely factual nature which they be. imagine a situation in which this con- reason-to-believe standard? If not, why
lieve the public has a right and a need dition would not be met. not?
to know. The penalty would apply to The third criterion for liability I can provide the Senator with a
situations in which the identification under the Chafee language is that the copy of each of the articles or I would
derives entirely from published U.S. individual discloses information that be pleased to read the article to him or
Government documents and where the identifies an Individual as a covert read a summary of the article, but I
disclosure would not place any lives in agent- This simply requires that a would like to get this clarified for the
jeopardy. Finally, the House bill would story be factual-a condition that the Record. Which would the Senator
impose criminal sanctions not only on media itself imposes on investigative prefer to do?
those in the business of naming reporting- Mr. CHAFEE. Why do we not have a
names, but. also on publishing activi- The fourth criterion Is that the dis- look at the article? I am not at all fa-
ties fully protected by the first amend- closure be unauthorized. Repeating miliar with what the Senator is dis-
ment. the name of an agent to an editor or cussing. And why does he not send it
Mr. President, there is no need for printer would constitute such disclo- over or let me take a look at It if I
us to substitute "reason to believe" for sure. The fifth requirement is that the in- could, please?
"Intent." The administration is on dividual The knew a covert agent was Mr. BRADLEY. I have 10 articles
record as stating either version of the from the New York Times, the Wash-
bill is acceptable and will be enforce- being identified. This condition would ington Star, and the Washington Post,
able. In a letter to Chairman BoLAND be met by the story that the individual each written by a journalist and. the
of the House Intelligence Committee, was an undercover CIA agent. question is: Does the -Senator believe
CIA Director Casey stated he could Finally there is the requirement that the article or book should have
support the Senate Judiciary Commit- that the individual knew that the been published with the names includ-
tee version. The Justice Department United States is taking affirmative ed? Does he believe that its publica-
has indicated their agreement with measures to conceal the agent's identi- tion would be covered by S. 391 with
Mr. Casey's position and the hearing ty. Any reporter would know that the the reason to believe standard? While
record on this bill fully confirms that CIA wants to conceal the identity of I am waiting for them to be Xeroxed,
either version will do the joh all covert agents. Again, it is hard to let me summarize the first article:
If both versions are acceptable to conceive of circumstances where a It Is a New York Times article dated
the agencies they are intended to pro- piece of investigative journalism about December 6,1981.
tect, why then should we risk needless- an intelligence operative would not The PRESIDING OFFICER. If the
ly Infringing on freedom of speech and sum, satisfy this condition. Senator from Rhode Island-
freedom of the press? d would cothe
cover virtudisclo- ally Mr. CHAFEE. Mr. President, if I
Proponents of the reason-to-believe sures by an investigative all reason-to-believe
r in stand- could interject one question, tell us that their version affords sures reporter in- , if I
volving intelligence agents. might, I would be interested in the
ample protection f
th
b
or
e press
ecause Proponents of the reason-to-believe Senator's viewpoint as to whether it
of the other protections of the bill. In version assert that it is-not necessary would be covered by the intent statute
fact, these other conditions simply de- to name names, that responsible jour- since the Senator has indicated he is
scribe the activities of an investigative nalists do not name names. That -is for the intent statute, and he is obvi-
journalist. simply not the case. I have here arti- ously familiar with that. I would ap-
Senator BIDEN has gone over this cles and books by responsible journal- preciate It if he would give his views as
point in some detail but let us go ists and authors which include names to whether it was covered, and answer
through it once more and perhaps the of covert agents as defined in the bill, the same question as to intent that he
proponents of the amendment could I would like the proponents of the is asking of me with regard to reason
concretize this for us by responding to. Chafer amendment to explain to me to believe.
a few questions that are directed at whether the authors of these articles, Mr. BRADLEY. I would be pleased
specific newspaper articles. which seem to respond to legitimate to respond. We will go article by arti-
First, let us consider "pattern of ac- concerns of the public and their right cle. The first article, as I say, is an ar-
tivities." This requirement is supposed to know, would be criminally liable title in the New York Times of Decem-
to provide protection for those who under the terms of. this amendment. ber 6. 1981. This article details how
argue for the reason to believe stand- Specifically I would like to know: many former U.S. Intelligence opera-
ard as opposed to the intent standard. Do they believe that the article or tives have entered into profitable busi-
Instead, "pattern ? of activities" is book should have been published with ness arrangements in other countrie&
simply a definition of exactly what an the names included? According to the author, Jeff Gerth,
investigative reporter does when on a Do they believe that the publication their success Is derived from their spe.
story such as the current New York would be covered by S. 391 with the cial secret access to foreign officials
Times effort to find out whether any reason-to-believe standard? If not, why and to the sensitive information they
CIA officials worked with former intel- not? gained in their Government service. It
ligence agents Wilson and Terpil in re- Mr. President, if I could have the at- names several people the author char-
cruiting and training Americans and tention of the floor manager of the acterizes as former agents and de-
foreign nationals for terrorist activi- Chafee amendment, I wish to pose scribes their present business activi.
ties. these questions to him and have him ties.
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Now, to the Senator the questions
are: Do you belive the article or books
should have been published with the
names included?
Second, do you believe the publica-
tion would be covered under the
reason-to-believe standard?
Mr. CHAFEE. That one is easy. As
the Senator knows, the statute only
covers covert agents. It does not cover
former covert agents.
Let us have the next one.
Mr. BRADLEY. So that the author
in this case would not be subject .to
the law, is that right?
Mr. CHAFES. That is true under
either statute.
Mr. BRADLEY. The reason to be-
lieve--
Mr. CHAFES. Or the version that
came out of committee
Mr. BRADLEY. Very well
The second article Is a New York
Times article dated September 14,
1981. This is an article by Phil Taub-
man which discuss weaknesses in U.S.
laws and policies governing the trans-
fer of American arms and technoloq
abroad, the lack of prohibitions on the
training of Terrorists or the sale of
arms or explosives by U.S. citizens.
The article names several former
CIA officials whom the author identi-
fies as possibly involved in such activi-
ties, including Edwin Wilson.
The question to the Senator Is; Do
you or do you not believe the article or
book, this article, should have been
published with the names included?
Do you believe the publication would
be covered by the reason to believe
statute? If the Senator would prefer to
wait until the articles are Xeroxed-
Mr. CHAFE.E. I would prefer to
answer them as the articles came off..
I would prefer if the Senator from
New Jersey would refer to the defini-
tions in the committee bill. by the
way, so that his questions are not
really directed against the so-called
Chafee amendment. Then he would
see that they are directed against the
bill itself.
If you will note on a copy of the leg-
islation In section 606 it goes into defi-
nitions. It states:
The term "covert agent" means an officer
or employee of an intelligence agency or a
member of the Armed Forces assigned to
duty with an Intelligence agency-
So by definition the article he was
reading does not deal with an officer
or employee of an intelligence agency.
He himself said "a former agent of the
CIA." So clearly that example does
not apply.
The news stories of the Wilson and
Terpil cases have been constantly
cited as being Imperiled by passage of
this legislation. That Is absolute non-
sense. The people who' say this have
not read the legislation. Wilson and
Terpil were former agents, and disclo-
sure of their names would not be pe-
nalized under this bill.
Mr. BRADLEY. The third article,
New York Times, November 1, 1981, is
an article again by Phil Taubman in
which he details how again former
U.S. intelligence agents assisted
Libya's Intervention in Chad.
The PRESIDING OFFICER. May I
interject to the participants and
remind the participants, even though
it may not be necessary, that the Sen-
ators In debate under the rule should
address the Presiding Officer and not
individual Members of the Senate.
The Senators should address their
questions to another Senator through
the Chair.
Mr. CHAFEE addressed the Chair.
The PRESIDING OFFICER. The
Senator from Rhode Island.
Mr. CHAFES. Mr. - President, In
answer to the question posed by the
Senator from New Jersey, again the
answer is in the question itself where
the Senator from New Jersey referred
to a former employee of the CIA. That
case, of course, is covered by the defi-
nition which we previously discussed
in section 606, with the definition of
the term "covert agent."
Mr. BRADLEY. A fourth article, Mr.
President, I would pose the question,
this is from the New York Times of
October 24, 1981, an article by Stuart
Taylor which Identifies an additional:
actor in. the Wilson-Terpil investiga-
tions.
The PRESIDING OFFICER. The
Senator from Rhode Island.
Mr. CHAFES. Mr. President, I am
not clear on whether that Is the com-
pletion of the question. Obviously the
question is covered, as we say, as I
have stated several times here, by the
definitions in the act. This act only ap-
plies to active officers or employees of
an agency in the case the Senator
from New Jersey cited.
Mr. BRADLEY. Mr. President, the
fifth article is from the New York
Times of December 4, 1981. This is a
story by William Schmidt. It Identifies
Eugene Tafoya, accused of murdering
a Libyan national, as a self-styled
covert agent. Does the Senator believe
that this article should have been pub-
lished with the name included, and
does he believe the publication will be
covered under the Chafee amend-
ment?
Mr. CHAFER. Apparently this Indi-
vidual claims to be a covert agent of
some type. Anyway there is no sugges-
tion that this individual is now an
agent of the CIA. But as the distin-
guished Senator from New Jersey
knows, if perchance this individual
should be on active duty or an employ-
ee of an intelligence agency, this does
not by itself mean the disclosure of
that name subjects the discloser to the
punishment in the act. There are
other elements to be proved.
Mr. BRADLEY. In this particular
article let me read the paragraph that
I am especially interested in knowing
the Senator's opinion about. The
author of the article says:
Mr. Tafoya testified that not only did he
shoot Mr. Zagallal in self-defense in a strug-
gle, but that he also believed at the time he
was on secret assignment from the CIA.
Does the Senator belied Mr. Presi-
dent, that the publication of this arti-
cle by William Schmidt is covered by
S. 391 with the reason to believe
standard? . .
Mr. CHAFER. This Individual is not
an employee of the CIA, so his case is
not relevant.
Mr. BRADLEY. So the Senator Is
saying that this article would not vio-
late the reason to believe test because
the named CIA official is, In fact, not
a member of the CIA, is that correct?
Mr. CHAFES. Not so. But that is the
easiest and quickest exception to the
various standards of proof that have
to be met. In other words, if the
person is not an employee of the CIA. -
then he is out. That does not mean If
he is an employee of the CIA that
whoever wrote the article can be pros-
ecuted. There are the other Issues that
we mentioned before.
Mr. BRADLEY. Such as pattern of
activities.
Mr. CHAR Mr. President, I am
confused as to the question, which
does, not seem to be coming through
the chair.
Mr. BRADLEY. Mr. President, let us
go to the sixth article from the Wash-
ington Star. August 17. 197L This arti-
cle is by Leonard Curry. He states that
Arabia, Raymond Clos% went into
business with Kamal Adham a former
CIA connection in Riyadh. According
to the author, the joint business ven-
ture between a former station chief
and a top foreign government spy is
the first known case of its type. The
story also quotes a former U.S. Am-
bassdor as saying he questions wheth-
er CIA agents ever really break their
ties with the agency. '
Now, the question is: Does the Sena-
tor believe that this publication would
be covered under the reason to believe
standard?
Mr. CHAFES. Mr. President, the dis-
tinguished Senator from New Jersey is
making a mistake In suggesting that
there Is a different standard of proof,
as far as these particular matters go,
under either the reason to believe or
the intent standards. Under either
statute, that is the statute which in-
cludes the committee language or the
statute which would include the
amendment language, there can be no
prosecution of a disclosure of a name
of someone who is not an employee of
the CIA or of an intelligence agency.
So this Mr. Raymond H. Close, in the
article I believe the Senator is refer-
ring to, which was published in August
of 1978 had retired or stepped down 8
months previous to his name appear-
ing in print. So, again, according to
the definitions, this disclosure would
not be covered under the statute,
whether it is the intent statute or the
reason to believe statute.
Mr. BRADLEY. Mr. President, I ask
the Senator to further clarify what he
means by an active agent.
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Mr. CHAFEE. Mr. President, it is
not what I mean by an active agent, it
is what the statute says. The statute
has a definition which we have re-
ferred to several times. A covert agent
means "an officer or employee of an
intelligence agency." An officer or em-
ployee. Those are words of art. They
are not vague. You are employed. You
are in the employ of an intelligence
agency.
Then it further goes on to say:
(1) whose identity as such an officer, em-
ployee, or member is classified information,
and
(ii) who is serving outside the United
States or has within the last five years
served outside the United States.
So those are not the definitions of
the Senator from Rhode Island. Those
are the definitions in the statute.
Mr. 'BRADLEY. Mr. President, I
would just ask one further clarifica-
tion. The article I have quoted by Mr.
Leonard Curry quotes an Ambassador
as saying he questions whether agents
ever really break their ties with the
agency. If an agent is no longer an em-
ployee, per se; bt;t has an arrangement
with the agency whereby he receives
any type of compensation, would he
come under the definition of officer or
employee?
Mr. CHAFEE. The description that
somebody never breaks their ties, I
suppose, can be applied to anybody. I
suppose distinguished graduates from
Princeton never break their ties with
Nassau Hall. They are there. But
hardly would the person be referred to
as a student of Princeton or an em-
ployee of that great university. They
have ties of sentiment and-ties of nos-
talgia, but not necessarily ties of em-
ployment. The statute is clear. Covert
agent means an employee. And an em-
ployee is a legal term, which I do not
think we have to go into all the facets
of here, but it can be determined by
statute and by regulation.
Mr. BRADLEY. Mr.. President, one
further clarification: Is an employee
or officer someone receiving a pen-
sion? -
Mr. CHAFEE. Well, Mr. President, I
think again that is very clear. That is
very clear in all law-that someone re-
ceiving a pension is not an employee.
He is entitled to that pension whether
he shows up for work or not. He is not
even expected to show up for work. So
there is no question. I do not think
there is any serious question whether
a pensioner is an employee of a firm,
company, the U.S. Government, or
whatever it might be.
Mr. BRADLEY. Mr. President, I
thank the Senator. One last clarifica-
tion on the definition of covert agent.
The bill lays out three major headings
under the section defining "covert
agent." The third heading, and I
would like to read it and ask the Sena-
tor to explain his understanding of it.
says:
The term covert agent means-
"(C) an individual, other than a United
States citizen, whose past or present intelli-
Bence relationship to the United States is
classified information and who is a present
or former agent of, or a present or former
informant or source of operational assist.
ance to, an intelligence agency.
Now the Senator has said that
former agents are not included. I do
not understand the third definition of
covert agent if that is so. I hope the
Senator can explain that for me.
Mr. CHAFEE. Mr. President, we are
now dealing with a whole new class of
individual that was not in the previous
groups that were discussed by the Sen-
ator from New Jersey. Those were U.S.
citizens and these, as it makes clear,
are not U.S. citizens. These are re-
cruited agents, not necessarily employ-
ees, of an intelligence agency. So this
is a distant group that falls under a
separate classification. -
Mr. BRADLEY. I' would again cite
the .article by Mr. Leonard Curry, in
which he refers to a Sheik Kamal
Adham. Adham is reportedly a CIA
connection in Saudi Arabia. Under the
third definition of covert agent, if it
was revealed Adham is no longer but
he was formerly an agent. would the
author of this article be subject to
prosecution under the reason-to-be-
lieve standard? Mr. President, I hope
my colleague would comment on my
question.
Mr. CHAFEE. I wonder if the Sena-
tor would repeat his question?
Mr. BRADLEY. Of course.
Mr. President, under section (c), the
third definition of covert agent, as the
Senator correctly points out, applies to
other than U.S. citizens and says that
a covert agent means someone who
presently or formerly had an intelli-
gence relationship with the United
States.
This article in the Washington Star
of August 17 identifies the former
Chief of Station in Saudi Arabia, Ray-
mond Close, and states that he went
into business with Sheik Kamal
Adham. The article says that Adham
reportedly was a CIA connection in
Saudi Arabia.
The question is, assuming Adham
was formerly or is presently connected
with the CIA, "Is the author liable
under the Chafee amendment?"
Mr. CHAFEE. The thrust of the ar-
ticle that -the Senator from New
Jersey is referring to, as I have read it,
deals with Mr. Close, who is a U.S. citi-
zen but no longer an employee of the
Agency. So we are clear on him. He is
not covered under the bill.
Now, in the course of the article,
which was written some 3 years ago, It
refers to another gentleman who, it al-
leges, is a Mr. Adham. The article says
he is reportedly a former CIA agent in
Saudi Arabia.
The Senator from New Jersey asks,
Does the disclosure of his name sub-
ject the author to a penalty? The
answer to that, of course, depends on a
whole series of factors.
First, was this gentleman engaged in
a past or-present intelligence relation-
ship with the United States and was
his name classified information? I do
not know. That would have to be as-
certained.
Second, you have to go through the
other elements of the proof required,
which the Senator from New Jersey
listed earlier, the so-called six ele-
ments of proof. One of those elements
of proof evolves around a pattern of
'activity to identify and expose covert
agents.
If Mr. Leonard Curry had written a
whole series of articles dealing with
probing and the disclosure of the
names of agents and they were indeed
agents, active agents, or had been
agents, foreign agents, as this gentle-
man here, whom we do not know. then
it is possible he could come under the
provisions of our bill. That presents a
possibility. That well could be. But we
do not know.
As I say, we have to ascertain wheth-
er the elements, the six elements of
proof, have been met, including this
particular one I referred to as regards
whether he ever was an agent of the
Intelligence Agency of the United
States.
Mr. BRADLEY. Mr. President. I
would ask one more question of the
distinguished Senator from Rhode
Island. Assume that Adham was an
agent. Assume the reporter asked 20
people and ascertained that he was an
agent. Would Mr. Leonard Curry be in
violation of the law under the resson-
to-believe standard?
Mr CHAFEE. Mr. President. If you
take hypothetical cases, they all get
difficult. I think an easier case would
be a series of articles disclosing the
names of a series of agents. That
would be a clearer cut case, assuming
that the six elements of proof had
been met.
Indeed, they might well be met not
just under the reason to believe. but
under the intent standard. which is
the committee language.
So I cannot definitely say yes or no
in answering the question regarding
the investigative work that Mr. Curry
might have undertaken to ascertain
Mr. Adham's intelligence connection.
First of all you would have to find out
whether he was ever an agent-maybe
he was not.
Mr. BRADLEY. Mr. President. I
think I have heard something that Is
new to me. Maybe the Senator did not
mean to inject it. Did I hear the Sena-
tor Imply or say that there can never
be an isolated article. one isolated arti-
cle, that would violate the reason-to-
believe standard, that there has to be
a series of articles identifying a series
of agents? Those were the Senator's
words, if I recall.
Mr. CHAFEE. No, Mr. President, I
think if the Senator from New Jersey
studies the Record, I did not say that
there could never be a single article. I
said an easier case would be one which
involved a series, of articles disclosing
the names of a series of agents. In
other words, I will refer the Senator
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CONGRESSIONAL RECORD - SENATE March 1, 198$
from New Jersey again to the defini-
tions in which it states:
The term pattern of activities requires a
series of acts with a common purpose or ob-
jective.
Let us take a single situation, where
a reporter engaged in a series of acts
such as following a suspected agent to
work, seeking his telephone number,
making a whole series of background
checks on him, checking his prior ac-
tivities In the United States, where he
took his training, and so forth. If one
went through an elaborate process like
that, and, indeed, . knew that the
person involved was an agent, then
dlscloaing it as a part of this series of
acts would violate the provisions of
this bill.
Mr. BRADLEY. Mr. President, this
does not refer to a U.S. agent. This
.
refers to a non-U.S. citizen who once
had a relationship with the CIA. Does
the Senator think personally that If
Mr. Adham was an agent that this ar-
ticle violates the reason to believe
standard?
Mr. CHAFEE. Mr. President. the
answer to the Senator from New
Jersey cannot be given by me on the
basis of what I see here.
We previously discarded all the
other cases presented by the Senator
from New Jersey because in none of
them was the individual identified as
an employee of the CIA.
Here we are dealing with a category
where the- individual is not a U.S. citi-
zen and might possibly had a past con-
nection with the CIA. That is un-
known.
So, first of all, we-have to ascertain
that fact. Even If that were so, and let
us assume it for the sake of argument,
that he was a former employee of the
CIA, then you would have to find out
what kind of a pattern of activities Mr.
Curry followed in writing this article.
If he stumbled on a name and wrote. it
up without a whole series of checks to
find out what he was, then that would
be one act. But here he does not even
allege flatly that he had a CIA connec-
tion. He says reportedly. so presum-
ably he does ? not know ' and has not
done that extensive background
checking. On this basis, I do not be-
lieve Mr. Curry is covered under our
bill.
Mr. BRADLEY. Mr. President, this
Is precisely the kind of question which
has troubled me. This Is the kind of in-
formation that I believe the public
does have a right to know. However, I
will not discuss this article at greater
length.
Mr. President, I would like to go on
to a Washington Post article of July
11, 1979.
Mr. CHAFEE. Mr. President, might I
interject? If the Senator is troubled by
this situation. his troubles are not con-
fined, Mr. President, to the language
of the Chafee amendment.
He is troubled by the whole bill be-
cause, under the intent provision,
what he claims is true as well. The
definitions I am reading from are not
from the Chafee amendment, they are reason to believe that by identifying
from the legislation that was reported the name of an agent? present or
out by the Judiciary Committee. It former, it would in fact hurt that
may well be that the Senator has trou- person or hurt that particular effort
ble, as I say, with the whole bill. If so, but may very well, In the total scheme
let him say so and let the world know of things, be incredibly helpful.
it. But let him not direct his objections Mr. BRADLEY. Mr. President, the
to the reason to believe section alone. Senator is correct. That is exactly the
If he Is troubled by the whole bill, situation with the former Saudi agent
then he is troubled with trying to get this article refers to.
at the very problem we are trying to
solve, which is the disclosure of
agents' Identities.
Mr. BIDEN. Will the Senator yield
for a question?
Mr. BRADLEY. Mr. President, I do
not think the Senator from Rhode
Island had heard my entire speech. I
said unequivocally that legislation of
this type is necessary. I said it is my
intent to protect our agents abroad,
but that we have to balance on pro-
tecting our agents with preserving free
speech and a free press, and it is,
Indeed, the bill that came out of the
Judiciary Committee that I support
.without the Senator's amendment. It
is that bill that has the support of the
Justice Department and the Agency.
So, I think it is Incorrect for the Sena-
tor to imply that I do not strongly
support the protection of our agents.
I have posed a series of very specific
questions trying to clarify what the
Senator means, in real terms, by the
reason to believe standard. I frankly
do not know any effective way to do
that other than to give specific exam-
ples and have the proponent of the
reason to believe standard say wheth-
er he thinks it applies or not. That is
the whole purpose of this exercise.
Mr. CHAF'EE. Mr. President, no one
was challenging the Senator's concern
about protecting the agents. All I am
saying is that he has indicated he has
trouble with the response that I gave
to the article he produced by Mr.
Leonard Curry in the Washington
Star of August 19, 1978. My answer
was that if he has trouble, his trouble
does not revolve around the reason to
believe language. That is not what pre-
sents the trouble for the Senator, as I
see it. It is the language of the statute
Itself. Whether you take the intent or
whether you take the reason to be-
lieve, the same difficulties arise.
Mr. BIDEN. Will the Senator from
New Jersey yield for a question?
Mr. BRADLE7. I am pleased to
yield for a question.
Mr. BIDEN. Mr. President, the Sen-
ator from New Jersey has just been re-
butted on the grounds that the prob-
lem does not relate to reason to be-
lieve versus intent. Is it not true, in
the cases he has put forward, that the
reporter reporting those incidents
could have intended in fact to help,
not hurt, move forward, not impede,
the national intelligence capability of
this country?
Mr. BRADLEY. Yes, Mr. President
Mr. BIDEN. They could have and
should have had reason to believe that
it would, in some aspect of it, have
been detrimental. They could have
Mr. BIDEN. So there Is a distinct,
real difference. The Senator could
very well have trouble with reason to
believe in these cases and not at all
have trouble with the intent provision.
That is what this is all about.
I thank the Senator for yielding.
Mr. BRADLEY. Mr. President, while
I am sympathetic to the desires of my
colleagues to afford maximum protec-
tion to our covert intelligence person-
nel. I remain unpersuaded of the need
for the reason-to-believe standard. It
does not provide additional protection
to agents, but it will have a chilling
If this legislation passes with this
amendment, many Americans commit-
ted to preserving freedom of speech
and a free press will resist Its enforce-
ment and challenge its constitutional-
ity in the courts.
In the final analysis, therefore, the
Chafee substitute language will pro-
vide less-effective protection to our
agents than the version reported out
of the Judiciary Committee with the
Biden amendment. Thus. Mr. Presi-
dent. I urge my colleagues to support
S. 391 94 reported ,with the intent
standard.
Mr. CHAFEE. Mr. President, I
should like briefly to reply before we
engage in a colloquy.
The distinguished Senator from New
Jersey and the Senator from Delaware
and. I understand, the Senator from
Vermont, although it was not my
privilege to be here during his remarks
because of a prior commitment. insist
that the language that came out of
the Judiciary Committee, affords
better protection for our agents than
the language of the so-called Chafee-
Jackson amendment They may have
many, many reasons for apposing the
Chafee language but for them to
choose the particular reason that it af-
fords greater protection to our agents
just does not bear up. Distinguished
though these gentlemen are, and I un-
derstand the Senator from Vermont
has prosecuted thousands of cases, we
have on the opposite side of the ledger
those whose business it is to prosecute
such cases: The assistant attorneys
general and the Attorney General of
the United States. They are the chief
prosecutorial officers of this Govern-
ment. They are not just from this ad-
ministration but from the prior admin-
istration. They have said that the lan-
guage that is embodied In the Chafee-
Jackson amendment is the better lan-
guage from their point of view.
So I say to them,/please. gentlemen,
let us not come forward with the sug-
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gestion that you are supporting lan- the disclosure was engaged in collect- affirmative measures to concear an in-
guage that better protects covert ing intelligence, as opposed to being telligence relationship will depend
agents. Perhaps your language will engaged in covert action, or "special upon the facts and circumstances of
give some protection to agents. I am activities," as it is called and defined in each case. Such proof could be demon-
not disputing that. section 3.4(h) of Executive Order strated by showing that a current or
Later these gentlemen quote a letter 12333. former employment or other relation-
from Mi. Casey to the House Intelli- Mr. HEFLIN. I thank the Senator. ship of the defendant with the United
gence Committee that says that their He made mention in his response of States required or gave him such
language would be adequate. But they "affirmative measures"-that is, those knowledge. It could also be demon-
do not go on to say that, in a further actions which the United States takes strated by statements made in connec-
part of the letter from Mr. Casey, the to conceal a covert agent's classified tion with the disclosure or by previous
administration would far prefer the intelligence relationship. Unlike the statements - evidencing such . knowl-
Chafee language and has so testified. term "covert agent," the term "affirm- edge.
It is all In the RECORD. This is nothing ative measures" is undefined, even Mr. HEFLIN. I thank the Senator.
new we are producing here. The though it is used in each of the three His response evokes one final question:
former head of the CIA for President substantive criminal provisions. I Under the terms of the definition of
Carter, Adm. Stansfield Turner, and should like the Senator to explain just "covert agent," the identity or the in-
the members of the Justice Depart- *hat is meant.by the use of the term telligence relationship of those who
ment have all said the Chafee-Jackson "affirmative measures." the bill aims to protect must' be classi-
language is easier to prosecute. It is ' Mr. CHAFEE. The Senator from Al- fled. Why, then, is there a need for
clear. So these gentlemen ought to dis- abama is correct. The term "affirma- the prosecution to prove defendant's
card immediately the argument that tive measures" is not defined in the knowledge of "affirmative measures"
their language_permits the easier pros- bill. However, the legislative history of undertaken? Does this not render the
ecution of those who reveal names and the bill speaks to this question. Both prosecution's job virtually impossible?
that it provides better protection for the Senate Intelligence Committee Mr. CHAFEE. I assure the Senator
our agents. It simply is not esident, let more recently the Senate Judiciary that the language of the legislation we
Mr. BRADLEY. Mr. President, report from the last Congress and
are considering today has been care-
one read into the record at this point, Committee report of this Congress in- are idIt has been subjected t
one or two sentences from .the letter dicate that the reference to "affirma- the fully scrutiny crafted. of some e en finest legal
from the Director of the CIA, Mr, tive measures" is intended to confine mind? within the intelligence commu- .
Casey, in which he says: the effect of the bill to relationships nity, and the Justice Departments of
I must emphasize, however, that the ad- that are deliberately concealed by the both the Carter and Reagan aents s-
ministration's preference for S. 391, the United States. "Affirmative measures"
trations have studied this language
Senate version of the identities bill, remains could include the use of such tech- and are have studied that ang lane
unchanged. niques as, for example, the creation of andga she the
be-
a proper balance an-
I do not see any language here that a "cover" identity, such as a set of fic- guage she need toper t ance and
says it is far more preferable. titious characteristics and relation-
Mr. HEFLIN. Mr. President, I ships, to conceal the individual's true constitutional rights, while at the
same time providing the Government .
wonder if the distinguished Senator identity and relationship to an Intelli- with a statute that is effective and en-
are dealing effective a wen-
from Rhode Island would enter into a gence agency, or the use of clandestine forceable. Since that
colloquy with me pertaining to some means of communication to conceal ar freedom, that
questions that I have in regard to lan- the individual's relationship with U.S. our of speech, most eech. I do not feel that the
guage in this bill. Government personnel, or the restrict- burden placed on the United States Is
I notice that the term "covert agent" ing of any mention of the individual's boo difficult. n have United State is
is used in each of the three substan- true identity or intelligence relation- made it icult a terms of deliberately
etive criminal provisions in the bill- ship to classified documents and chan- made it if as to i elme is f subsection 601 (a), (b), and (c)-and nels. ohat fundamental fntsure of dem.
that it is specifically defined in subsec- Mr. HEFLIN. Does that, then, mean t
tion 606(4). I ask the distinguished that the Government will have to Classification the kind of ins alone ulation would not not pro-
Senator from Rhode Island whether prove knowledge on the part of the de- vide mere fact othat f s intelligence requi use of this term to refer to those fendant of each "affirmative- measure" The The mere n an inteli e re-
identities are being protected undertaken by the. United States with does e not rs in appears a classified ed docu-
whose -
implies that these individuals must be regard to a covert agent whose identi- went ment do that thnecessarily e United constitute is
involved in a particular covert action ty the defendant has disclosed. do we evidence affirmative mnites S t
conceal
would before the apply. protective scope of the bill intend to impose such a burden on the the relationship. It could mean that or
Mr. CHAFEE. I thank the distin- prosecution. Under the terms of this it eet could could not. be For classified instance,bec the clause docu-
of
guished jurist from Alabama for his legislation 'as drafted, the prosecution ment nt information a contains. cruse of
.very astute question, indicating the se- has a heavy burden in meeting six ele- other classified relation-
of a
riousness which has' characterized his ments of proof without imposing what the ship existence
review roof of
b cnough. The Gov-
today. of the bill we are considering might be impossible to prove-that is, th sh p wo must show in gh. The that
today. a defendant's knowledge of specific af- ernment t who s made the disclosure
The. answer to the Senator's ques- firmative measures being taken with the States was
tion is no: choice of the term "covert regard to a specific covert agent or knew person that the United al
covert affirmative agent's measures
agent" in no way is to be construed as even the fact that all affirmative taking
classified to intelli-
terms limiting protection afforded under the measures possible with regard to a the relationship.
terms of the legislation to those actu- particular covert agent were being geese Mr. HHEFLIN. Mr. President, I appre-
action. engaged in a particular covert taken at the time of the disclosure.
action. The legislation is designed to The Government need only show a de- ciate the indulgence and assistance of
cover all individuals engaged or assist- fendant's knowledge that the U.S. the distinguished Senator from Rhode
ing in foreign intelligence activities Government at the time of the disclo- Island in clarifying some of my con-
whose identity is classified and with sure was taking some steps to conceal cerns in regard to this most vital legis-
regard to whom, at the time of the dis- an intelligence relationship. Just as lation.
closure, the United States is taking af- the "affirmative measures" used for I am supportive of the goals of this
firmative measures to conceal such in- one covert agent may vary from those legislation and wholeheartedly com-
dividual's classified intelligence rela- used for another, depending on cir- mend Chairman THURMOND; the rank-
tionship. No distinction is drawn as to cumstances, so, too, proof of knowl- ing minority member of the Senate
whether the individual at the time of edge that the United States is taking Judiciary Committee, Senator BWDEN;
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81256 CONGRESSIONAL RECORD - SENATE March 1, 1082
Senator Dxrfrois, and Senator Cs*raa, available sources. This is something the sous free press. If it Is neoe . , to have a
for their efforts In this vital area of Congress has. never done before, except criminal statute to deter the "naming of
legislation and Its appropriate and during wartime. names" by a handful of malefactors bent
necessary goals. - When the problem of deliberately expos- upon destroying the CIA. it must be framed
Although, I am very concerned as to ing the names of agents arose several years In a way most likely to achiese that very
whether the objectives of this legisla- ago, it seemed to result mainly from rene- specific objective, without unnecessarily tade Lion will be met by Its present lan- used ~ormatj nn theyikhhaddhhobb Agee wwwhhio risking p interference with the freedom of the
guage. I do not profess to be an expert employed by the CIA. The first bills intro- I strongly urge my colleagues to support
in the area of intelligence, nor the In. duced to deal with this problem focused on S. 391 as reported by the Judiciary Commit-
terworkings of the Central InteUI- the breach of trust by government employ- tee.
gence Agency. I must defer to my col- ees and former employees who used their
leagues on the Select Committee on access to classified information to identify Mr. President. I suggest the absence
Intelligence for guidance in this area and expose U.S. intelligence agents. The of a quorum.
of legislation. But, as a lawyer. I look main Issue at that time was whether to irk The PRESIDING OFFICER. The
dude In those bills criminal penalties for Clerk will call the roll.
at an almost insurmountable burden outsiders who conspired with, or aided and
that a prosecutor would have to meet abetted, employees and former employees
in order to achieve a conviction under like Agee.
this legislation. Unfortunately, experience has shown that
. The language; In my opinion, in both the problem was not confined to the Agees
the House and the Senate versions of and their collaborator , but that It also re-
section 601(c), is potentially cumber- sulted from determined efforts to sift
for I to tifyin
some. repetitive, and counterproduc- fir agents. through public soech Information
not t rfeng
are for
tive, and I seriously question if its in. agents from The open n sources techniques
perfect?
tended purpose, as a deterrent to the and mistakes are often made. But the ef-
exposure of our Intelligence agents forts of those who seek, by these means, to
throughout the world, sill be accaom- destroy the CIA's effectiveness abroad have
plashed. I have spent a great deal of gained enough credibility overseas to pose a
time in reviewing this legislation and significant danger to the security`' of the
discussing it with colleagues, repr?- United $tptes and the physical safety of In-
sentatives of the Central Intelligence ~Thetaskk. there ore, hao this s been ~to velop
Agency, individuals concerned with Its statutory language that would deter these
first amendment ramifications, and activities without sweeping so broadly as to
discuss reporting,
questions ttiions foreign rights
many like most legislation, this of citizens to media
fortunately. bill Is a result of compromise. which fairs and intelligence policy. S. 391 as re-
rarely produces law in its best law- ported by the Judiciary Committee at-
guage. As I have indicated previously, tempts to meet these criteria through adop-
I support the objectives of this legisla- the then of an
Judiciary bill, oildisc o. Thus, s under
losure losure of the namees of
tion and will vote in favor of final pas- agents is criminalized only if done so with
sage of this legislation. but I have seri- an "intent to Impair or impede Intelligence
ous reservations as to the value and ef. activities."
fectiveness of this bill. The language proposed by Senator Chafes
I hope that my initial analysis of would adopt a lesser reason to believe stand
this concept, In Its present form, is in- ard. Undoubtedly Senator Chafee's lan-
accurate, and that this will be a true guage would make It easier to prosecute
deterrent to the vicious and heinous Journalists who dilose the names of
of the identity of our oagents. requirement I am concerned, however, that with-
disclosures agents and will achieve the goals that or Impede U.S. Intelligence tactivi activities, this
the administration, the U.S. Senate, legislation- will place journalists under too
and the proponents of this legislation great a jeopardy of criminal prosecution for
seek to accomplish. legitimate news reporting.
In describing committee efforts to It 13 important to understand that there
achieve a proposed goal, it is often can be situations where Investigative report-
cited "that the camel was the product Ing that results in the publication of agent's
of a committee whose purpose was to - Identities may serve legitimate public inter
ests. For r example, during consideration of
f
design a horse." I hope that we are this legislation last year, the Justice Depart-
creating a horse and not a camel. meat was asked whether Senator Chafee's
Mr. BIDE'N. ?Mr. President, I- rise to language would cover an investigative jour-
read into the Rxcoan the floor state- naltst's reporting the Identities of CIA em-
ment by Senator Iwouvr who strongly ployees engaged In a scheme to defraud the
supports the language that Is in the government by misusing funds intended for
bill now and does not support the covert operations. The response was, In
effect. of the Senator from Protect that the newsmen n in such in sdiscretion
cases, , and would
snd that
Rhode Island. He is unable to be here, the Justice Department would not bring
As we all know, he is deeply Involved charges even if the facts technically fit the
in preparations for a most distasteful law. This is precisely why the intent stand-
matter we are about to take up in the and In S. 391, as reported by the Judiciary
Senate. Committee, Is so essential. We must insure a
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. WALLOP. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it Is so ordered.
Mr. WALLOP. Mr. President, today,
thanks to Senator Cram, the Senate
will take another step toward giving
the men and women who west as clan-
destine collectors of Intelligence for
the United States the legal protection
they have thus far lacked. Today the
United States Is the only country in
the world where someone can wanton.
ly disclose the identity of a dandestine
agent and get away with It. It Is a trib-
ute to our country that. until recent
years, we did not need laws to pro-
scribe such behavior. Americans just
did not set up private Intelligence serv-
ices with the purpose of "blowing the
cover" of the intelligence agencies of
the U.S- Government. In recent years,
however. Precisely that has happened.
A few dozen Individuals. in consulta-
tion with our country's foreign en.
emies, have published lists of people
purported to be undercover agents of
American Intelligence.
In scale instances they hit their
mark; in some instances they implicat-
ed people with absolutely no connec-
tion to American Intelligence. But In
all cases they did harm. They endan-
gered individual lives and careers.
Above all, they harmed the security of
every man, woman, and child In the
United States by weakening our Intel-
ligence agencies' ability to gather vital
information abroad. In effect these
disclosures of agents' identities have
done much to plug up the eyes and
ears on which we depend to warn of
coming danger. It matters little how
they got those names. They got them
and have used them to do harm: This
we must stop. We must not just give
the appearance of stopping it, we must
actually have an enforceable law to
stop it. .
statement so my colleagues may hear guaramee for freedom of the press reliance 1-rat IS Why I am Opposed to section
it on the exercise of prosecutorial discretion is 601(c) of the bill as amended by the
simply unacceptable. Judiciary Committee. As one of the
S. 391 Is a significant departure from pre- It has been suggested that the legislative original authors of the bill, I once con-
vious statutes passed by the Congress to history of this legislation can make clear sidered writing the provision like this.
punish disclosure of Information In the na- the meaning of the language, so that legit- But, for goodness' sake. With 601(c)
tional security field. It would not only mate news reporting will not be deterred. punish publication of Information obtained Neither, in my view, Is this an acceptable so- like this, the prosecution would have
from access to classified Information, but lution. A requirement to prove intent to to prove six elements of the crime si-
would also punish the publication of infor- impair or Impede U.S. Intelligence activities multaneously, beyond a reasonable
mation derived entirely from open,, publicly is necessary to insure protection for a vig- doubt:
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CONGRESSIONAL RECORD -SENATE S 1257
First, that there was an Intentional
disclosure of information which did in
fact identify a covert agent;
Second, that the disclosure was
made to an individual not authorized
to receive classified information;
Third, that the person who made
the disclosure knew that the informa-
tion disclosed did in fact identify and
disclose a covert agent;
Fourth, that the person who made
the disclosure knew that the United
States was taking affirmative meas-
ures to conceal the covert agent's clas-
sified intelligence affiliation;
Fifth, that the disclosure was made
in the course of an effort to identify
and expose covert agents; and
Sixth, that the person making the
disclosure did so with the intent of im-
pairing or impeding the foreign intelli-
gence activities of the United States.
To pass the bill in this form would
be to pay lip service to protecting
agent identities while knowing well
that no one would probably ever be
convicted.
The bill's original intention is that
someone ought to go to jail if he has
disclosed the identities of agents "in
the course of a pattern of activities in-
tended 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." In other words, to
be convicted the suspect has to have
disclosed the identity or identities not
accidentally, but as part of an objec-
tive pattern of activities of his, and
has to have done it with reason to be-
lieve that it would hurt his country.
Who will argue that such a person
should not be in jail? Even the Carter
administration, not very sanguine
about this sort of thing, argued that if
anyone ran afoul of that standard he
should go to jail.
The legalistic objections to Senator
CHAFEE's efforts to restore the bill are
a mask for a much more fundamental
position, which we In the Intelligence
Committee have been arguing against
for years. According to this position,
although it may be permissible to
punish people with official access to
agents' identities who disclose those
identities, it is not permissible to
punish people who do not have official
access but who do the same thing.
That, in turn, is based on the pseudo-
constitutional contention that once
any information leaves the Govern-
ment, there is an absolute constitu-
tional right to publish it. But this con-
tention has no basis in the text of the
Constitution or in commonsense. I do
not see such right anywhere in the
Constitution. If anyone sees it, let him
point to the text. Such a so-called
right has even less basis in common-
sense.
It makes no sense to punish those
who disclose names of agents and to
give immunity to those who publish
them. The distinction between disclo-
sure and publication is a wholly artifi-
cial one. Even when the person 'who
learns the identity of an agent is dif-
ferent from the person who discloses it
to foreign enemies, we are compelled
to note that both contribute to the
process by which harm is done. Both
do harm both should go to jail. Be-
sides, the leakee is usually in concert
with the leaker. Whether or not the
two parties are in league with one an-
other is a question for a court to
decide.
There is no reason, it seems to me,
to punish the employee of an intelli-
gence agency for a disclosure. and not
to punish the person who takes that
information and brings it -to the
knowledge of those who are in a posi-
tion to do harm to the United States.
The employee who steals the informa-
tion is most often not the most impor-
tant person in that chain. He is most
often not the most malevolent party.
To punish only the employee would be
akin to saying that we would go after
only the clandestine agents of foreign
nations and not the case officers who
run them.
Moreover, what if Mr. Agee or any
other leaker teaches the art of finding
agents or finding other information to
other people and they, the outsiders,
use the skills to further grind out in-
formation harmful to the United
States? Apparently this is precisely
what happened. We now have people
who have never been employees of the
U.S. Government who have set up
what amount to be their own intelli-
gence service. They use open sources
and they try to find sources within the
U.S. Government. Their purpose is to
find out about the activities of U.S. in-
telligence agencies and to put a stop to
those activities by exposing them.
Why should the American people
put up with that?
Some of the' witnesses against this
provision have argued that there is an
absolute constitutional right for pri-
vate citizens to learn what they can
about our intelligence agencies and to
do what they will with that knowl-
edge. The first amendment's guaran-
tee of freedom of the press, so goes
the argument, allows the press to find
out what it can and publish what it
knows. Thank goodness this is just
wild talk and not part of the, Constitu-
tion. Otherwise the Constitution
really would be a suicide pact. Just
suppose for a moment that the press
and the judicial system took that
statement seriously. Each reporter
would believe it proper to act no dif-
ferently than a Soviet clandestine case
officer. He would recruit agents by
whatever means, and try to penetrate
American intelligence as deeply as he
could to find out the most sensitive in-
formation we had. Then he would
probably publish it to the world-
names of agents, frequencies, func-
tions of technical means, everything.
In war time such dutiful reporters
would send untold numbers of their
fellow citizens to their graves. The
Justide Department and the courts,
for their part, would just let it go on,
because, after all, the press: job in a
free society is to Inform' the public, is
it not? Well, I think all of that is very
clearly nonsense.
Those who oppose this provision on
the ground that it would mull legiti-
mate journalists do a disservice to le-
gitimate journalism. They maintain
perforce that there Is no objective cri-
terion for distinguishing between the
enterpirse of journalism and the work
of private intelligence services working
to impair or impede U.S. intelligence.
Journalists should feel insulted by the
comparison: I think that the differ-
ence between legitimate journalists
and the likes of Louis Wolf ls'obvious,
and that the language which Senator
CHAFES is trying to restore to the bill
is a good, sound legal test of that dif-
ference and a test which I suggest, Mr.
President, more than just passing, Is
critical to the future of this great Con-
stitution.
Mr. President, I yield the floor.
Mr. CRAB - Mr. President. I thank
the distinguished Senator from Wyo.
ming for that outstanding statement. I
personally want to express my appre-
ciation to him for that fine statement
and for his support. We are very grate-
ful. He is an influential Member of
this body and held in the highest re-
spect. The fact that he has chosen to
endorse the amendment that I am sup-
porting gives us a big boost.
Mr. President, I suggest the absence
of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. CHAFEE. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. CHAFEE. Mr. President, I ask
unanimous consent that we temporar-
ily lay aside the amendment which we
are presently considering, and take up
my amendment to delete section 603
of this bill.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered. ?
SECTION 603 OF S. 391
Mr. CRANSTON. I am concerned
about the implications for the confer-
ence situation of the motion of the
Senator from Rhode Island (Mr.
CHAFES) to strike section 603 from the
bill as reported. As the Senator knows,
the Judiciary Committee, on a strong
bipartisan vote of 11 to 7. specifically
amended the intelligence-agent-cover
requirement in section 603 to exclude
the Peace Corps. In agreeing to that
amendment offered by the Senator
from Montana (Mr. BAucts), the com-
mittee was clearly ratifying and pro-
posing to codify into law the 20-year-
old executive branch policy of com-
plete separation of the Peace Corps
from Intelligence activities. I worked
very closely with the Senator from
Montana, with the ranking minority
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member of the committee (Mr. BWWEN),
and other Senators on the committee
with regard to the need for this excep-
tion. In fact, earlier this year, I per-
sonally wrote each committee member
as well as the author of the bill (Mr.
CHAFEE) and spoke to many of them in
support of such an amendment.
Mr. President, I ask unanimous con-
sent that several of these letters be
printed in the RECORD at this point.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
UNIVERSITY OF GEORGIA.
SCHOOL OF LAW,
Athens, Ga., May 4, 1981.
Hon. JEREMIAH DENTON.
Chairman, Subcommittee on Security and
Terrorism, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
_Hon. JOSEPH R. Bmzm.
Ranking. Minority Member, Subcommittee
on Security and Terrorism, Committee
on the Judiciary, U.S. Senate, Washing-
ton, D. C.
DEAR SENATORS DENTON AND BIDEN: I am
writing in connection with S. 391, the pro-
posed Intelligence Identities Protection Act
of 1981. I understand that last year, in con-
nection with a similar bill which ultimately
was not enacted, the Committee on the Ju-
diciary voted, in accordance with the twenty
year old policy of absolute separation be-
tween the Peace Corps and United States in-
telligence, to except the Peace Corps from a
,statutory requirement that United States
Government agencies provide assistance to
maintain secrecy of the identity of officers
or employees of intelligence agencies. As
Secretary of State when that policy was
adopted, I would like to explain its genesis
and, in my opinion, continuing vitality.
The Peace Corps, as conceived and main-
tained, expresses the idealism and humanity
of the United States In its relations to other
countries, particuarly those of the Third
World. More than 80,000 Americans. mainly
young, have now served overseas, often
under conditions of hardship, to help meet
the need of Third World countries for
skilled manpower.
To permit the Peace Corps to be used as
cover for United States intelligence would
be inconsistent with this conception of the
Peace Corps. If people In foreign countries
thought it was being so used, whether their
belief was true or false, foreign countries
would not accept Peace Corps volunteers,
and, equally important, many highly moti-
vated Americans would not volunteer for
Peace Corps service.
Those who reject the separation policy
proceed, I suppose, from the premise that if
the United States is to carry out Intelligence
activities as it must, those activities require
cover. If the United States excepts the
Peace Corps from any obligation to provide
cover, then where does one draw the line.
First, the United States has repeatedly
stated and assured foreign' governments
that the Peace Corps was not and would not
be so used. So far as I know, this distin-
guished it from any other United States
government agency.
Secondly, any effort to use the Peace
Corps as cover would likely be vigorously
opposed by Peace Corps volunteers and
staff and would, therefore, not be feasible.
The argument has also been made that
format legislation should not legally circum?
scribe the President's discretion. The prob-
lem is that on Its face proposed Section 603
of the National Security Act of 1947 could
be interpreted as changing the historic
policy of absolute separation between the
Peace Corps and United States intelligence,
because proposed Section 603 does not
except the Peace Corps. Moreover, in my
opinion any action that suggests that the
United States has modified the policy of ab-
solute separation between the Peace Corps
and intelligence would also increase the
danger to Peace Corps volunteers and staff.
During the last twenty years there have
been countless examples of volunteers con-
tinuing to perform their duties despite civil
strife. Indeed, they have many times been
protected by the ordinary citizens with
whom they live and work from any harm.
Instability and terrorism have already sub-
stantially increased the dangers to Ameri-
cans abroad. These dangers Peace Corps vol-
unteers necessarily assume. The United
States should do nothing to increase these
risks.
Thus, I hope your subcommittee will, as
the Judiciary Committee did last year,
adopt an amendment to the proposed Sec-
tion 603 of the National Security Act of
1947 to confirm the separation between the
Peace Corps and Intelligence.
In closing, I would point out that when
the Peace Corps was born It was very clear
that it would not only refrain from any ac-
tivities of an intelligence nature but that it
would be separate from any role as an in-
strument of American foreign policy and
would not become an Instrument for use by
our embassies abroad or by the Department
of State. It was felt that it was vital that it
be recognized as an organization solely con-
cerned with the purposes for which the
Congress established it and would have no
other role whatever. The substance of the
recommendation for an amendment to Sec-
tion 603 has been discussed with former Sec-
retaries Cyrus Vance and Edmund Muskie
who endorse it fully. -
Respectfully submitted.
Hon. MAX BAUCUS;
U.S. Senate,
Washington, D.C.
DEAR MAX: Attached is a letter to the Ju-
diciary Committee Subcommittee on Secu-
rity and Terrorism from Dean Rusk regard-
ing S. 391, the proposed "Intelligence Iden-
tities Protection Act of 1981". I think it's an
excellent letter, and I hope you'll read it
fully. It makes the case most persuasively. I
think, for exempting the Peace Corps from
the requirement to be added in proposed
section 603 by the bill that each Federal
agency designated by the President provide
all possible cover to U.S. intelligence activi-
ties.
Last year the Judiciary Committee ap-
proved on a 7-6 vote such an exception to
the predecessor of S. 391 (S.1 2216)-also in-
cluding AID In the exception.
I urge that you support a Peace Corps ex-
ception to section 603. According to the Ad-
ditional Views of Senators Thurmond,
Laxalt, Hatch, Dole, and Simpson in last
year's report, they fully supported the tradi-
tional view that "the Peace Corps has never
providMi-and should never provide-such
cover and it has been effectively precluded
from doing so by statute. . We do not
wish to revoke the Peace Corps statutory
exemption.... But we do not wish to estab-
lish any further exemptions...." S. Rept.
No. 96-990, page 39. (Emphasis mine.)
Thus, the opposition in the Judiciary
Committee to an exception for the Peace
Corps last year was based on the predicate
that it already had a statutory exemption.
But that is a mistake. There is not and
never has been any such exemption in law.
There is a long-standing Executive Branch
policy to this effect, but it is a policy that
could be altered at any time unilaterally by
the Executive and one that would seem to
be drawn into serious,questim by the subse-
quent enactment of this now cover-giving
obligation.
Although a President could choose to con-
tinue the exemption after enactment of the
bill, the critical point to note here relates to
the perception overseas-which lies at the
very heart of the policy to begin with. As
the Committee report stated at page 20 last
year.
"The rationale for baring such use of the
Peace Corps has been acknowledged by
every President since its formation. Because
of 'the vital impprtance of Peace Corps Vol-
unteers and staff being able to fulfill their
essential purpose of building links between
the United States and the peoples of devel-
oping countries at the graanoots level, of
providing practical and humanitarian assist-
ance on a voluntary basis and of demon-
strating through the personal commitment'
of the volunteers the Interest of American
citizens in the welfare of individuals in de-
veloping countries, the Peace Corps also has
been substantially separate from the formal
day-to-day official relations of governments.
It is, has been, and must continue to be
completely and absolutely separated from
all intelligence activities. For that reason,
the Peace Corps specifically bars individuals -
with any intelligence background from vol-
unteer or employee positions with the Peace
Corps. In addition to being barred from
using Peace Corps volunteers as cover.
under current Presidential policy directives,
the intelligence community also has been
barred from contacting, questioning or in
any other way of seeking to use volunteers
as intelligence sources. To insure that sec-
tion 503 is not perceived as altering the
independence of the Peace Corps, the. Com-
mittee adopted this amendment excluding
that agency from the provisions of this sec-
tion." (Emphasis added.)
I'd very much appreciate an opportunity
to discuss this matter with you after you've
reviewed this material and before you cast
your vote in Committee. I consider such a
statutory exception indispensable to the in-
tegrity of the Peace Corps, the safety of its
workers overseas, and the future effective-
ness of this very worthwhile program.
Cordially,
Alas CRANSTON.
Hon. JoH:N H. CHAFES,
U.S. Senate,
Washington, D.C.
DEAR JOHN: Attached is a letter to the Ju-
diciary Committee Subcommittee on Secu-
rity and Terrorism from Dean Rusk regard-
ing S. 391, the proposed "Intelligence Iden-
tities Protection Act of 1981". 1 think it's an
excellent letter, and I hope you'll read it
fully. It makes the case most persuasively. I
think, for exempting the Peace Corps from
the- requirement to be added in proposed
section 603 by the bill that each Federal
agency designated by the President provide
all possible cover to U.S. Intelligence activi-
ties.
Last year the Judiciary Committee ap-
proved on a 7-6 vote such an exception to
your predecessor bill to S. 391 (S. 2216)-
also including AID in the exception.
When you reintroduced your bill this
year, you did not include such an exception.
I urge you to reconsider and support a
Peace Corps exception. According to the Ad-
ditional Views of Senators Thurmond,
Laxalt, Hatch. Dole, and Simpson in last
year's report, they fully supported the tradi-
tional view that "the Peace Corps has never
provided-and should never provide-such
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cover and it has been effectively precluded
from doing so by statute .... We do not
wish to revoke the Peace Corps statutory ex-
emption .... But we do not wish to estab-
lish any further exemptions ..... S. Rept.
No. 96-990, page 39. (Emphasis mine.)
Thus, the opposition in the Judiciary
Committee to an exception for the Peace
Corps last year was based on the predicate
that it already had a statutory exemption.
But that is a mistake. There is not and
never has been any such exemption in law.
There is a long-standing Executive Branch
policy to this effect, but it is a policy that
could be altered at any time unilaterally by
the Executive and one that would seem to
be drawn into serious question by the subse-
quent enactment of this new cover-giving
obligation.
Although a President could choose to con-
tinue the exemption after enactment of the
bill, the critical point to note here relates to
the perception overseas-which lies at the
very heart of the policy to begin with. As
the Committee report stated at page 20 last
year:
"The rationale for barring such use of the
Peace Corps has been acknowledged by
every President since its formation. Because
of the vital importance of Peace'Corps Vol-
unteers and staff being able to fulfill their
essential purpose of building links between
the United States and the peoples of devel-
oping countries at the grassroots level, of
providing practical and humanitarian assist-
ance on a voluntary basis and of demon-
strating through the personal commitment
of the volunteers the Interest of American
citizens in the welfare of individuals in de-
veloping countries, the Peace Corps also has
been substantially separate from the formal
day-to-day official relations of governments.
It is, has been, and must continue to be
completely and absolutely separated from
all intelligence activities. For that reason,
the Peace Corps specifically bars individuals
with any intelligence background from vol-
unteer or employee positions with the Peace
Corps. In addition to being barred from
using Peace Corps volunteers as cover,
under current Presidential policy directives,
the intelligence community also has been
barred from contacting, questioning or in
any other way of seeking to use volunteers
as Intelligence sources. To insure that sec-
tion 503 is not perceived as altering the
independence of the Peace Corps, the Com-
mittee adopted this amendment excluding
that agency from the provisions of this sec-
tion."(Emphasis added.)
I'd very much appreciate an opportunity
to discuss this matter with you after you've
reviewed this material. I consider such a
statutory exception indispensable to the in-
tegrity.of the Peace Corps, the safety of Its
workers overseas, and the future effective-
ness of this very worthwhile program, and I
hope you will agree and, if so, will urge the
Judiciary Committee to except the Peace
Corps.
Cordially,
ALAN CRANSTON.
Mr. CRANSTON. Mr. President,
thus, I was extremely gratified by the
fine leadership of the Senator from
Montana (Mr. BAUCUS) on this issue
and the committee's action in adopt-
ing the amendment.
However, Mr. President, as I said,
the pending amendment by the bill's
author, the Senator from Rhode
Island (Mr. CHAFEE), is a matter of
concern because of the situation that
would obtain in conference with the
House which has passed H.R. 4 with
section 603 and no Peace Corps excep-
CONGRESSIONAL RECORD - SENATE
tion. I would, therefore, like to ask-the -
Senator from Rhode Island several
questions about this conference situa-
tion.
Mr. BAUCUS. Mr. President," will
the Senator from California yield?
Mr. CRANSTON. I am delighted to
yield.
Mr. BAUCUS. I have discussed this
matter with the Senator from Califor-
nia and very much share his concerns.
I believe it needs to be very clearly un-
derstood ? in consideration of this
matter that the Senate's position is to
be strongly in support of an explicit
statutory exception for the Peace
Corps if any legislation is to be en-
acted with an intelligence-agent-cover
requirement along the lines of section
603 in H.R. 4 as passed by the House.
Mr. TSONGAS. Mr. President, as a
former Peace Corps volunteer, I would
say that I very much share these con-
cerns, as I know does my colleague
from Connecticut (Mr. DODD), who
also served as a Peace Corps volunteer.
Mr. CRANSTON. I thank the Sena-
tors for their good words and ask the
Senator from Rhode Islapd whether
he agrees with the statement of the
Senator from Montana with respect to
the very clear will of the Senate on
the question of the need for an "ex-
plicit statutory exception" if an intelli-
gence-agent-cover provision like sec-
tion 603 is in the bill?
Mr. CHAFEE. I do agree. In fact, I
wish to make very clear that in offer-
Ing this- amendment, I am not in any
way disagreeing with the critical im-
portance of maintaining the historic
total separation of the Peace Corps
from intelligence activities. Indeed, I
fully support that policy. As I ex-
plained to the. Senator from California
(Mr. CRANsTON) in my letter to him
earlier this year, section 603 of S. 391
would require departments and agen-
cies of the Government designated by
the President to provide assistance for
intelligence cover arrangements. The
section does not require the Peace
Corps or any other agency to provide
cover. Nor does it designate any specif-
ic agency for this purpose. All that the
section does is to provide that cover be
effective.
In my judgment, it is unnecessary
and unwise to put into any bill a list-
ing of agencies which are not to pro-
vide cover for intelligence personnel.
This sort of listing would not be be-
lieved by people overseas-in fact, it
might tend to highlight the suspected
relationship between the Peace Corps
and the intelligence community. At
the same time, it could focus the at-
tention of terrorists and other parties
on the representatives of other, unlist-
ed Federal agencies who have people
serving abroad.
Recently the Director of Central In-
telligence wrote to the Director of the
Peace Corps on just this issue and
said:
Let me personally emphasize that I do not
advocate and would indeed firmly oppose
any designation of the Peace Corps for
S 1259
cover support. I can assure you that I have
no intention of seeking to use the Peace
Corps to provide cover for clandestine intel-
ligence collection, and I certainty do not
intend to change the longstanding CIA
policy barring such use of the Peace Corps.
It is not the intent of subsection 603(a) to
foster secret directives at odds with this
publicly stated policy, which has been in
effect since 1961, the same year the Peace
Corps was established.
It is my understanding that Director
Casey's statement represents the posi-
tion of this administration, and ' that
this administration has no intention of
departing from this policy in the
future.
In spite of all these assuraa(ces, how-
ever, the perception still seems to exist
in some minds that this section of S.
391 adversely affects the Peace Corps.
On this basis, I am prepared to drop
section 603 from the bill altogether as
this appears to be the best solution to
the problem. I will support this. posi-
tion in conference as well.
Mr. President, I ask unanitlmous con-
sent that my letter to Senator CRAN-
STON, and Director Casey's letters on
this matter, be inserted Into the
RECORD.
There being no*obllection, the letters
are ordered to be printed in the
RECORD, as follows:
ATTACHMENT 2 (CuAFEE)
U.S. SmTrI
Washington, D.C. June22, 1981.
Hon. ALAN CRANSTON,
Russell Senate Office Building, U.S. Senate,
Washington, D.C.
DEAR ALAN: Thank you for contacting me
regarding the Intelligence Identities Protec-
tion Act of 1981 (S.391), and your Interest in
a "Peace Corps" amendment to this bill.
As you recall, the Senate-Committee on
the Judiciary last year added such an
amendment to S. 2216, my predecessor to S.
391, when it reported the bill. In reintroduc-
ing the legislation this year, I did not in-
clude a Peace Corps provision for several
reasons.
First, S. 391 requires the President to es-
tablish procedures to ensure that undercov-
er intelligence officers and employees re-
ceive effective cover. This provision of the
bill does not, however, stipulate which ele-
ment of government shall provide assist-
ance, or what that assistance will be. In
other words, as currently drafted, S. 391
does not require the Peace Corps, or any
other agency, to provide cover at all. It
simply requires that cover be effective.
'Second, in my judgment, it is unnecessary
and unwise to put into any bill a listing of
agencies which are not to provide cover for
intelligence personnel. this sort of listing
would probably not be believed by people
overseas-in fact, it might tend to highlight
the suspected Peace Corps/intelligence rela-
tionship. Moreover, it would automatically
focus the attention of foreign governments,
terrorists and others on the representatives
of other unlisted federal agencies who have
people serving abroad.
Third, to my knowledge, the Intelligence
community never has, and never will, use
the Peace Corps for intelligence purposes.
This is due in part to the special nature of
the Peace Corps, which every administra-
tion has understood and respected But It is
also due to the fact that representatives of
the Peace Corps do not have the sort of
access overseas which would provide the In-
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CONGRESSIONAL RECORD-SENATE March 1, 1982
telligence community with the sort of infor-
mation they need. Thus. I see no need to
legislate against something which is not
now a problem, and which shows no likeli-
hood of becoming a problem.
I realize that the Pauken nomination has
tended to focus Congressional attention on
the special role of the Peace Corps. and I
appreciate your concern that this special
status be maintained. I believe strongly,
however, that this Is not a real issue with
regard to S. 391. I also believe that an effort
to legislate an exemption for the Peace
Corps in this case will do more harm than
good.
Once again, thank you for raising this
issue with me. I appreciate your interest in
S. 391.
Warm regards,
Sincerely,
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., July 15, 1981.
Hon. LoRET MtLLEIt RUPPE,
Director, Peace Corps,
Washington, D.C.
DEAR MRs. Rupps: Your letter of June 25,
1981, requested my views regarding policies
governing cover relationships between CIA
and the Peace Corps In connection with S.
391, the Intelligence Identities Protection
Act, which will be considered by the Senate
Judiciary Committee soon. Companion legis-
lation. H.R. 4, is also pending in the House.
I understand that you are concerned with
a provision in that proposed legislation that
would require departments and agencies of
the government designated by the President
to provide assistance for cover arrange-
ments to provide whatever assistance the
President deems necessary to effectively
maintain the secrecy of intelligence officers
and employees. This language does not man-
date that the Peace Corps or any other par-
ticular agency provide cover for intelligence
personnel. Moreover, I do not advocate and
would oppose any designation of the Peace
Corps as an agency required to provide
cover support. For these reasons. I am sure
that you will agree that there is no need for
a specific statutory exclusion of the Peace
Corps from the cover provision of the pro-
posed bill. Moreover, such a proposed
amendment would be misleading for it
would suggest that CIA desires to change its
policy in this regard.
I can assure you that.I have no intention
of seeking to use the Peace Corps to provide
cover for clandestine intelligence collection
conducted by Central Intelligence Agency
personnel. I certainly do not intend to
change the long-standing CIA policy barring
such use of the Peace Corps, which is re-
flected in existing regulations.
Thank you for the opportunity to express
my views. I hope that I have reassured you
regarding CIA intentions. If you have any
specific questions whatsoever regarding our
policies. my General Counsel,. Mr. Stanley
Sporkin, will be happy to answer them. I
look forward to an amicable relationship
with you in the future.
Sincerely,
WILLIAM J. CASEY,
Director of Central Intelligence.
PEACE CORPS,
Washington, D.C., June 25, 1981.
Elora. WILLIAM J. CASEY,
Director, Central Intelligencq Agency. Wash-
ington, D.C.
DEAR MR. CASEY: As we both begin our
work with the new Administration, I write
to you about a matter of mutual concern to
our agencies. Specifically. I would like to
bring to your attention the bill S. 391, the
Intelligence Identities Protection Act which
will be considered by the Senate Judiciary
Committee soon. As you know, throughout
the 20 year -history of the Peace Corps,
there has been a deliberate effort to keep
separate our volunteers from any Intelli-
gence-gathering role. In connection with
that policy, we have evolved our intelligence
policy which bars former CIA employees,
and others who have been in the Intelli-
gence-gathering business since less than 10-
years prior to their application, from serv-
ing in the Peace Corps,.
As you know, this policy has been in-effect
for the past twenty years and was last reaf-
firmed by our predecessors in 1978. 1 under-
stand that your agency has very recently ex-
pressed the position that. you have no inten-
tion of deviating from your current regula-
tions prohibiting cover arrangements involy-
ing the Peace Corps and that it is not your
intention to foster secret regulations at odds
with those regulations which have been in
effect for the past twenty years.
I look forward to hearing from you direct-
ly as to the CIA position on this matter. I
think that it would be to our mutual benefit
to share this correspondence with appropri-
ate members of Congress, so that there will
be no mistake as to the Peace Corps' total
separation from the function of intelli-
gence-gathering.
Sincerely,
LoREr MILLER RUPPE,
Director.
CENTRAL INTELLIGENCE AGENCY;
Washington, D.C., September 14, 1981.
Hon. STROM H. THURMOND,
Chairman, Committee on the Judiciary, U.S.
Senate, Washington, D.C.
DEAR MR. CHAIRMAN: I am writing to you
because of concerns about Central Intelli-
gence Agency and the Peace Corps which
several Senators have expressed to me in
connection with S. 391, the Intelligence
Indentities Protection Act, which the
Senate Judiciary Committee will consider
on Tuesday, 15 September.
Subsection 603(a) of the Bill would re-
quire departments and agencies of the gov-
ernment designated by the President to pro-
vide assistance for intelligence cover ar-
rangements. The language of this provision
does not require the Peace Corps or any
other agency to provide cover for intelli-
gence personnel. The authority to designate
which agencies shall provide such cover is
left where it currently resides and should
remain, that is, with the President.
. Let me personally emphasize that I do not
advocate and would indeed firmly oppose
any designation of the Peace Corps for
cover support. I can assure you that I have
no intention of seeking to use the Peace
Corps to provides cover for clandestine intel-
ligence collection, and I certainly do not
intend to change the long-standing CIA
policy barring such use of the Peace Corps.
It is not the intent of subsection 603(a) to
foster secret directives at odds with this
publicly stated policy, which has been in
effect since 1961, the the same year the
Peace Corps was established.
It would be unwise, however, to put Into
the Identities legislation a listing of agen-
cies which are not to provide cover for intel-
ligence personnel. Such a listing would not
be believed overseas. It would serve only to
focus foreign intelligence services, violence-
prone individuals, and terrorist groups in
the overseas personnel of Federal agencies
not included in the listing.
For these reasons. I am sure that you will
agree that there is no need for a specific ex-
clusion of the Peace Corps from the cover-
related provision of the Identities Bill. I
trust I have reassured you regarding. CIA in-
tentions. I am enclosing for your informa-
tion recent correspondence to the same
effect between the CIA and the Peace
Corps. -
Sincerely.
WILLIAM) CASEY,
Director of Central Intelligence.
Enclosures.
Mr. CRANSTON. Do the distin-
guished floor managers. the Senator
from Alabama (Mr- Dsxmw) and the
Senator from Delaware (Mr. BIns.I),
also agree with the Senators from
Rhode Island and Montana that in
dropping section 603 it will be the very
clear will of the Senate that if there Is
to be a section 603 in the bill. it must
contain an exception for the Peace
Corps? -
Mr. DENTON. Yes.
Mr. BIDEN. Very much so. That is
the Senate's clear will.
Mr. CRANSTON. I thank the Sena-
tors. Thus, would they also agree that
should the Chafee amendment be
adopted-and I will support It-and
the Senate turns out to be unable to
convince the other body in conference
to delete section 603 from the confer-
ence agreement, then the Senate con-
ferees must insist that section 603 can
stay in the conference report only if
the Peace Corps exception as reported
from our Judiciary Committee is
added, and that the Senate conferees
will be unyielding on this point?
Mr. CHAFEE. Mr. President, I agree
with the analysis of the Senator from
California and assure him that that
will be my position if I am named a
conferee. %
Mr. DENTON. Mr. President, I agree
also and will in conference certainly
forcefully advocate the Senate posi-
tion on this, as the Senator from Cali-
fornia and the Senator from Rhode
Island have described it.
Mr. BIDEN. Mr. President, I also
will be adamant on this point in the
conference: Either strike section 603
entirely or amend it to Insert the spe-
cific Peace Corps exception. ,
Mr. CRANSTON. Mr. President, I
thank the Senators very much, and
greatly appreciate their cooperation in
clarifying this matter so very impor-
tant to the future integrity and effec-
tiveness of the Peace Corps.
Mr. BAUCUS. Mr. President, I
concur with my colleague from Cali-
fornia and thank my fellow committee
members and the bill's author, Sena-
tor CHAFES.
Mr. CRANSTON. Finally, Mr. Presi-
dent, whether or not there is section
603 in the conference report, does the
author of the bill agree that the con-
ferees should be urged to state that
the provisions of section 1.6(a) of the
recently issued Executive Order No.
12333, relating to cooperation of Fed-
eral agencies with the Director of Cen-
tral Intelligence, should not be con-
strued as altering in any way the his-
toric policy of complete separation of
the Peace Corps from intelligence ac-
tivities?
Mr. CHAFEE. I agree.
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CONGRESSIONAL RECORD - SENATE S 1261
Mr. BIDEN. I share that view as
well.
Mr. LEAHY. Mr. President, I have
listened to this discussion with great
interest and note that, as a member of
the judiciary subcommittee that han-
dled this bill and a strong supporter of
the Peace Corps, I share fully the con-
cerns of the Senators from California,
Montana, Massachusetts, and Con-
necticut, and endorse completely the
agreement with the bill's author and
floor managers as to both the Senate's
clear will on this matter and the posi-
tion of the Senate conferees in.confer-
encb.
UP AMENDMENT No. 823
(Purpose: To strike out section 603 relat-
ing to procedures for establishing cover for
intelligence officers and employees.)
Mr. CHAFEE. Mr. President, I send
an unprinted amendment to the desk
and ask for its immediate considera-
tion.
The PRESIDING OFFICER. The
clerk will report.
The assistant legislative clerk read
as follows:
The Senator from Rhode Island (Mr.
CHAFEE) proposes an unprinted amendment
numbered 823.
Mr. CHAFEE. Mr. President, I ask
unanimous consent that further read-
ing of the amendment be dispensed
with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
On page 5, strike out lines 4 through 23.
On page 6, line 2, strike out "SEC. 604."
and insert,in lieu thereof "SEC. 603.".
On page 6, line 9, strike out "SEC. 605."
and insert in lieu thereof "SEC. 604.".
On page 6, line 13, strike out "SEC. 606."
and insert in lieu thereof "SEC. 605.".
On page 9, immediately after line 10,
amend the table of contents to read as fol-
lows:
"TITLE VI-PROTECTION OF CERTAIN NATIONAL
SECURITY INFORMATION
"Sec. 601. Protection of identities of certain
United States undercover 'in-
tellgence officers, agents, infor-
mants, and sources.
"Sec. 602. Defenses and exceptions.
"Sec. 603. Extraterritorial jurisdiction.
"Sec. 604. Providing information to Con-
gress,
"Sec. 605. Definitions.".
Mr. CHAFEE. Mr. President, I move
the adoption of the amendment.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment of the Senator from Rhode
Island (Mr. CHAFEE.)
The amendment (UP No. 823) was
agreed to.
Mr. BIDEN. Mr. President, I move to
reconsider the vote by which the
amendment was agreed to.
Mr. CHAFEE. Mr. President, I move
to lay that motion on the table.
The motion to lay on the table was
agreed to.
AMENDMENT NO. 1256
Mr. CHAFEE. Mr. President, I ask
that we now return to the considera-
tion of the amendment which was the
business before the Senate prior to the
disposition of the last amendment.
The PRESIDING OFFICER. The
Senate will not return to its considera-
tion.
Mr. CHAFER Mr. President, I sug-
gest the absence of a quorum.
Mr. BIDEN. Mr. President, will the
Senator withhold that for a moment?
Mr. CHAFEE. Yes..
Mr. BIDEN. Mr. President, we are
winding down. My understanding is
that we are going to be closing up
fairly soon on this issue for today.
Senator DURENaERCER, Senator
GORTON, Senator SPECTER, and several
other Senators have an interest in
speaking on this bill. I have discussed
this with the Senator from Rhode
Island. He is also anxious for them to
have their opportunity to discuss this.
Although we have not agreed on a
? time certain to vote on this measure
tomorrow, we have all been operating
under the assumption that we would
vote tomorrow.
I want to ask the Senator from
Rhode Island if his understanding is
the same as mine, that if we do vote
tomorrow, or before we vote, whether
it is tomorrow or whenever, that we
will have an opportunity to hear from
those Senators I have mentioned, and
possibly several others who would
wish to add to this debate, and that
also each of us will have an opportuni-
ty to spend 15 minutes or so summa-
rizing our position,
Is that what he understands the
leadership position to be generally?
Mr. CHAFES. Yes, Mr. President,
definitely. -
As I understand the proceedings to-
morrow, as soon as we come in, we
move immediately to the Department
of Justice authorizations bill. There
will be some votes on that at around 2
o'clock.
The PRESIDING OFFICER. If the
Senator from Rhode Island will in-
dulge the Chair, he will refer to the
order which is pending. The present
order reads as follows:
Ordered, That at 9:30 a.m. on Tuesday.
Mar. 2. 1982, the Senate resume considera-
tion of S. 951, a bill to authorize appropri-
ations for the purpose of carrying,out the
activities of- he Department of Justice for
fiscal year 1982, and for other purposes and
at that time there be not to exceed '2 hours
of debate, to be equally divided and con-
trolled, on the Johnston amendment No.
1252,. and that upon the disposition thereof,
the Senate proceed without debate, motion,
point of order, or appeal, to the disposition
of the Heflin amendment No. 1235.
Ordered further, That these two amend-
ments be_the only amendments in order.
Ordered further, That upon the disposi-
tion thereof, without intervening debate,
motion, point of order, or appeal, third read-
ing occur, to be followed immediately with-
out intervening debate, motion, or point of
order by final passage of S. 951, as amended,
and that no debate be permitted on a
motion to reconsider. (Feb. 25, 1982.)
Let me inquire of the Parliamentar-
ian.
The Chair will note that there is no
time limit on the amendment of the
Senator from Alabama, amendment
No. 1235. The Chair is now informed
that there is no time limit at all.
Mr. CHAPEE. Mr. President. I want
to assure the Senator from' Delaware
that the Senators he referred to will
have an opportunity to be heard.
There is no question about that. There
is no time limit, actually, on this bill
which is before us. So they will be
heard.
It would be my understanding that
probably their discussions would take
place tomorrow afternoon, following
the votes which have been ordered,
but that we would not proceed to any
votes on this matter tomorrow.
Mr. BIDEN. If the Senator will.
yield, I obviously do not object. There
has been a good deal of comity be-
tween the Senator and myself on this
issue. I just want to make sure that
our colleagues, when they read the
RECORD, will know what is likely to
happen tomorrow.
We have been operating under the
assumption, though there has been no
time agreement, that we would be
voting on this tomorrow. At least now
it looks like there is a possibility we
will not be voting on it tomorrow. The
Senator from Delaware is prepared,
once those few Senators speak, to go
forward, but I understand there may
be other exigencies which would make
it difficult for us to vote.
I did not intend to pin the Senator
down. I wanted a sense of where we
are going. That answers my question
and I do not have a further question
on that issue.
Mr. CHAFES, Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll- -
The legislative clerk proceeded to
call the roll.
Mr. BAKER. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BAKER. Mr. President, S. 391,
the Intelligence Identities Protection
Act, is now before the Senate, and I
want to take this opportunity to com-
mend the distinguished Senator from
Rhode Island, Senator CHAFER, and
the distinguished manager of the bill,
Senator DENTON. Their patience and
dedication has been most appreciated,
and their efforts on behalf of U.S. se-
curity interests have been crucial to
the development of this important leg-
islation.
As President Reagan wrote in a
letter to me last month,
Legislation to make criminal the unau-
thorized disclosure of the names of our in-
telligence officers remains the cornerstone
for the improvement of our Intelligence ca-
pabilities. Nothing has been more damaging
to this effort than the pernicious disclosures
of the names of officers whom we send
abroad on dangerous and difficult assign-
ments.
Mr. President, I support this legisla-
tion, and I urge my colleagues to do
the same. This is a matter whose im-
portance cannot be overemphasized.
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CONGRESSIONAL RECORD --SENATE March 1, 1982
? Mr. METZENBAUM. Mr. President,
I rise in opposition to the amendment
that would permit criminal prodecu-
tion for disclosing intelligence agents'
identities without a showing of an
intent to impair U.S. foreign intelli-
gence activities. I want to commend
the distinguished Senator from Dela-
ware, Senator BrnSN, for the admira-
ble job he has performed in handling
this most difficult issue.
Mr. President, we are ligislating in
an extremely difficult area here. Un-
questionably we 'have an obligation to
safeguard the lives of agents engaged
in activities which protect our national
security. We must condemn any ac-
tions that intentionally endanger the
lives of intelligence agents in order to
distrupt our foreign intelligence activi-
ties. At the same time, however, we
have no more urgent mission than the
protection of the press' freedom to in-
vestigate and report on matters that
are in the public interest. For 200
years the maintenance of a free press
has been the core of our constitutional
way of government. To the maximum
extent possible, we must continue to
permit the press to function without
encumbrance.
The legislation before us today,'Mr.
President, attempts to balance these
two very delicate matters. As my good
friend from Delaware well knows,. that
is not an easy task.
The Judiciary Committee, after ex-
tensive consideration of the issue, ar-
rived at a reasonable method for pro-
tecting our national security and the
safety of Individual intelligence agents
without compromising the freedom of
the press to report on matters in the
public interest. By requiring proof of
an intent to Impair or impede our for-
eign intelligence activities, the bill as
reported by the Judiciary Committee
adequately protects against the kinds
of identity disclosure which all of us
condemn. At the same time it protects
members of the press who have a le-
gitimate interest in investigating and
reporting on corrupt, illegal, improper,
or questionable intelligence activities
under circumstances where the identi-
ties of covert agents are necessary to
the story. The bill as reported by the
Judiciary Committee represents a
proper balancing of these two compet-
ing concerns.
The proposed amendment to substi-
tute a reason-to-believe standard
would, however, tip the balance
against legitimate reporting in the in-
telligence area. It would have a chill-
ing effect on the kind of journalistic
endeavors which the first amendment
is meant to protect.
Moreover, there is no need to tip the
balance in this fashion. It is my under-
standing that both the CIA and the
Department of Justice have indicated
their. satisfaction with the bill as re-
ported by the Judiciary Committee. If
these clearly self-interested parties are
satisfied that the bill with the intent
language adequately safeguards
agents' identities, then why should we
enact legislation that has an even type of activity. The bill prohibits the
greater chilling effect on legitimate unauthorized disclosure of Intelligence
press activities? agents and directs the President to
More than 140 constitution scholars, take steps to insure the secrecy of in-
including some of our leading first
amendment experts, have stated un-
equivocally that the reason-to-believe
standard will not pass constitution
muster. Why then should we enact
such a standard, especially if the intel-
ligence agencies themselves do not be-
lieve it Is essential?
A free press in this country is too
precious a right to impair in this
manner. I urge my colleagues to join
me in opposing this amendment.?
? Mr. HAYAKAWA. Mr. President, it
seems as thoygh we in the United
telligence relationships.
Section 601(a) and (b) of the act set
stiff penalties for those who misuse
their authorized access to classified in-
formation by disclosing the identities
of covert agents.
Section 601(c) targets those who
engage in patterns of activity to Iden-
tify and expose covert agents. The lan-
guage originally proposed by Senator
CHAFEE and approved overwhelmingly
by the House would penalize such per-
sons who have "reason to believe" that
s t1 .-.
d.
U Q Intel
-
ir act
oul
arm
how our Nation is perceived abroad.
After all, our country seeks peace.
As President Reagan noted last year in
his worldwide address on nuclear
disarmament, the United States Is not
an aggressor. Immediately following
World War II, we alone possessed the
atom bomb, and yet we sought world
stability, not world domination.
Our people are charitable. In count-
less disasters around the world, the
American people and their Govern-
ment have come to the aid of the af-
flicted.
So, Mr. President, it is not surprising
that, so often, we cannot comprehend
the hostility our Nation encounters
abroad. Our embassies are bombed,
our officials kidnapped, and our poli-
cies attacked.
In this increasingly. tense Interna-
tional atmosphere, thousands of our
citizens are courageously serving their
country in the intelligence gathering
operations so important to our nation-
al security. These Government em-
ployees were aware of the personal
dangers confronting them when they
elected to engage in intelligence activi-
ties. But they now find themselves
threatened not only from the front,
but from behind as well; threatened by
their fellow citizens.
In 1975 American Philip ' Agee's
Counterspy magazine identified Rich-
ard S. Welch as CIA station chief in
Athens, Greece. Richard Welch was
murdered 1 month after the Informa-
tion was disclosed in the Athens Daily
News.
In 1980 another American citizen,
Louis Wolf, revealed the navies of 15
alleged CIA agents in Jamaica. Within
a week assassination attempts were
made on 2 of the 15.
Mr. President, we are now approach-
ing the seventh anniversary of the
death of Richard Welch, and still
there are no laws to prohibit the type
of despicable' act that led to his
murder. Those citizens who would de-
stroy our intelligence-gathering capa-
bilities are still trotting around the
globe "naming names" and endanger-
ing the lives of conscientious Ameri-
cans.
I have cosponsored S. 391, the Intel-
ligence Identities Protection Act, so
that we can at last bring an end to this
ligence activities.
The Senate Judiciary Committee,
however, decided narrowly to change
the "reason to believe" requirement to
one of "intent." The Government
would have to prove, not that an Indi-
vidual engaged in "naming names"
had reason to believe that his activi-
ties were harmful, but that he intend-
ed them to damage American intelli-
gence operations.
I favor the language originally pro-
posed by Senator CHAFES and support-
ed by both the Carter and Reagan ad-
ministrations. The Intent standard
would be difficult to prove and would
allow an individual to claim that his
anti-intelligence actions were intended
not to impair U.S. intelligence efforts,
but to expose certain activities that
were improper and worthy of public
discussion. In other words, whatever
the results, the intention was good.
Senator CnAFEE's "reason to believe"
standard would deal more effectively
with those who threaten our national
security, while preserving constitution-
al rights. To convict, the Government
would have to prove not only that an
individual had reason to believe that
his activities imperiled foreign intelli-
gence operations, but that beyond a
reasonable doubt: First, there was an
intentional disclosure of information
which identified a covert agent;
Second, the disclosure was made to
someone not authorized to receive
classified information; Third. the
person who made the disclosure knew
that the information disclosed identi-
fied a covert agent: Fourth. the person
who made the disclosure was aware
that the United States was taking af-
firmative measures to conceal the
covert agent's classified Intelligence
affiliation; and Fifth. the disclosure
was made in the course of a pattern of
activities intended to identify and
expose covert agents.
This language will enable the Gov-
ernment to convict the guilty. while
continuing to allow legal scrutiny of
government activity. A reporter who.
in the course of an investigation, re-
vealed an agent's identity would not be
guilty under the act, because he would
not meet Its "pattern of activities" re-
quirement.
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CONGRESSIONAL RECORD - SENATE - S 1263
Mr. President, I commend the Sena-
tor from Rhode Island for introducing
this legislation and for continuing to
press for the best possible language.
Like him, I recognize that if we are to
deter effectively those who would de-
ROUTINE MORNING BUSINESS
Mr. BAKER. Mr. President, I ask
unanimous consent that there now be
a brief period for the transaction of
routine morning business, extending
not more than 10 minutes in length, in
which Senators may speak for not
more than 3 minutes each.
The PRESIDING OFFICER. With-
out objection, it is so ordered. .
APPOINTMENT BY THE VICE
PRESIDENT
The PRESIDING OFFICER. The
Chair, on behalf of the Vice President,
pursuant to Public Law 84-944, ap-
points the Senator from Washington
(Mr. GORTON) to the Senate Office
Building Commission.
S. 2148-TO PROTECT UNBORN
HUMAN BEINGS
Mr. HELMS. Mr. President, I intro-
duce today a bill whose purpose is to
protect unborn human beings from
the violence of abortion. Many of us in
this body, including a number elected
in 1980, have made a public commit-
ment to seek legal protection for the
unborn. The end of the 97th Congress
is but months away, and we have not
yet been able to act on this crucial
commitment.
With tens of thousands of unborn
babies being killed by abortions every
week, I suggest to my distinguished
colleagues in the Senate that the time
is now.
The bill I introduce today, Mr. Presi-
dent, can be divided into four basic
parts. Part I -section 1-contains find-
ings from treaties, international
bodies, American history, and Senate
Mr. President, in concluding my
comments on this bill I call my col-
leagues' attention to the January 11,
1982, edition of Newsweek magazine.
On the cover of that issue was a pic-
ture of an 8-week old unborn baby. I
challenge- any honest observer to
study that picture and the nature of
prenatal development, and then try to
refute the fact that the unborn, just
like those of us who have been born,
are living individual human beings.
Newsweek knows when human life
begins and, I submit, this Congress
knows. It is time for us to act and to
protect that precious gift which we all
share, that precious divine gift-indi-
vidual human life.
Mr. President, today marks the be-
ginning of March and both Houses of
the Congress are preparing for a pro-
longed debate over the Federal budget
and the levels of appropriation for the
various Federal departments and agen-
cies. Before we embark on,that, it is
necessary that we begin with the con-
sideration of this, issue in a timely
fashion that will permit consideration
of it also in the House of Representa-
tives. Therefore, I am introducing this
legislation today and objecting to its
intent that the Senate proceed to the
consideration of this bill at the earli-
est possible date. Two subcommittees
of the Judiciary Committee have held
extensive hearings on this subject. It
is a subject which has been extensive-
ly debated by the Senate and the time
for action is now.
Mr. President, I ask unanimous con-
sent that the full text of the bill be
printed in the RECORD.
There being no objection, the bill
was ordered to be printed in the
RECORD, as follows:
S. 2148
Be it enacted by the Senate and House of
Representatives of the United States of
America in Congress assembled, That title
42 of the United States Code shall be
amended at the end thereof by adding the
following new chapter.
"CHAPTER 101
"SECTION 1. The Congress finds that
(a) The American Convention on Human
Rights of the Organization of American
States In 1969 affirmed that every person
has the right to have his life protected by-
law from the moment of conception and
that no one shall be arbitrarily deprived of
life;
(b) The Declaration of Human Rights of
the United Nations in 1959 affirmed that
every child needs appropriate legal protec-
tion before as well as after birth;
(c) The Nuremburg International Military
Tribunal for the trial of war criminals de-
clared the promotion of abortion among mi-
nority populations, especially the denial of
the protection of the law to the unborn chil-
dren of Russian and Polish women, as a
crime against humanity;
(d) The Federal Constitutional Court of
the Federal Republic of Germany in 1975
ruled that the life which is developing itself
in the womb of the mother is an independ-
ent legal value which enjoys the protection
of the constitution and the state's duty to
protect human life before birth forbids not
only direct state attacks, but also requires
the state to protect this life from other per-
sons;
(e) The Declaration of Independence af-
firmed that all human beings we endowed
by their Creator with certain unalienable
rights among which is the right to life.
(f) As early as 1857 the American medical
profession affirmed the independent and
actual existence of the child before birth as
a living being and condemned the practice
of abortion at every period of gestation as
the destruction of human life:
(g) Before 1973, each of the several states
had enacted laws to restrict the perform-
ance of abortion:
(h) Agencies of the United States continue
to protect human life before birth from
workingplace hazards, the effects of danger-
ous pharmaceuticals, and other hazardous
substances;
(i) It is a fundamental principle of Ameri-
can law to recognize and affirm the intrinsic
value of all human life; and .
Cl) Scientific evidence demonststes the life
of each human being begins at conception.
SEc. 2. No agency of the United States
shall perform abortions, except when the
life of the mother would be endangered if
the child were carried to term.
SEa 3. No funds appropriated by Congress
shall be used directly or indirectly to per-
form abortions, to reimburse or pay for
abortions. or to refer for abortions. except
when the life of the mother would be en-
dangered if the child were carried to term.
SEC. 4. No funds appropriated by Congress
shall be used to give training in the tech-
niques. for performing abortions, to finance
research related to abortion, or to finance
experimentation on aborted children.
SEC. 5. The United States shall not enter
into any contract for insurance that pro-
vides, directly or indirectly. for payment or
reimbursement for abortions other than
when the life of the mother would be en-
dangered if the child were carried to term.
SEC. 6. No institution that receives federal
financial assistance shall discriminate
against any employee, applicant for employ-
ment, student, or applicant for admission as
a student, on the basis of that person's op-
position to abortion or refusal to counsel or
assist in the performance of abortions.
SEC. 7. Upon the basis of the findings
herein, and in the exercise of. the powers of
Congress. including its power under section
5 of the Fourteenth Amendment to the
Constitution of the United States, the Con-
gress hereby recognizes that for the purpose
of enforcing the obligation of the States
under the Fourteenth Amendment not to
deprive persons of life without due process
of law, each human life exists from concep-
tion, without regard to raoa sex, age,
health, defect, or condition of dependency,
and for this purpose "person" includes all
human beings.
SEC. 8. Congress further recognizes that
each State has a compelling interest, inde-
pendent of the status of unborn children
under the Fourteenth Amendment, in pro-
tecting the lives of those within the State's
jurisdiction whom the State rationally re-
gards as human beings.
Sec. 9. Any party may appeal to the Su-
preme Court of the United States from an
interlocutory or final judgment, decree, or
order of any court of the United States re-
garding the enforcement of this Act, or of
any State law or municipal ordinance based
on this Act. or which adjudicates the consti-
tutionality of this Act. or of any such law or
ordinance. Any party to such case shall
have a right to direct appeal to the Supreme
Court of the United States on the same
terms as govern appeals pursuant to 28
hearings concerning the unborn and
the right to life.
Part II-sections 2 through 6-gets
the Federal Government totally out of
the abortion business. Instead of tying
up Congress every year during the ap-
propriations process over the Hyde
amendment, part II would make Hyde
permanent law. Among other things, it
also contains a freedom-of-conscience
clause to protect medical personnel
from discrimination because of their
prolife convictions.
Part III-sections 7 through 9-ap-
plies the bill's findings to constitution-
al protections over which Congress has
-enforcement powers. This part also
provides for certain expedited ' Su-
preme Court review. Part IV-section
10-is a severability clause which
should assure maximum support
within Congress from those approach-
ing the abortion subject with different
legal concerns.
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030006-7