INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200030007-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 19
• Document Creation Date: December 21, 2016
• Document Release Date: December 1, 2008
• Sequence Number: 7
• Publication Date: February 25, 1982
• Content Type: OPEN SOURCE

S 1166
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
CONGRESSIONAL RECORD 'SENATE Febrcidry-25,1982
"TITLE VI-PROTECTION Or CERTAIN
NATIONAL-S&CURITY INFORMATION
Sec. 601. Protection of identities of certain United
States undercover intelligence officers,
agents. Informants, and sources.
Sec. 602. Defenses and exceptions.
Sec. 603. Procedures for establishing cover for Intel-
ligence officers and employees.
Sec. 604. Extralerritorial Jurisdiction.
Sec. 605. Providing Information to Congress.
Sec. 606. Definitions.".
Mr. GOLDWATER. 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. DENTON. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
WARNER). Without objection, it is so
ordered.
Mr. DENTON. Mr. President, I rise
In support of S. 391. On February 3,
1981, our distinguished colleague Sen-
ator JorN H. CxArns of Rhode Island
introduced the Intelligence Identities
Protection Act of 1981. This bill,
which currently has 46 cosponsors.
was reported from the Committee on
the Judiciary on October 6,1981.
S. 391 is a bill to amend the National
Security Act of 1947, to prohibit the
unauthorized disclosure of informa-
tion identifying certain U.S. intelli-
gence officers, agent% informants, 'and
sources, and to direct the President to
establish procedures to protect the se-
crecy of these intelligence relation-
ships.
Events transpiring in the world have
been increasingly demonstrative of the
need for maintaining a strong and ef-
fective intelligence apparatus. It fol-.
lows, therefore, that unauthorized dis-
closures of information identifying In-
dividuals engaged in, or assisting in,
our country's foreign intelligence ac-
tivities, undermine the intelligence
community's human source collection
capabilities as well as endanger the
lives of our intelligence officer in the
field.
The disclosure of. the identity of a
covert agent is an immoral, nationally,
and personally harmful act that
cannot be tolerated. Prohibition of
this activity as defined by the bill
would in no way inhibit an individual
from speaking out against Govern-
ment programs that are wasteful. It
would not impede the whistleblower
who seeks to enhance his Govern-
ment's ability to perform more effi-
ciently by bringing to the attention of
those in responsible positions deficien-
cies, such as fraud or waste, in the
agency in which the whistleblower
serves. The reprehensible activities
which this bill is designed to crimina-
lize have repeatedly exposed honor-
able public servants to personal peril
and vastly reduced their effectiveness
in pursuing their endeavors with sig-
nificant detriment to national secu-
rity. The insensitivity and moral de-
generacy on the part of those who
seek to undermine the effectiveness of
our intelligence capability are so inimi-
cal to our American democratic system
that it seems evident that what we are
about to do today should not be neces-
sary. This bill is indeed overdue for
passage.
While in a free society we must wel-
come public debate concerning the
role of the intelligence community as
well as that of other components of
our Government, the irresponsible and
indiscriminate disclosure of names and
cover identities of covert agents serves
no salutory purpose whatsoever. As
elected public officials, we have the
duty, consistent with our oaths of
office, to uphold the Constitution and
to support the men and women of the
U.S. intelligence service who perform
important duties on behalf of their
country, often at great personal risk
and sacrifice.
Extensive hearings before the House
and -Senate Intelligence Committees
and, the Subcommittee on Security
and Terrorism have documented the
pernicious effects which have resulted
from these disclosures or identities. An
underlying, basic issue is our ability to
continue to recruit and retain human
sources of intelligence whose informa-
tion is crucial to our Nation's survival
in an increasingly dangerous world.
It seems mind-boggling to me that
no existing law clearly and specifically
makes the unauthorized disclosure of
clandestine Intelligence agents' Identi-
ties a criminal offense. Therefore, as
matters now stand, the Impunity with
which unauthorized disclosures of In-
telligence identities can be made im-
plies a governmental position of neu-
trality in the matter. It suggests that
the U.S. intelligence officers are "fair
game" for those members of their own
society who take issue with the exist-
ence of a CIA or find other perverse
motives for making these unauthor-
ized disclosures.
Through the lengthy hearings that
have occurred over the past several
sessions of the Congress, we have
heard a substantial amount of testimo-
ny regarding the possible constitution-
al problems engendered by provisions
of this bill. As we all appreciate, in
this. area of Identities protection, we
have steered a course carefully
charted between two enormous inter-
ests: On the one side, we have the pro-
tection of a constitutional right of free
speech and, on the other side, the vital
need to protect the effectiveness of
U.S. intelligence gathering around the
world. During all of the hearings and
debates, great care has been taken to
construct a provision that would reach
the activity to be proscribed, that is,
"naming names," in such a way as to
do no violence to the first amendment
to the Constitution. I believe we, and
those who labored previously on this
measure, have been successful.
On June 29, 1981, the Supreme
Court of the United States in a 7-to-2
decision sustained the authority of the
President, acting through the Secre-
tary of State, to revoke a passport of a
U.S. citizen on the grounds that the
holder of the passport Is engaged in
activities abroad that are causing seri-
ous damage to the national security of
foreign policy of the United States.
This decision, Haig, Secretary of
State against Agee, has a major rela.
tionship to this bill in that the Court's
review of this matter established the
serious nature of the activity of
naming names to identify and expose
covert agents. Furthermore, the
Court's decision suggests that the
Issues involved here are, from a consti-
tutional standpoint. relatively clear
cut. This- decision established that S.
391 will withstand a first amendment
challenge in the courts. Even Justice
Brennan stated in his dissent that
It. may be that respondent's first amend-
ment right to speak Is outweighted by the
Government's interest In national security.
Mr. President, I view this as a bi-
partisan issue. I believe immediate
action must be taken to curtail these
activities which have been so deter-
mental to our intelligence-gathering
capabilities and, ultimately, to our na-
tional security. If any legitimate criti-
cism is to be leveled at this bill it
would, in my view, relate to insuffi-
cient criminal sanctions for what I
consider to be - a most egregious of-
fense that borders on treason.
Frankly, I am grateful' for the spirit
of cooperation that has enabled this
important bill to be' brought to the
floor but I am concerned that it has
taken so long to do so. I look forward
to the prompt consideration of this
measure on the floor today and its
early enactment in a form that most
adequately addresses this serious gap
in the Federal Criminal Code.
Finally, I want to commend by col-
league from Rhode Island, Senator
CHAFES, for his initiative and unceas-
ing efforts on this vital measure. I also
want to thank staff members Rob
Simmons, Will Lucius, and Sam Fran-
cis for their valuable contributions on
S. 391. These gentlemen, along with
many others, have put In many long
hours on this legislation and I feel
they deserve our strong. commenda-
tion.
There has been a strong bipartisan
tone in the discussions on this matter
in committee. In the spirit of that bi-
partisanship I have worked with the
minority floor manager of this bill and
have come to respect him greatly.
I am now pleased to yield to the Sen-
ator from Delaware.
The PRESIDING OFFICER. The
Senator from Delaware.
Mr. BIDEN. I thank the Senator.
I, too, would like to begin by compli-
menting the Senator from Rhode
Island, Senator CHAFES, who serves
with me on the Intelligence Commit-
tee, has had for some time a preemi-
nent interest In doing-something
about protecting, the safety of agents
of the U.S. Government. These agents.
acting on behalf of our Government,
and in the Interests of the people of
the United States of America, are sub-
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
February 25, 1982 CONGRESSIONAL RECORD - SENATE
ject to the outrageous public exposure
by individuals, some of whom are
former members of those agencies,
who have deliberately put them at
risk.
It was beyond any question In my
mind that those people who are delib-
erately engaging in this practice are
fully aware of the fact that such expo-
sure can and has resulted in the loss of
life and the breach of security and,
consequently, affected the interests of
the United States of America.
I, too, believe as does the Senator
from Rhode Island and the Senator
from Alabama, indeed I think we are
all in agreement that it is high time
we finally got this thing to the floor.
It Is high time we get a vote.
We had a number of debates. I see
the distinguished Senator from Arizo-
na, chairman of the Committee on In-
telligence, here. He is fully aware of
the subject,. fully cognizant of it.. He,
in his capacity on that committee, has
heard all the arguments and debates
on this. We have had it through his
committee and the Judiciary Commit-
tee. In the 10 years I have been in the
U.S. Senate, there have not been many
issues that have been as thoroughly,
fully debated as this one. So I think it
is high time we got on with the issue
of deciding what are the only really
one or two controversial aspects of the
bill. We are 99 or 90 percent in agree-
ment as to what form this protection
of our agents should take.
I should like to suggest, and I think
It is appropriate-it is common prac-
tice that we should move, probably,
the committee amendments. This is
the Judiciary Committee the Senator
from Alabama and I are representing
today. I ask unanimous consent that
we consider and agree to en bloc the
amendments as adopted in the com-
mittee on this bill.
The PRESIDING OFFICER. Is
there objection?
Mr. DENTON. Mr. President. I re-
serve the right to object.
Mr. BIDEN. Mr. President, I amend
that to say and that the bill as thus
amended be considered as original
text.
The PRESIDING OFFICER. Is
there objection to the unanimous-con-
sent request of the Senator from Dela-
ware as amended?
Is it the request of the Senator to
have the amendments be agreed to en
bloc?
Mr. BIDEN. That is correct.
The PRESIDING OFFICER. The
question is on agreeing to the commit-
tee amendments en bloc.
The committee amendments were
agreed to en bloc.
Mr. BIDEN. I thank the Chair for
the help.
Mr. President, let me, if I may, at
least from my perspective, outline in
just a few minutes the essential ele-
ments of the bill as I see it so our col-
leagues, as they go forward with their
efforts and their homework tonight
and tomorrow and on the weekend,
reading the RECORD of what the
debate Is about, will have a starting
point at least.
The whole purpose of this bill is to
penalize the disclosure of names by
three classes of persons, but It really is
only the third class of person we have
a debate about as to how we should do
it. The first is in section 601 (a) and
(b) and they deal with present and
former Government employees who
have had access to the names of
agents or who, because they had
access to classified information, are
able to determine the names of the
agents. In subsection (d), that deals
with individuals outside the Govern-
ment who disclose the names of agents
even though they never had access to
classified information.
There are two formulations of sec-
tion (c) that really are the cause of
some debate here, in the-Senate, . and
that we shall be debating at the begin-
ning of next week, the so-called
reason-to-believe version, which reads
as follows:
. Whoever. in the course of a pattern of ac-
tivities intended to Identify and expose
covert agents and with reason to believe
that such activities would impair or impede
the foreign Intelligence activities of the
United States, etc.
We are talking about the third class
of person now, not the person who has
had access to classified information.
These are persons outside the Govern-
ment who disclose the names, the
standard we want to judge them by.
The first standard we are going. to
argue about is the one I just read.
Another version is the version adopt-
ed by the Judiciary Committee. It is
the intent version. It is a response to
some of the arguments raised by some
of the constitutional scholars and
press groups who contend that the
reason to believe version is unconstitu-
tional and/or unnecessarily broad.
The intent version reads as follows:
Whoever, in the course of an effort to
identify and expose covert agents with the
intent to impair or impede the foreign intel-
ligence activities of the U.S. by the fact of
such identification and exposure,
And so on.
That is what we are going to be ar-
guing about. That is what it is all
about. That is what it comes down to-
whether or not we have the operative
language that would make it a crime
and subject those persons to a crimi-
nal penalty who reveal the names of
agents, who have not had access to the
names of these agents through classi-
fied information in the past, fall out-
side of Government but, nonetheless,
by whatever means, gain access to it: a
reporter who finds out that John Doe
Is a CIA agent and he publishes John
Doe's name; or somebody who deliber-
ately goes on a witch hunt to find out
the names of those people, gathers
them up and publishes them for pur-
poses of exposure. They are the folks
we are after.
So what we are going to be arguing
about-not so much today because we
81167
are not going to spend a lot more time
here today-is how do we get to those
folks, how do we treat them, and by
what standard of law do we apply to
them?
On the fairness position argued by
the Senator from Rhode Island, the
Senator from Alabama and others, a
case can be made that the civil lib-
erties of Americans are better protect.
ed by the reason to believe standard.
So our colleagues are going to hear a
lot of confusing, well-intended jargon
on both sides. We are going to have
the Senator from Rhode Island argu-
ing, if we really want to protect civil
liberties, we should adopt reason to be-
lieve. We are going to have the Sena-
tor from Delaware say, no, it is better
to have an intent standard.
I do not have any doubt in my mind
at the beginning of this debate that
the Senator from Rhode Island means
what he says, that he truly believes
the best way not only to protect our
national interest but also not to vio-
late the civil liberties of our American
citizens under the first amendment is
to adopt the reason to believe. I
happen to disagree with that. So we
are about to get into a debate that I
believe is borne out by a genuine belief
on both our sides that we can get the
job done with our language and pro-
tect civil liberties.
Mr. President, I think it is useful for
us to really understand just how
narrow the difference is, because it
gets kind of complicated. We are going
to get Into fairly esoteric arguments
and it Is a little bit hard to follow. I
suspect that we shall both or all of us
on the floor may very well-at various
times in the debate, our decibel rates
may rise and we may also be making
appeals as to the same basic set of ar-
guments and our colleagues are going
to argue, how can they both be saying
the same thing?
Mr. President, there is much more to
talk about in this bill. There is a sec-
tion on whether it is constitutional to
penalize nonemployees. We are going
to be talking about what happens
without the intent language, what
happens with the intent language. We
are going to be arguing about what
the Agency thinks will get the job
done, we are going to be arguing about
how badly all these things are needed.
Rather than get into those things now
and rather than make a more lengthy
floor statement, I want to reiterate
where the bone of contention Is going
to come.
The argument we are going to be fo-,
cusing on in this bill is whether or not
the language which says "with . the
intent to impair or impede" should be
stricken and we should have language
that says "with reason to believe." It is
going to come down to that. That Is
the big issue. I am anxious to get it
settled. I am anxious to have a resolu-
tion, because we need a bill. These
folks need protection and I am confi-
dent that whatever version we come
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
S 1168
CONGRESSIONAL RECORD - SENATE Februmy 25, 1982
out with we can get passed in the U.S.
Congress, we can get the President to
'sign, and we can ,get on with the busi-
ness of putting it in shape. So without
getting into the details of my argu-
ment as to why I think we should stick
with the committee version, let me
yield to my colleagues who also have
opening statements and, maybe, a dif-
ferent perspective on this question.
Mr. DENTON. Mr. President, first I
would pose a rhetorical question to
the Senator from Delaware. I wonder
why the Senator is so firm on the
intent standard regarding the applica-
tion of legislation to protect the lives
of our intelligence agents and yet does
not come down on that same standard
on the issue of voting rights.
Mr. BIDEN. I said it was going to be
an interesting debate. I will be happy,
since it was a rhetorical question, to
speak to that question. in. some detail
as we get down the line here.
Mr. DENTON. I yield to the Senator
from Arizona.
Mr. GOLDWATER. Mr. President, I
thank my friend. The Intelligence
Identities Protection Act (S. 391)
before us today will help protect our
intelligence personnel on difficult and
dangerous assignments In foreign
countries. It also will help stop our In-
telligence sources from turning away
from us because they are afraid we
cannot be trusted to protect them. It
might help us get information that is
vital to the security of our country.
Last November; the "Covert Action
Information Bulletin" published the
names of 69 alleged CIA officers serv-
ing in 45 countries abroad in a section
titled "Naming Names." In addition,
the "Bulletin" reprinted the names of
272 alleged covert agents which had
been identified in the 12 previous edi-
tions of the magazine.
One week later, the- pro-Sandinist
paper, Nuevo Diario, identified the
names of 13 alleged CIA officers as-
signed to the U.S. Embassy in Mana-
gua, Nicaragua. Several of those
named have already received death
threats, been roughed up in their
homes at night, and the families of a
number of these American officials
have been evacuated for their personal
safety. U.S. officials in Managua have
linked the publication of these names
with the visit of Philip Agee to Nicara-
gua last month.
There has already been one murder.
Richard Welch was murdered in
Greece after being named. In 1980,
two attempts were made in Jamaica to
assassinate American personnel. They
were set up as targets for assassination
by other Americans through the unau-
thorized disclosure of names. There
are two ways this is being done. One is
the naming of names at press confer-
ences, and the other is listing names in
books and publications. These unau-
thorized disclosures have been exten-
sive and many have been made by
former CIA employees. The tragedy is
that we do not have any laws to stop
it.
It Is bad enough that our overseas
employees are exposed to violence, but
to allow someone here at home to do It
by putting ID tags on them so that
they may become targets makes no
sense at all.
So far, some 1,200 names have been
made public In magazines or newspa-
pers. Another 700 appeared in a book.
A bimonthly bulletin exposes CIA,
FBI, and military intelligence person-
nel and assignments. A worldwide net-
work called CIA watch is operated for
the purpose of destroying the CIA.
Every time I read about something
like this, It bothers me, I cannot help
but wonder why we let it continue and
why someone does not do something
about It. That seems to me as morally
wrong as anything I can think of and
something I can accept no longer.
We are in a rut on this subject, and I
am afraid it will become our grave if
we do not stop talking and do some-
thing. We must tell the world that we
will not tolerate such disclosures any
longer and show that we care for the
CIA and plan to do something about
It.
Thus, the immediate goal for this
Nation-and for this Congress-should
be the rebuilding and revitalization of
the intelligence community which will
benefit all our citizens.
We should have had this bill before
us sooner, but now that it is before us,
we must act promptly. This bill was re-
ported from the Senate Intelligence
Committee by a vote of 13 to 1 in 1980,
after 9 days of hearings and over 650
pages of testimony. It picked up 47 co-
sponsors in 1981. It passed the House
by a vote of 354 to 56 last year, and
has had the support of both the
Reagan and Carter administrations.
The purpose of this bill is to protect
the lives of American citizens working
abroad in the intelligence operations
of this country from other American
citizens who deliberately wish to set
them up for exposure to violence by
the unauthorized disclosure of names.
The bill also places a price on the ac-
tivities of those who use this means to
impair and impede duly authorized
American intelligence activities
around the world.
The biggest obstacle to this bill in
the past were claims that it would in-
terfere with free speech and freedom
of the press. That has been worked
out, and those claims are phony. The
Supreme Court would not hesitate to
say so if Congress were to go too far.
If someone wants to criticize foreign
policy, that is their business. If they
want to write about the lousy conduct
of some of our citizens, that is OK,
too. But they do not have to name
names, because that places the lives of
human beings in danger. That is not
OK. It Is not acceptable in the Ameri-
can society.
There have been at least six bills on
how to protect first amendment rights
while allowing for prmpeution of
those who abuse those rights. I hope
we have not become so helpless that
we cannot recognize a serious situation
and solve It just because we cannot
agree on words. I believe that first
amendment rights were considered
and that the bill will ptutect those
rights while allowing for prosecution
of those who name nacres solely for
the purpose of harming the Govern-
ment's foreign intelligence activities.
There is another amendment In the
Constitution that is 1mpatant, too.
That is the 14th amendment. which
guarantees the right of equal protec-
tion to all citizens. I believe this bill
will protect those rights and the first
amendment at the same time.
This bill will outlaw unauthorized
disclosure of names In three ways.
First, it covers those who have access
to classified Information which Identi-
fies names. Second, it applies to those
who have access to classified informa-
tion but not names, and who learn of
names because of that acorns. Third. it
hits those who make a business of
naming names In a deliberate and sys-
tematic way even though they claim
not to have access to clasafied infor-
matiom
Some have said that this bill will not
do much more than help patch the
image of the CIA. I believe that there
is a lot more at stake than that. It has
nothing to do with whether you like
the CIA or do not like the CIA. Saving
lives is what this bill will do. This is so
serious that if we do not pass this bill
the KOP people are the only ones who
will get a laugh out of IL Everyone
else will think we are crazy and start
looking at us as accessories to negli-
gent homicide. It would mean that we
would prefer to protect those who
would harm us instead of those who
work for us.
A high-ranking CIA offidal testified
before the Senate Intelligence Com-
mittee in these words:
Our intelligence sources and methods are
part of the national treasum Once dis-
closed, our sources can be dewed to us and
our methods thwarted by relatively simple
actions by foreign authorities The law cur-
rently lacks teeth in seeing to it that these
sources and methods are adequately pro-
tected from unauthorized disclosure.
Mr. President, those words certainly
make sense. There is no good reason
why our intelligence employees or
agents who operate under protective
cover on official Government business
should be placed in needless danger by
permitting their Identities to be re-
vealed deliberately.
Mr. President. I might comment
that we are the -only country in the
world that allows this to go on. The
penalty for doing this In any other
country would undoubtedly be death
or life imprisonment. But we allow it
this, but all of them have been bogged
down in discussions over how best to
arrange words. The problem has been
Circle, and I am fed up with it.
These disclosures of identities have
no redeeming social value and were
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
February 25, 1982 , CONGRESSIONAL RECORD -SENATE
clearly not intended to bi' within the
freedom of speech or of the press in-
corporated In the first amendment to
our Constitution.
Nearly all major foreign intelligence
services with which the United States
has liaison relationships have under-
taken reviews of their relations with
the Agency. Some immediate results
of continuing disclosure have included
reduction of contact, reluctance to
engage joint operations, and reduced
exchange of information.
That in itself is a very serious thing
to have happened to our country when
we cannot exchange classified intelli-
gence information. with other coun-
tries and slowly lose them as sources
because they are afraid for the lives of
their own people and they do not like
the possible disclosure of top secret In-
formation of their own.
There is an urgent need for effective
legislation both to discourage- these
unauthorized disclosures and to cri-
minalize them when they occur. The
credibility of our country in its rela-
tionships with foreign liaison services
and agent sources Is at stake. The per-
sonal safety and well-being of patriotic
Americans serving their country In the
far reaches of the globe are at stake.
The professional effectiveness and
morale of this country's intelligence
officers is at stake. In sum, the Na-
tion's national security is at stake.
U.S. intelligence officers overseas
must establish what are, in effect, con-
tratual relationships with foreign na-
tionals occupying key posts and who
are willing to provide information to
the U.S. Government. Since many of
our most valuable intelligence sources
live in societies were anything less
than total allegiance to the state could
subject an individual to loss of life or
liberty. they rightfully demand an ab-
solute assurance that the cooperative
relationship they are about to enter
into will remain private. You can
imagine the effect it must have on a
source who one day discovers that his
contact has been openly identified as a
CIA officer. The impact In this regard
Is twofold. First, there is a substantial
adverse impact on the CIA's ability to
collect Intelligence; second. some of
our foreign sources, who, notwith-
standing the disclosures, must remain
in place, may be subject to severe pun-
ishment or worse.
As matters now stand, the intention-
al exposure of covert intelligence per-
sonnel without punishment implies a
governmental position of neutrality in
the matter. It suggests that U.S. Intel-
ligence officers are fair game for those
members of their own society who
take issue with the existence of CIA or
find other motives for making these
unauthorized disclosures.
I have outlined several reasons why
legislation Is necessary to solve this
problem of unauthorized disclosures of
identity. I believe that timely action in
this regard is very Important to na-
tional security. It hinges not only on
the protection of our Intelligence offi-
cers and contacts but on the dimin-
ished quality of intelligence we can
expect to receive unless we take action
now.
It seems to me that we sometimes
forget that the Intelligence agencies
are on our side and sometimes need
our help. It makes no sense for us
always to be looking for faults.
This is an emergency situation that
needs legislation to deal with it now.
We cannot avoid this Issue just be-
cause we may get some bad press. We
must pass the Chafee-Jackson amend-
ment, and we must pass this bill. We
must have the courage to do what is
right. This bill Is good for our fellow
Americans who serve us on difficult
and dangerous missions abroad. And it
will do us a lot of good, too.
Mr. President, the most important
function of the legislative branch is to
legislate when it is needed. We need It
now. Let us go ahead with Senator
CnArl and Senator JAcKsoN's
amendment. .
I wish to take this opportunity to
thank the Senator from Rhode Island
for his constant courage in pushing
forward on this matter. It is long, long
overdue. and it will do more in ,my
humble opinion to once again create a
giant and effective force of Intelli-
gence In this country than. anything I
can think of, a force which was dimin-
ished. by the so-called Church commit-
tee which almost deprived us of intelli-
gence during the years It was In exist-
ence.
Mr. President, I yield the floor.
Mr. DENTON. Mr. President, I was
delinquent in not yielding to my ad-
mired friend from Arizona more elabo-
rately.
He ran for the Presidency in 1964,
and the respect held for him in the
hearts of the people of my State was
such that 'he not only won that State
in that election but he got the first
five Republican Congressmen from Al-
abama since Reconstruction elected on
his coattails.
I have had personal opportunity to
admire him for decades, and then to
serve with him on the Armed Services
Committee and to be Invited by him to
participate in hearings on the Select
Committee on Intelligence, and I
cannot think of a man in the United
States to whom we owe more for pro-
tecting this Nation's security Interests.
I strongly recommend that we pay
close attention to what he just had to
offer us.
I will yield to the distinguished Sen-
ator from Rhode Island who has been
a central figure in bringing this meas-
ure to the floor.
Mr. CHAFES. Mr. President, I thank
the distinguished Senator from Ala-
bama for that kind introduction and I
thank the senior Senator from Arizo-
na for his very kind comments. It is a
pleasure to work with Chairman Gonn-
WATER on the Intelligence Committee
where we have been together now for
31169
some 6 years. Also, by happy coinci.
dence, the floor leader for the minor-
ity on this issue. representing the Ju-
diciary Committee. also serves on the
Intelligence Committee. So he Is very,
very familiar with the Issues that we
are struggling with here today. He
lends great insight to the problems
that we face.
Mr. President. briefly let me review
the matter.
We have members who serve on the
Senate Intelligence Committee who
travel around the world and spend a
good deal of time with American Intel-
ligence agents both at home and
abroad. They are fully aware that the
most nagging problem facing our
agents-one which elicits the greatest
concern from those who lead the In-
telligence Agency-..is the fact that
names of alleged agents are published
freely by American citizens. As the dis-
tinguished floor leader for the minor-
ity on this issue poked out, we have
tried In this legislation, whether It is
the committee's bill or whether It is In
the amendment that Senator JACKSON
and I have proposed, to prohibit the
publication of these agent's names
from three sources of publication, or
potential sources of publication,
The first category of person naming
names is the person who had author-
ized access to Information that identi-
fies a covert agent. This person may
work for an Intelligence agency. The
second category deals with those who
had access to some secret Information
but they themselves did not have spe-
cific access to the name of a covert
agent.
Finally, you come to the most diffi-
cult group of persons naming names.
This category Includes those who did
not serve or are not currently serving
in an intelligence agency, and who do
not have access to classified informa-
tion. Nonetheless they proceed to
identify names of alleged agents
through determined efforts on their
part to ferret out the names of what
might be agents, and then they pro-
ceed to publish these names,
That is the cause of the problem,
and that presents the difficulty we
have here this afternoon as we debate
this legislation. Can you punish some-
one who himself has never had access
to classified information, who never
perhaps, served in an intelligence
agency, but who, using unclassified
documents, a whole series of them,
carefully searches through them and
ferrets out and produces names al-
leged to be intelligence agents, and
publishes them?
The Senate Judiciary Committee
came forward with language to take
care of this problem with what I will
refer to as the committee language.
This language states
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 ...
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
S 1170
CONGRESSIONAL RECORD - SENATE
Somebody goes out, he spends an In-
credible amount of time., he . goes
through a whole series of unclassified
documents, and then with the Intent
to expose the name of an agent in
order to impair the activities of the
United States, goes ahead and pub-
lishes these names.
On the other hand, in the amend-
ment that I will call up, the.language
is somewhat different. The language
in my amendment says, "Whoever, 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." As the distinguished Senator
from Delaware mentioned, it seems we
might be arguing and nitpicking over
words here. One talks about the
"intent" to impair the intelligence ac-
tivities of the United States, and the
other talks about "reason to believe"
that the disclosure of these names
would Impair the Intelligence activities
of the United States. -
First, let me say this: We have been
working on this entire subject now for
over 2 years. I will say, how delighted I
am that we have this legislation on
the floor now. In one way or another
it seems apparent that legislation is
going to pass dealing with this prob.
lem. That in itself is a mammoth step
forward. Indeed, in the Judiciary Com-
mittee, the committee language passed
unanimously, and the amendment
that I presented barely failed by a
vote of 8 to 9. But if it had passed I
suspect that that language would have
also been approved by the committee.
In other words, one way or another
there Is unanimity, I believe, in this
body that we will pass legislation to
curb the disclosure of the names of al-
leged agents working for our intelli-
gence agencies.
As I mentioned earlier, we have
found this to be the principal sore spot
with those who serve this country
abroad. How is it possible, they say,
that fellow Americans can disclose
names of alleged agents who are serv-
ing at their personal peril around dif-
ferent trouble spots of the world? Why
do we permit this to happen?
When this legislation is passed, and
the House has passed language similar
to that In my amendment, and if my
amendment prevails, which I hope It
will, then we will not have to go to
conference on this subsection. If my
amendment fails, then we will go to
conference, but one way or another
language is going to come out. An act
is going to be passed by this body, that
will wrestle in a determined manner
with this problem.
Let me briefly give a bit of history, If
I might, but before proceeding to that,
let me call up my amendment.
(By request of Mr. DENTQN the fol-
lowing statement was ordered to be
printed in the RECORD:)
e Mr. THURMOND. Mr. President,
this bill represents the culmination of
a great deal of work during at least
two Congresses. Legislation of this
nature has been examined in one form
or another by both the Intelligence
Committee and the Judiciary Commit-
tee since early 1980. Hearings have
been held, there has been lengthy
debate, and each and every section has
been closely and carefully scrutinized.
I do not believe that there Is much dis-
agreement in the Senate as to whether
or not legislation ? of this type Is
needed, and I think that It is time for
the Senate to say with a loud and
clear voice that we do not condone the
type of action prohibited by this bill.
This measure aims at protecting the
identities of those Individuals whose
anonymity serves the interest of the
country. Moreover, this legislation
would insure an appropriate balance
between individual rights and the ab-
solute necessity for secrecy in intelli-
gence collection vital to the security of
the Nation:
The prohibitions contained in S. 391
are directed at punishing those indi-
viduals who intentionally and without
authorization . disclose Information
identifying intelligence officers and
agents of the United States. This bill
is not intended to apply to members of
the press or others engaged in legiti.
mate activities protected by the first
amendment. It is intended, however,
to stop those people who are In the
business of "naming names" of our
covert agents.
We must keep In mind the special
needs of the brave and unsung em-
ployees of the Intelligence agencies of
this country. We must remember, too,
that uninformed pblicymakers cannot
properly serve the people, and without
the information these employees pro-
vide, the American people will suffers
? Mr. GRASSLEY. Mr. President, ear-
lier this year, as a member of the
Senate Judiciary Committee, I voted
In favor of S. 391, as originally intro-
duced. I intend to reaffirm my strong
support for the bill here today and I
hope that we can restore the bill to its
original form.
In this bill, as in other bills that the
Judiciary Committee has studied in
this and the prior session, we have
been asked to balance first amend-
ment rights against the Government's
ability to "suppress" information nec-
essary to protect the men and women
of the intelligence community, whose
secret work is vital to the Nation's se-
curity.
Some have opposed this legislation.
The opposition states that the bill un-
dermines first amendment rights. But.
overwhelmingly, it has been viewed
and it should be viewed as an attempt
to bolster or protect our covert intelli-
gence and counterintelligence agents.
I have been convinced beyond a rea-
sonable doubt that this legislation is
needed to prohibit the systematic ex-
posure of agents' Identities under cir-
cumstances that pose a clear threat to
intelligence activities vital to the Na-
tion's defense. I am also convinced
that this bill goes to great lengths to
distinguish between the ghoulish busi-
Febrfua iy 25, 1982
ness of furnishing the enemies of -the
United States with information that
invites and facilitates violence against
its agents and mere reporting. I am
satisfied with the terms of this bill
and the protection that it affords. I
encourage all of my colleagues to sup-
port this bill and Its goals.s
AMENDM IT NO. 1281
(Purpose: To describe driminal liability for
the disclosure of certain information iden-
tifying an Individual as a covert agent)
Mr. CHAFEE. Mr, President, I call
up my amendment numbered 1256.
The PRESIDING OFFICER. The
clerk will report the amendment.
The assistant legislative clerk read
as follows:
The Senator from Rhode Island (Mr.
CHAFES) for himself, Mr. JAcasoN, Mr.
ABDNOR, Mr. CocHRAN, Mr. D'AMATo,
Mr. DEN=N, Mr. DomzN=L Mr. EAsl,
Mr. GARN, Mr. GRASS=T, Mr. GoLD-
WATER, Mr. HAYASAWA, - Mr. HATCH,
Mrs. HAwsXNS, Mr. HEL1r3 Mr. HuM-
rznr, Mr. LAxALT, Mr. LUGAR, Mr.
MATTINGLY, Mr. NICSLES, Mr. SCHMrTT,
Mr. SIMPSON, Mr. SY!mts, Mr. THUR-
aroND, Mr. TOWER, Mr. WALLop, and
Mr. WARNER) proposes an amendment
numbered 1256:
On page 3, beginning with line 13, strike
out all through "agent," on line 19 and
insert in lieu thereof the following:
"(c) 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
the foreign Intelligence activities of the
United States, discloses any information
that identifies an individual as a covert
agent to any Individual not authorized to re-
ceive classified information.".
Mr. CHAFES. Mr. President, the
guts of this debate here this afternoon
and Monday and Tuesday morning
presumably will revolve around the
amendment I have submitted.
As I previously indicated. the rest of
the language of this legislation ap-
pears to be noncontroversial and that
is a tremendous step forward because
such certainly was not true some 2
years ago when we first presented this
language.
On this amendment in which I am
joined as a principal cosponsor by Sen-
ator JACKSON of Washington, and by
some 25 other Senators, I now review a
bit of history, if I might, on the back-
ground of the amendment.
The language which I am presenting
along with Senator JACaso1r is the lan-
guage which was originally proposed
and referred to the Senate Committee
on the Judiciary. It emerged from the
Subcommittee on Security and Terror.
Ism headed by the distinguished Sena-
tor from Alabama, and then was con-
sidered in the full committee. There
this language was rejected by a very
close vote of 9 to 8.
. In my judgment, the committee lan-
guage, which was adopted-and let me
call It the committee amendment-
substantially weakens the language
which was originally in the bill which
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
February 23, 1982 CONGRESSIONAL RECORD SENATE
was adopted by the House, and which
is in my amendment.
Therefore, I am presenting this
amendment, which passed in the
House of Representatives last fall by a
vote of 354 to 56. It is the language
which the Senate Intelligence Com-
mittee originally adopted in 1980 by a
vote of 13 to 1.
Now, President Reagan has stated
that our language-and by our lan-
guage I mean the Chafee-Jackson lan-
guage-is "far more likely to result in
an effective law that could lead to suc-
cessful prosecution," than the commit-
tee language.
Mr. President, the key difference be-
tween the committee and the Chafee.
Jackson language relates to the stand-
ard of proof that would be used in a
prosecution. The committee language
requires that there be an effort to
Identify and expose agents with the
intent to impair or Impede the intelli-
gence activities of the United States.
Our language requires that there be
'a pattern of activities intended to
identify and expose agents, with
reason to believe that such activities
would impair or Impede the foreign in-
telligence activities of the United
States. In other words, the difference
is the committee language depends on
the subjective intent of the person en-
gaged in naming names whereas our
language uses an objective standard of
proof.
(Mr. HAYAKAWA assumed the
chair.)
Mr. CHAFE. I will explain this fur-
ther as we go along. But,, at this point,
let me say .that it places the intent of
the defendant- under our language
where it should be in a criminal act-
on the Intention to perform the harm-
ful act. The committee language focus-
es on the subjective intent of the de-
fendant to do harm.
The reasons for these differences
rises out of the debate we had on this
issue last year. I would like to summa-
rize some of'the background of the
debate.
In January of 1980, over 2 years ago,
Senator JACxsoN and I joined Senator
MoywixAN in introducing the Intelli-
gence Reform Act of 1980 (S. 2216).
That bill contained a section designed
to protect agent identities which de-
pended on a subjective standard of
intent-in other words, when we origi-
nally introduced this bill, we also had
this subjective standard of intent.
What did the person intend to do
inside their breast?
Now, when we had the hearings-
before the Senate Intelligence Com-
mittee In June of 1980, a number of
witnesses expressed concern with this
language. For example, Mr. Floyd
Abrams testified that he did not sup-
port the intent standard for the fol-
lowing reasons:
I don't think that their Intent-
Meaning the accused-
ought to bear on your decision. They-
The accused-
31171
Do bad things maybe for bad reasons but he is out to impair the intelligence ac-
the question I would urge on you at least is tivities of the country?
whatever the intent is; whether you ought The problem is why we do not use
to start down the road of deciding what can that standard Instead, we look at the
be said or written by people who don't
happen to work for the Government, pattern of activities of a person: If
whether you like or approve of their intent time after time after time he-exposes
or not. I don't think that factor ought to be the names of agents and he has a
that they don't like the CIA. They may not reason to believe that it impairs Intel-
have a constitutional right to publish cer-
tain information but they have absolute
right to like or dislike what they choose.
And Mr. Morton Helperin, of the
ACLU, said about the same thing. He
said:
I think that a citizen has the right to
impair or impede the functions of a govern-
ment agency whether It is the Federal
Trade Commission or the CIA The fact
that your intent is to impair or impede
those agencies does not make your activity a
crime If it Is otherwise legal.
Now, because of these concerns
about intent, the staffs of the Senate
Intelligence Committee and the, Jus-
tice Department began working on an
alternative standard of proof which
would remove the problems of the spe-
cific intent standard. Eventually, we
came up with language which utilized
what they call an objective standard
of Intent. The Carter administration's
Justice Department endorsed this lan-
guage.
In a letter to Chairman Bayh, who
was then the chairman of the Senate
Intelligence Committee, the Deputy
Attorney General of the United
States, Mr. Renfrew, wrote as follows
about this objective standard:
This 'formulation substantially alleviates
the Constitutional and practical concerns
expressed by the Justice Department with
regard to earlier versions of this bill that in-
cluded a requirement that prohibited disclo-
sures be made. with a specific "Intent to
impair. or impede". U.S. intelligence activi-
ties.
Because of the significance of this matter,
however, It has been our view from the be-
ginning that such legislation as is enacted
must be fair, effective and enforceable. our
position has been and remains that the ab-
sence of an intent element in this legislation
will accomplish this goal.
'Let me just briefly summarize what
we are talking about here. Under the
committee language, it is said that you
have to have an intent to impair the
intelligence activities of . the United
States before you are guilty. We say
that is not the right standard. Some-
body might be impairing intelligence
activities but not with the intent to do
so. Somebody might be disclosing
names of alleged CIA agents and
saying:
I'm not doing It to impair the Intelligence
activities of the United States, I am doing
it to improve Intelligence activities. These
agents are misbehaving all over the world.
They shouldn't be monkeying around in
ligence activities, he is culpable. Any
reasonable person would know that by
naming names you are going to impair
the foreign intelligence activities of
the United States.
Now, there Is the crux of the prob.
lem between this different language.
It is not that we are dancing on the
head of a pin here. There are substan-
tial differences.
Mr. President, the Department of
Justice under President Carter and
the Department of Justice under
President Reagan both believe that
the better standard Is the one in our
amendment. This language protects
the individual and, furthermore, it en-
hances the chances of `obtaining a
prosecution at the same time.
Now. I note that the language of
this amendment is the only language
that has been endorsed by both the
Carter and the Reagan administration
Justice Departments. The issues which
this legislation involves have been
heard in detail. Our wording in this
amendment has been carefully worked
out and refined to Its current state.
Let me address for a moment the
committee language. -
The reason we are here this after-
noon, of course, is to strengthen the
intelligence capabilities of the United
States by prohibiting the unauthor-
ized disclosure of Information identify.
ing certain intelligence offices of our
country. This bill places criminal pen-
alties on those enemies of our intelli-
gence community engaged in this per-
nicious activity called naming names.
There Is no dispute that those who
are for the committee language and
those who are for the amendment
both object to the activity of the
naming of names. The difficulty comes
in whether the committee language
will accomplish the purpose of placing
criminal penalties on this activity be-
cause the committee language depends
on specific intent language. That is
the standard in the committee bill. it
offers serious prosecutorial problems
In the case of an individual that claims
that his intent is to inform the public
or even to improve U.S, intelligence.
Let me refer to the testimony of Mr.
Richard Willard, -who is the Attorney
General's counsel for -intelligence
policy, on October 6,1981. Mr. Willard
said:
foreign countries. We ought to be collecting The problem Is that Senator Bmrars ap-
intelligence with satellites or whatever it proach would invite evasion of the bin be-
might be. I'm not out to spoil or impair the cause people like Mr. Wont and others
intelligence activities of the United states. would say, "Well, my intent was to help in-
I'm out to "prove them. telligence activities by disclosing unsavory
Now, that is what we call the subjec- activities," and that would give them a de-
fense standard of intent. How do we get fense that they would seek to use. That is
into that why we felt the objective reason-to-believe
person's breast and deter- standard which Senator CRArm introduced
mine whether he is out to improve or to be better.
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 S 1172
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
. CONGRESSIONAL RECORD ?--- SENATE February 25, 1982
In the Judiciary Committee markup
of the original bill on October 6, 1981.
Senator BIDEN stated that:
All the folks we all agree we want to get
can be captured, figuratively and literally,
under the language I'am about to introduce.
However, it is my concern that this
is not the case. Many individuals who
indulge in "naming names" have sug-
gested that their purpose, their
"Intent," is not to impair or impede
U.S. intelligence activities. Their pur-
pose, they say, is to improve these ac-
tivities. For these individuals, the sub-
jective intent standard provides a loop-
hole big enough to drive a truck
through.
For example, in testimony before
the House Permanent Select Commit-
tee on Intelligence on January 31,
1981, William Schaap of the Covert
Action Information Bulletin, had this
to say:
Our publication ... is devoted to exposing
what *e view as the abuses of the Western
intelligence agency, primarily though not
exclusively the CIA, and to expose the
people responsible for those abuses. We be-
lieve that the best thing for the security
and- well-being of the United- States would
be to limit severely, if not abolish, the CIA.
Our intent both in exposing the abuses of
the intelligence agencies and in exposing
the people responsible for those abuses is to
increase the moral force of this Nation not
to lessen it. That the CIA would assume our
intent Is. simply to impair or impede their
foreign Intelligence also seems likely. Pa-
triotism Is to some extent in'the eyes of the
holder.
The implication of this testimony is
that Mr. Schaap does not believe his
intention is to "impair or impede" U.S.
intelligence activities. His activity is
patriotic.
It would seem, then, that he could
mount an effective defense under the
committee language, based on his
"intent," and that he would escape
prosecution because there is no crimi-
nal liability for his "pattern of activi-
ties."
Mr. President, It has been suggested
that the objective standard of criminal
liability under subsection 601(c) de-
parts from previous 'statutes, punish-
ment for disclosure'in the national se-
curity field. Some say, "We have never
heard of such a' thing. Every criminal
statute has intent. You have to have
intent on the part of the accused.
What do you do coming up with lan-
guage which talks about `reason to be-
sure of national defense information
which the person has "reason to be-
lieve could be used to the injury of the
United States or to the advantage of
any foreign nation." There is an exam-
ple of the "reason to believe."
. Similarly, 42 U.S.C.. section 2274(b)
punishes .disclosure of restricted
atomic energy data "with reason to be-
lieve such data will . be utilized to
injure the United States or to secure
an advantage to any foreign nation."
There are other examples.
Therefore, the standard which we
have adopted in this amendment is
consistent with past legislation where
Congress has punished disclosure
without requiring proof of specific
intent, but, rather, proof that the rea-
sonably foreseeable result would cause
injury to the United States or advan-
tage to a foreign power.
Of course, the question may be
asked whether the objective stand-
ard-the "reason to , believe" stand-
ard-will be sustained by the courts.
Clearly, we do not want to write some-
thing into this very important stat-
ute-which both sides are anxious to
get passed-that will not be sustained
by our courts. -
In the opinion of the Carter admin-
istration and in the opinion of the
Reagan administration Justice Depart-
ment, this standard, the Chafee-Jack-
son standard, will survive first amend-
ment and other challenges In the
courts.
Past. examples of where the "reason
to believe" standard has been upheld
would be:
Gorin against the United States,
1944, where the "reason to believe"
was characterized as sufficient
scienter in a criminal statute by the
Supreme Court;
Schmeller against the United States,
sixth circuit, 1944, where "reason to
believe" was upheld with no require-
ment to prove specific intent;
U.S. against Achtenberg, eighth cir-
cuit, 1972, where the "reason to be-
lieve" standard was deemed sufficient-
ly precise for the criminal. statute to
withstand an attack for vagueness and
overbreadth;
U.S. against Bishop, ninth circuit,
1979, where the "reason to believe"
standard was held to be sufficiently
precise to withstand a vagueness
attack;
U.S. against Progressive, Inc., Wis-
consin District Court, 1979, where the
"reason to believe" standard withstood
an attack for vagueness and over-
breadth.
In comparison to many existing stat-
utes the language which we have
placed in this amendment includes
language which narrows the scope of
criminal liability and therefore affords
greater protection for first amend-
ment rights. There must be proof that
the disclosure was made with reason
to believe that it "would impair and
Impede the foreign intelligence activi-
ties of the United States."
This standard is more carefully tai-
lored to the specific harm the statute
seeks to prevent than the more gener-
alized standard of injury to the United
States or advantage to a foreign
power...
As Judge Learned Hand observed,
there may be many cases where information
may be advantageous to another power and
yet not injurious to the V.S.
Judge Hand said that in United
States against Heine, 151 P.2d 813,
815(1945).
The language of our amendment fo-
cuses solely on injury to the United
States. In other words, it does not talk
about its being advantageous to a for-
eign power. It even restricts it further
than that-it involves not just broad
injury to the United States, but specif-
ic injury to the U.S. foreign intelli-
gence activities. -
So, unlike statutes that merely re-
quire reason to believe that informa-
tion could be used to the injury of the
United States, the Government must
prove that the reasonably foreseeable
result of this disclosure would be to
impair or impede particular U.S. Gov-
ernment functions that are exception-
ally important to the conduct of U.S.
foreign and military defense and that
depend upon secrecy for their success.
An even greater safeguard is the re-
quirement that the disclosure must
occur "in the course of a pattern of ac-
tivities intended to identify and expose
covert agents." The term "pattern of
activities" is defined in section 606(10)
of this statute, the bill that we are dis-
cussing today. The pattern of activi-
ties require a series of acts with a
common purpose and objective. It is
not one disclosure, It is a pattern of ac-
tivities to impair or impede U.S. for-
eign intelligence activities.
Thus. there must be proof not only
with regard to a particular disclosure,
but also with respect to the pattern of
activities in which the disclosure
occurs. The evidence must show that
such activities were undertaken both
to identify and - to expose covert
agents. A person must, in other words,
be engaged in the enterprise of ferret-
ing out the identities of individuals in-
volved in covert intelligence activities
and exposing their intelligence rela-
tionship to the United States. This
standard is more rigorous than the
current statutes punishing disclosure
of other types of national defense in-
formation.
The "pattern of activities" require-
ment Is designed to narrow the scope
of criminal liability without imposing
undue burdens on the prosecution of
offenses under section 601(c). It was
developed in consultation with the De-
partment of Justice, which strongly
endorses the language as preferable to
the "subjective intent" requirement in
the committee standard.
The alternative of requiring specific
intent to impair or impede intelligence
activities which the committee lan-
guage requires would place unneces-
But the facts are that the standard
we have adopted is consistent with ex-
isting espionage statutes and, if any-
thing, offers greater protection for
first amendment rights.
All the existing espionage laws
which can apply to those without au.
thorized access to. classified informa-
tion require that an individual be en-
gaged in an activity with one of two
things: Either there be an "intent,"
which is true in some statutes, or that
there be a "reason to believe," as we
have here, and sometimes both.
For example, 18 U.S.C., section
793(e), punishes unauthorized disclo-
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 S 1174
Approved For Release 2008/12/01 : CIA-RDP85-00003R000200030007-6
CONGRESSIONAL RECORD -SENATE February 25, 1982
be made to have this legislation enacted this
year.
Yours sincerely.
STANSFIELD TURNER.
THE DIRacroR,
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., April 29, 1981.
Hon. EDWARD P. BOLAN% s
Chairman, Permanent Select Committee on
Intelligence, House aT Representatives,
Washington, D.C.
DEAR MR. CHAIRMAN: During the course of
the recent hearings on the proposed "Intel.
ligence Identities Protection Act" before the
Subcommittee on Legislation, the following
requests were made of me:
Representative Ashbrook asked, as a
drafting service, that we provide him with
language for a "false identification" provi-
sion that would meet constitutional muster,
Representative Fowler asked for the
Agency's official views on the Senate ver-
sion of subsection 501(c) and the so-called
"Kennedy Compromise" suggested in the
closing days of the 96th Congress.
As to Representative Ashbrook's request,
one such version Is presently found In sub-
section 800(d) of H.R. 133, the "Intelligence
Officer Identity Protection Act of 1981," in-
troduced by Representative Charles E. Ben-
nett (D., Fla.). Mr. Bennett'a formulation
contains a harm standard, that is, prejudice
to the safety or well-being of any officer,
employee, or citizen of the U.S. or adverse
impact on the foreign affairs functions of
the United States. The Bennett formulation
provides a readily available solution. The
formulation that appears in H.R. 133 is as
follows:
"Whoever falsely asserts, publishes, or
otherwise claims that any individual is an
officer or employee of a department or
agency of the United States engaged in for-
eign intelligence or counterintelligence ac-
tivities, where such assertion, publication.
or claim prejudices the safety or well-being
of any officer, employee, or citizen of the.
United States or adversely affects the for-
eign affairs functions of the United States,
shall be imprisoned for not more than five
years or fined not more than $50,000, or
both."
In the course of the testimony by Richard
K. Willard, the Attorney General's Counsel
for Intelligence Policy stated that, In his
opinion, a "false Identification" provision
containing a "life endangerment" element
would be both enforceable and constitution-
al. I would stress, however, that such a
physical harm standard would not be suit-
able for the sections of the Bill which cover
correct identifications of intelligence per-
sonnel. The physical safety of our people is,
of course, a matter of grave concern, but the
Identities legislation is designed to deal pri-
marily with the damage to our intelligence
capabilities which is caused by unauthorized
disclosures of Identities, whether or not a
particular officer or source is physically
Jeopardized in each individual case.
As to the first question posed by Mr.
Fowler, i.e., the Agency's views on the Sen.
ate's version of subsection 501(c), we start
from the basic premise that H.R. 4 and S.
391 are essentially similar. Both are careful-
ly and narrowly crafted Bills which could ef-
fectively remedy the problems posed by the
unauthorized disclosures -of intelligence
identities, and withstand challenge on con-
stitutional grounds. Thus, the CIA would
support enactment of either H.R. 4 or S.
391. As you know, the Bills do differ with re-
spect to the standard of proof that would
apply to individuals who have not had au-
thorized access to classified Information,
and which would criminalize their disclo-
sures of identities even if these disclosures
cannot be shown to have come from classl-
fled sources. This has been the most contro-
versial part of Identities legislation, and it is
also the key provision from the standpoint
of the legislation's potential effectiveness in
deterring unauthorized disclosures. We have
concluded that the objective standard of
proof contained in S. 391 (i.e., "reason to be-
lieve that such activities would impair or
Impede... ') is preferable to the subjective
standard set forth in H.R. 4 (i.e., "with the
intent to Impair or impede..: ). This pref-
erence is based upon a number of factors.
Including prospects for successful prosecu-
tions under the differing formulations. We
have discussed this matter at great length
with the Department of Justice, and we be-
lieve that our preference for S. 391 is In
accord with the Department's views. .
Mr. Fowler's second question goes to the
Issue of the so-called "Kennedy Compro-
mise," printed in the 30 September 1980
Congressional Record and set forth herein
below:
"Whoever, in the course of a pattern, of
activities undertaken for the purpose of un-
covering the Identities of covert agents and
exposing such identities (1) in order to
impair or impede the effectiveness of covert
agents or the activities in which 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 not
authorized to receive classified Information,
knowing that the information disclosed so
identifies such Individual and that the
United States Is taking affirmative measures
to conceal such individual's classified intelli-
gence relationship to the United States,
shall be fined not more than $15,000 or Im-
prisoned not more than three years, or
both."
This formulation appears to raise the
same kinds of problems of proof of intent
which the Department of Justice believes
are present in the current formulation of
the subsection 501(c) offense in H.R. 4. since
the Government would have to show that
the disclosure was made "in order to"
impair or impede the effectiveness of covert
agents or their activities. A defendant could
assert that his activities and his disclosures
were done "In order to" to accomplish some
other purpose. Inclusion of the alternative
"reckless disregard" standard in any 501(c)
type provision would be of doubtful value. It
is difficult to understand what is meant by
"reckless disregard" in the context of the
Identities Bill, since Congress, by enacting
Identities legislation Is in effect making a
finding that unauthorized disclosures of
identities do in fact threaten the personal
safety of Intelligence personnel A reckless
disregard standard would apparently mean
that the Government would have to make
an additional showing of physical endanger-
ment in each particular case. This, from a
deterrent perspective, would appear to be
inadvisable.
Additionally, the Committee may wish to
consider one technical amendment to H.R.
4. not mentioned in the course of the recent
Identities hearings, but nonetheless dictated
by enactment in the 96th Congress of S.
1790, the "Privacy Protection Act of 1980,"
legislation signed into law by President
Carter on 14 October 1980 and designed to
modify the Supreme Court's decision in
Zurcher v. Stanford Daily. The enactment
of this legislation has a bearing on our ef-
forts to' secure passage of Identities legisla-
tion. The Identities legislation should in-
clude a provision amending subsections
101(a)(l) and 101(b)(1) of the Privacy Pro-
tection Act so as to include the proposed
new title of the National Security act of
1947 among the "receipt, possession, or com-
munication" of national security informa-
tion offenses with regard to which searches
and seizures may be conducted under the
exceptions provided in those subsections.
Should you have any questions concerning
the views expressed in this letter. please do
not hesitate to contact my Legislative Coun-
sel directly. We look forward to working
with the Committee to ensure prompt en-
actment of Identities legislation.
Sincerely,
WILLIAM J. CASEY.
Orricz or THE ATTORNEY GENmss.,
Washington, D.C., July 20, 1981.
Hon. STROM THVRMOND,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN: It is my understand-
ing that the Committee on the Judiciary is
presently considering S. 391, the proposed
Intelligence Identities Protection Act, which
was introduced by Senator Chafee on behalf
of himself and a number of distinguished
Members of the Senate. My representative
testified in favor of this bill earlier this year
in hearings before the Subcommittee on Se-
curity and Terrorism. I would like to take
this opportunity to assure you of my strong
personal support for this legislation.
The recent decision of the Supreme Court
in Haig v. Agee emphasized that
"(m)easures to protect the secrecy of our
Government's foreign intelligence oper-
ations plainly serve compelling national se-
curity interests." The Court rejected Agee's
First Amendment claim with the following
analysis:
"The revocation of Agee's passport rests
in part on the content of his speech: specifi-
cally, his repeated disclosures of intelligence
operations and names of Intelligence per-
sonnel Long ago, however, this Court recog-
nized that "No one would question but that
a government might prevent actual obstruc-
tion to its recruiting service or the publica-
tion of the sailing dates of transports or the
number and location of troops." Near v.
Minnesota, 283 U.S. 697, 716 (1931), citing
Chafee, Freedom of Speech 10 (1920).
Agee's disclosures, among other things, have
the declared purpose of obstructing inteW-
gence operations and the recruiting of intel-
ligence personnel They are clearly not pro-
tected 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."
I believe this Supreme Court decision
should resolve any lingering doubt that may
exist concerning the constitutionality of the
proposed legislation.
Speedy enactment of legislation to protect
covert agents' identities deserves the high-
est priority, and I strongly recommend that
S. 391 be favorably reported out of the Com-
mittee.
Sincerely,
WILLIAM FRENCH SMITH,
Attorney General
THE WHITE HOUSE,
Washington, September 14, 1981.
Hon. Smote THURMOND.
U.S. Senate,
Washington, D.C
DEAR SENATOR THuaMOND: It is my under-
standing that the Senate Judiciary Commit-
tee will consider S. 391. The Intelligence
'Identities Protection Act of 1981, on Tues-
day. September 15.
Passage of legislation to provide criminal
sanctions against those who make it their
business to identify and expose our intelli-
gence officers is a key element of my pro-
gram to rebuild and strengthen US Intelli-
gence capabilities. Nothing has been more
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 - Approved For Release 2008/12/01 : CIA-RDP85-00003R000200030007-6
February 25, 1982 ' CONGRESSIONAL RECORD - SENATE
damaging to our intelligence effort than the
pernicious, unauthorized disclosures of the
names of those officers whom we send on
dangerous and difficult assignments abroad.
Attorney General Smith advises that the
Senate version of this legislation. S. 391, is
legally sound, both from a prosecution per-
spective and in the protection it provides for
constitutional rights of innocent Americans.
Any change to the Senate version would
have the effect of altering this carefully-
crafted balance.
I cannot overemphasize the importance of
this legislation. I hope I can have your sup-
port in reporting out S. 391 without amend-
ment.
Sincerely,
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., September 30, 1981.
EDITOR,
The New York Times,
New York, N.Y.
DEAR SIR: Your editorial of September 28.
1981, "A Dumb Defense of Intelligence," in-
correctly represents the position I have
taken on legislation to protect the identities
of covert agents. I have consistently sup-
ported and advocated the Senate language
in S. 391 and H.R. 4. as amended and passed
by the House on September 23. as more cer-
tain to be effective in ending the pernicious
unauthorized disclosures which are jeopar-
dizing our nation's intelligence efforts and
threatening those engaged or assisting in
difficult and dangerous assignments
abroad.
Opponents of this crugial legislation, in an
effort to delay and ? obstruct final enact-
ment, are quick to allege its constitutional
Infirmity. However, the legislation in its cur-
rent form has had the bipartisan support of
the Carter and now the Reagan White
House and Justice Departments. We are
confident that the legislation will pass con-
stitutional muster. There is no doubt that
disclosures of agent identities constitute a
clear danger to this nation's first line of de-
fense, its intelligence apparatus. Recently,
the U.S. Supreme Court in Haig v. Agee
stated that such "conduct ... presents a
serious danger to American officials abroad
and serious danger to the national security"
and that these disclosures " .. clearly are
not protected by the Constitution."
We can no longer afford delay. Every day
means more unauthorized disclosures, more
operations compromised, more lives endan-
gered, more loss of confidence in our ability
to keep secrets on the part of foreign intelli-
gence services willing to cooperate with us.
The Senate should delay no longer.
Sincerely,
WrLLIAM J. CASEY,.
Director of Central Intelligence-
STATEMENT'BYTHE PRESIDENT
I am pleased today to sign into law H.R.
3454, the Intelligence Authorization Act for
Fiscal Year 1982. This act represents a sig-
nificant first step toward achieving revital-
ization of our Nation's intelligence commu-
nity. The President of the United States
must have timely, accurate, and insightful
foreign intelligence in order to make sound
national defense and foreign policy deci-
sions. This act helps to assure. that we will
have the necessary intelligence Information
to make these difficult decisions.
The Congress has with this act authorized
appropriations sufficient to assure that we
continue to have the world's best and most
professional intelligence service. The Con-
gress has also provided new administrative
authorities to the heads of the Nation's
three major intelligence agencies to assure
that they can perform their missions more
effectively. I hope that the spirit of cooper-
ation between the Legislative and Executive
Branches which resulted in this act will con-
tinue as we move to rebuild our Nation's in-
telligence capabilities.
I would also note my hope that I will soon
be able to sign the Intelligence Identities
Protection Act, which has passed the House
and Is awaiting floor action In the Senate: I
strongly support enactment of this measure,
preferably in the form in which it was
passed by the House of Representatives; we
must act now to protect our intelligence per-
sonnel, who serve our Nation under what
are often difficult and dangerous circum-
stances.
THE Wxrrs Housz,
Washington, February 3,198Z
Hon. HOWARD H. BAKER,
Majority Leader, U.S. Senate,
Washington, D.C.
DEAR SENATOR BAKER: Legislation to make
criminal the unauthorized disclosure of the
names of our intelligence officers remains
the cornerstone for the Improvement of our
intelligence capabilities, a goal that I know
we share. 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. Unfortunately, these disclosures con-
tinue with impunity, endangering lives, seri-
ously impairing the effectiveness of our
clandestine operations, and adversely affect-
ing morale within our intelligence agencies.
Last September the House of Representa-
tives overwhelmingly passed the Adminis-
tration-supported version of the Intelligence
Identities Protection Act. The Senate is
soon to take up consideration of this legisla-
tion, and you will have before you two ver-
sions. While I believe that both versions are
fully protective of constitutional guaran-
tees, Attorney General Smith and I firmly
believe that the original version, first intro-
duced by Senator Chafee and others, is far
more likely to result in an effective law that
could lead to successful prosecution. .
I strongly urge you and each of your col-
leagues to support the carefully-crafted
Chafee-Jackson amendment to S. 391. I
cannot overemphasize the importance of
this legislation.
Sincerely,
RONALD REAGAN.
Mr. CHAFEE. Mr. President, for
those who argue that the administra-
tion does not care whether it gets the
Chafee-Jackson language or the com-
mittee language, I should like to read
the President's letter to Senator
BAKER and Senator ROBERT C. BYRD
this month.
DEAR SENATOR BAKER: Legislation to make
criminal the unauthorized disclosure,of the
names of our intelligence officers remains
the cornerstone for the improvement of our
intelligence capabilities, a goal that I know
we share. 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. Unfortunately, these disclosures con-
tinue with impunity, endangering lives, seri-
ously impairing the effectiveness of our
clandestine operations, and adversely affect-
ing morale within our Intelligence agencies.
Last September the House of Representa-
tives overwhemingly passed the Administra-
tion-supported version of the Intelligence
Identities Protection Act. The Senate is
soon to take up consideration of this legisla-
tion, and you will have before you two ver-
sions. While I believe that both versions are
fully protective of constitutional guaran-
S 1175
tees, Attorney Gened Smith and I firmly
believe that the origiast version. first intro-
duced by Senator Cbsiee and others, is far
more likely to result lean effective law that
could lead to successful prosecution. --
I strongly urge you and each of your col-
leagues to support the carefully-crafted
Chafee-Jackson amedaent to S. 391. 1
cannot overemphasise the importance of
this legislation.
Sincerely.
RONALD REAGAN.
It seems to me that this letter makes
the administration' support for our
amendment perfect1y clear.
Finally, it has been argued by propo-
nents of a subjective intent standard
that, iri order to be constitutional
under Supreme Caort precedents, a
law punishing disclosure must require
proof of an intent is do harm. For ex-
ample, on May S. 1981, a witness
before the Subcozttee on Security
and Terrorism of the Senate Commit-
tee on the Judiciary stated that:
Professor Scalia ? ? ? expressed the clear
view that the absence of a bad purpose
would make the statuteanconstitutional.
This assertion is not. however, sup-
ported by careful amlysis of the appli-
cable cases and constitutional princi
ples.
In fact, Prof. Antonin Scalia of the
University of Chios Law School has
testified with respect to the reason to
believe standard in section 601(c):
If the character of tine information were
defined . narrowly enosaid, if the individual
against whom the law Is directed were de-
fined narrowly enough,I think such a provi-
sion might well be smtined. "1981 House
Intelligence Committee Hearings."
Given the extremely limited type of
information covered and the narrow
class of individuals engaged In a pat-
tern of activities intended to identify
and expose covert agents, there is
little risk of unconstitutionality in S.
391 as originally introduced.
The central constitutional question
presented by any prohibition against
disclosure is: What danger does the
disclosure create? It may be that if a
person intends to produce harm, his
intention may Itself Increase the risk
that the harm will eecur. But the Su-
preme Court has held that all the cir-
cumstances of the cane must be taken
into account before the actual danger
can be assessed for first amendment
purposes. Disclosure may be Innocuous
in fact-it may have no -reasonable
likelihood of creating a danger the
Government is entitled to prevent-
even though the intentions of the
person are of a different character.
Our amendment adopts standards that
are directly relevant to the central
constitutional concern of showing the
reasonable likelihood of serious harm.
In summary, the Chafee-Jackson
amendment contains language which
is consistent with existing statutes
punishing disclosure of national secu-
rity information; it narrows the scope
of criminal liability without imposing
undue obstacles to effective enforce-
ment; it meets the constitutional re-
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 S 1176
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
CONGRESSIONAL RECORD - SENATE February 25, 1982
quirements of the first amendment;
and it will provide for the effective
prosecution of those who spend their
time naming names.
Mr. President, over the past 5 years,
more than 2,000 names of alleged CIA
officers have been identified and pub-
lished by a small group of individuals
whose stated intention is to expose
U.S. intelligence operations. I think It
is time we legislated an end to this
vendetta against the American intelli-
gence community.
We send fellow Americans abroad on
dangerous missions; missions which
are directed and ordered by our Gov-
ernment. We owe It to them to do our
utmost to protect their lives as they go
about our business. S. 391, with our
amendment, will provide this protec-
tion. and I urge my colleagues to sup-
port the Chafee-Jackson amendment
and final passage of this bill.
Mr. President, there is no debate or
argument on this floor that somebody
is more for the first amendment than
anyone else. There is no argument on
this floor as to whether one group Is
more for successful prosecution, more
for stemming the publication of the
names of these agents than another.
There is none of that. The argument
here solely is how we can best craft
this language to accomplish, the goals
we all seek. It is my view, the view of
two administrations, the view of the
Attorney General of the United
States, and the view of the President,
that the language of this amendment
best accomplishes that goal, best per-
mits us to move forward with the suc-
cessful prosecution of these despicable
persons who publish the names of
agents of the United States.
Mr. BIDEN. Mr. President, the hour
is getting late. We are going to have a
chance, as I said, on Monday to get
into great detail on this, but I should
like to take 5 minutes now to make
some initial rebuttal to the points
raised by the Senator from Rhode
Island. I am going to pick only a few
of the things he has said today.
The first comment the Senator
made in the early part of his state-
ment was as to how we get into the
breast of the person making the state-
ment. The phrase is, "How do we get
into the breast of the person making
the statements?"
I suggest that we get into the breast
of the person making the statements,
or disclosing the name, the same way
we get into the breast of a defendant
accused of robbery or murder or rape
or larceny or anything else. We get
into the breast by looking at all the
circumstances surrounding what. that
person did.
I should also like to point out that
the way the judges usually tell the
juries to get into the breast of a
person accused of crime is by instruct-
ing the juries on what intent means.
They say the following, which is from
section 14.03, "Specific Intent," Devitt
and Blackmar, vol. I, Federal Jury
Practice and Instructions, third edi-
tion 1977.
Remember, we have a defendant,
and the prosecution says, "This guy
killed Cock Robin." Then the judge
says, "You have to find that he spe-
cifically meant to kill Cock Robin." He
had to have intent to kill Cock Robin.
It could not have been an accident.
What I mean by intent is this: "Specif-
ic intent," as the term implies, means-
more than the general intent to
commit the act. To establish specific
intent the Government must prove
that the defendant knowingly did an
act which the law forbids (knowingly
failed to do an act which the law re-
quires,) purposely intending to violate
the law.
This is the important part: "Such
intent-may be determined from all the
facts and circumstances surrounding
the case.
"An act or failure to act is knowingly
done if done voluntarily and intention-
ally, and not because of mistake or ac-
cident or other innocent reason."
The Senator goes on and makes a
very compelling argument. I should
note for the Record that he is a very
worthy adversary on this matter. It
sounded good to me. As a matter of
fact, he had me believing it for a
second.
The Senator says we have these guys
who are publishing these bulletins
saying, "Well, I intended to help
America when I disclosed the name of
Joe Doakes, who is an agent of the
CIA, so don't find me guilty because,
although I intended something, I did
not intend to hurt. I intended to
help."
I submit that under the reason to
believe standard, he-can say the same
thing. He can stand before the jury
and.say: "Ladies and gentlemen, I had
reason to believe this would help
America when I disclosed the name of
Joe Doakes."
I had reason to believe that because
I know from great experience in the
area that we are not trusted around
the world because of the CIA. They do
not like us because of the CIA, and the
real reason, the way to help America is
to uncover CIA agents. So I have
reason to believe that this would help.
not impede.
So if he would be able to stand
before a jury and say with any degree
of credibility, "Ladies and gentlemen
of the jury, I did not intend to hurt,"
he could also stand before the jury
and say, "Ladies and gentlemen of the
jury. I did not have reason to believe
this would hurt; I had reason to be-
lieve it would help."
So, if it applies to intent, it is kind of
a specious argument to say it also im-
plies to reason to believe, but the
kicker is that in either case the jury is
going to sit back and say, "Now, wait a
minute, what did he do here? Did he
intend to do this? Let us look at all the
facts and circumstances. Did this guy
mean-sure, he Intended to publish be-
cause he published-but did the intend
to hurt?"
We make distinctions. For example,
we have all read in the newspaper and
if my colleagues will read the REcoan
they will read all the exposures about
Wilson and Terpil, former CIA agents.
What are they doing? They are fooling
around with Qadhafi in Libya and
they are selling arms, and they are
doing all these things.
Were it not for the innovative and
anxious press intending to help Amer-
ica, not impede It, we would have not
found out very much about that. It
was not the CIA that came to us and
told us. these guys were out fooling
around. It was the press, an inquiring
press. I want the press going out there
intending to expose those people.
They publish the name of the CIA
agent. They did it with the intent to
help America. In this case they did.
. According to the jury instruction,
that is up to a jury to believe. Does it
help America for a press person to
expose the name of an agent who may
be a mole in the CIA, who may be sell-
ing arms to an enemy?
That is a question for the jury to
decide just like it is if Mr. Schaap
stood before the jury and said, "Well.
when I published all these names in
this bulletin I intended to help."
The jury makes that decision just
like they would in "reason to believe."
They say, "Biden, you are making a
pretty convincing argument here. Why
do you not just accept 'reason to be-
lieve' then?"
The problem with "reason to be-
lieve" is it has what we call in the law
a chilling effect on that reporter who
wants to go out there and expose
something that is harming the United
States, wants to find the mole in the
CIA, if there is one, wants to find out
whether that jerk Terpil is in fact sell-
ing weapons to Qadhafi and aiding ter-
rorism, wants to expose the fact that
there may be a CIA agent involved in
international drug trafficking.
Now, he knows under the intent
standard that he can stand before a
jury and say: "Hey, I was not intend-
ing to hurt;,I was intending to help
the CIA, and let me tell you the facts;
the facts are this guy was dealing in
drugs. The facts are this guy is a KGB
agent, not a CIA agent. The facts are`
that this guy is selling arms to terror-
ists. Jury, what do you think? Do you
think I am meaning to help or hurt?"
We do not even get to that in the
"reason to believe" standard because
we establish a "pattern of activities" _
easily. We do not have to have them
publish 50 names on 50 different days
or 3 names, or 20 names, but only 1.
All we have to do is establish this one
reporter went around and spoke to 10
people and said, "What about Mark
here? What about it? What do you
know about him?"
And you go and go to you, "What do
you know about him?"
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 Approved For Release 2008/12/01 : CIA-RDP85-00003R000200030007-6
February 25, 1982 CONGRESSIONAL RECORD -SENATE
And go to you and say, "What do
you know about him? ?
And go to the Senator from Califor-
nia and say. "What do you know about
him?"
I am establishing a pattern of activi-
ty. The activity is that I am running
around and I am going to end up ex-
posing Joe Doe. I am going to publish
Joe Doe's name.
Under the law the prosecution will
be able to walk into court and say:
"Wait, the pattern of activity. Did you
not go around and speak to 25 people
to find this out and discover this guy's
name?"
"Oh, yes, I did that."
All right. There we have the pattern
of activity.
"When you went to the CIA and said
what do you know about Joe- Doakes,
did not the pressman for the CIA
fellow look at you and say, 'Wait a
minute.I have to tell you right now,
you are on slippery turf. You may very
well be jeopardizing the security of
the United States of America. I want
to warn you of that right this
minute."'
Now, OK. The reporter says,
"Now there is a 'reason to believe'
standard in the law. The CIA just told
me I better not go any further because
I am going to hurt the United States
of America If I go any further."
Now, does that mean that I have al-
ready crossed the threshold of the
"reason to believe"? Does that mean if
I get dragged Into court even though I
am out to help, not hurt, and even
though I am exposing a jerk like
Terpil or Wilson, even though I am
uncovering a KGB agent in the CIA-
have I met the second standard al-
ready? -
Let us face it. Whether you are talk-
ing to a CIA man or whether you are
talking to someone in the Defense De-
partment or whether you are talking
to a press secretary for a U.S. Senator,
they are not going to encourage you to
investigate anything. So what do we
all instinctively do? We are going to
say, "You better be careful." And now
when this guy has the story or that
woman has her story they go to their
editor and they sit down with the
editor and say:
"You know, I have a story that is
going to blow this place wide, open. I
found out we have some CIA agents
who are selling arms to Libyans and
they are hurting us, they are lying to
the Government."
And the editor is going to say, "Now,
wait a minute, are you all ready to go
to jail?"
No; I do not want to do that.
OK. Let me ask you: How do you
know it is true?
"Well, I tell you here it is true," and
you lay it out.
They say, "Now, are you sure you
are not missing something?" What
happens if you publish this and this is
really a double cover for something
else that is behind all of this and
Wilson and Terpil are really triple
agents, not double agents?
They say. "What did they tell you
out at the agency?" "They told me I
am on thin ice. They told me I better
not go any further."
Wait a minute, gee, does that mean
we have reason to believe that? Should
not I have done this?
That is not a spot to put the press
in. That is not what we are about.
That Is not where we are.
So the reason to believe ends up
being an incredibly subjective stand-
ard rather than the objective standard
that the Senator is genuinely trying to
accomplish.
He really means, and I believe every
word he says, he really and truly
means that this is the best way to pro-
tect not only America, the CIA agent,
but also our civil liberties and a free
press.
I respectfully argue and suggest that
is not the case. And when you get
down to the point again that he made
so eloquently, the Senator from
Rhode, Island said this guy, Schaap-
and I want to note for the REcoRn not
former Gov. Milton Schaap-Schaap
says in testimony, "I do not intend to
hurt. I intend to help."
And the Senator from Rhode Island
says, "Well, he is going to be able to
say to a jury," and implies they will
probably believe him and he probably
will get away with it. Again let me em-
phasize that if he can stand before the
jury and say, "I did not intend to hurt,
I Intended to help," he can also stand
before the jury and say, "I had no
reason to believe that I was hurting; I
had every reason to believe I was help-
ing, and it is a bit of a red herring to
argue whether or not this is going to
make it easier or harder before a jury
because they are going to look behind,
they are going to look at the totality
of the acts.
But what in fact is at stake is wheth-
er or not some reporter will. believe
that they will have a chance to make
the arguments as to what they intend-
ed to do.
In the espionage statute-and .we
will go into this in great detail
Monday, because I am sure the Sena-
tor will be back to it-the court usual-
ly takes two portions of the statute to
come up with the conclusion that
there was intent. The point I really
want to make here -is I spent 2 years
doing a study for the Intelligence
Committee on the espionage laws of
this country and in fact with the help
of Mr. Gitenstein, who was then on
the Intelligence Committee and now
on the Judiciary Committee staff, we
went back and looked at every damage
assessment report for the previous 10
years on leaks In espionage activities
to write a tough espionage statute.
You know what we found out? We
found out there is hardly any success-
ful leak prosecutions under the Espio-
nage Act, hardly any.
I would respectfully suggest to you
that one of the reasons why it is diffi-
S 1177
cult, from the testimony we had. Is.
they said, "Hey, the prosecution is
constantly coming and saying 'We
cannot make a case with the "reason-
to-believe" portion of the statute.
That gets In our way, does not help
us., ..
I hope we are going to hear from, on
Monday, my colleague from Pennsyl-
vania, a former prosecutor, on the
other side of the aisle, who, I think,
will make the case fairly eloquently
that It would be harder to get a convic-
tion under the "reason-to-believe"
standard than under . the "intent"
standard.
I will also argue in some detail on
Monday the constitutionality of the
standard of "reason-to-believe."
I would just like to note for the
record and put In the REcoRD a list of
over 100 law professors, the most out-
spoken.one of whom is Prof. Philip
Kurland of the University of Chicago.
They all say that the "reason-to-be-
lieve" language Is unconstitutional as
it is applied in the proposed statute.
One other point- I would like to'
make-there are many more to make,
but just one other point at this junc-
ture-the Senator from Rhode Island;
as he always is. -is completely candid,
and let me be completely candid. The
argument is not whether or not this
administration wants the Biden lan-
guage or the Chafee language more. It
wants the Chafee language more,
there is not any question about it.
This administration says, "We want
the Chafee language," but they also
said in testimony before our commit-
tee, they have always said repeatedly,
-that the Biden language can get the
job done.
What we are about here is getting
the Job done of putting these folks in
jail who are, in fact, attempting to
impede or impair the foreign intelli-
gence activities of the United States of
America.
I suggest to you that in our public
and private conversations the adminis-
tration feels fairly strongly about It.
But they also feel fairly strongly
about the Senator from Rhode Island,
and I would, too, if I were a Republi-
can President. He is one of the most
competent people they have, and if he,
came to me and said, "This is impor-
tant to me, but I think 'this is right-
not that it is important to me person-
ally-but this is the way to go, and
both of them will get the job done, but
the Chafee language will do the job," I
would sure say, "The Chafee one is
the one I want."
I admit that this administration does
not think-it has consistently not
thought-that the Chafee language
could be unconstitutional. So looking
at it from the President's side of the
ledger he says, "Both can get the Job
done. One is constitutional, one is in-
troduced by Bznsrr, not a very strong
supporter of mine, and the other one
is introduced by the Senator from
Rhode Island. Which one am I going
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 8 1178
Approved For Release 2008/12/01 : CIA-RDP85-00003R000200030007-6
CONGRESSIONAL RECORD= SENATE " February 1982
to go with? Of course. I am going to go
with the Chafee one."
But that is not really the issue. The
issue is, on ll;Ly side of the argument,
"Look, it simply comes down to this:
Why take a chance on its being uncon-
stitutional? Why take a chance on it
being harder to get a prosecution be-
cause the statute is struck down and
go with the Chafee language when we
both admit they both get the job
done?"
The Chafee side of the argument, I
would suspect, comes down in the final
analysis to. "Look, even though they
can both get the job done, they are
both constitutional, why fool around
with the Biden language because I
think ours can get the job done better
and faster?"
I mean, we are really arguing on the
margins here, and I am constrained to
wind up now because there is a very
strong supporter of this position of
the committee's who wants to speak
now. Again I will have much more to
say, but I would like very much to
submit for the RacoRD, and I ask
unanimous consent, a list of all those
law professors who concurred with the
position I just took, and a letter from
Professor Kurland be printed in the
RECORD, along with a letter from Laur-
ence H. Tribe, professor of law at Har-
vard University to Senator-KENNzDY in.
September of 1980.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
PROFESSOR KIIRLAND ON S. 2216
Perhaps the sharpest and most succinct
scholarly criticism of S_ 2216 came from
Philip B. Kurland, Professor of Law at the
University of Chicago and one of the na-
tions leading constitutional scholars:
Hon. EDWARD KENNEDY,
Chairman,
Committee on the Judiciary,
Washington, D.C.
DEAR SENATOR KENNEDY: In response to
your request, I can frame my opinion on the
constitutionality of Sec. 501(c) very precise-
ly. I have little doubt that it is unconstitu-
tional. 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. Although
I recognize the inconstancy and Inconsisten-
cy in Supreme Court decisions. 'I should be
very much surprised if that Court, not to
speak of the lower federal courts, were to le-
gitimize what is, for me, the clearest viola-
tion of the First Amendment attempted by
Congress in this era. -
With all good wishes,
Sincerely yours,
PHILIP B. KURLAND.
SEPTEMBER 25, 1980.
We believe that Sections 601(c) of S. 391
and 501(c) of H.R. 4, which would punish
the disclosure of the Identity of covert CIA
and FBI agents derived solely from unclassi-
fied information, violate the First Amend-
ment and urge that they be deleted.
Charles Abernathy, Professor of Law,
Georgetown University Law School.
Bruce Ackerman, Professor of Law, Yale
University Law School.
Barbara Aldave, Professor of Law, Univer-
sity of Texas Law School.
George Alexander, Professor of Law, Uni-
versity of Santa Clara Law School.
? Judith Areen, Professor of Law. George-
town University Law School.
Peter L. Arenella, Professor of Law,
Rutgers University School of Law.
Richard Arens, Professor of Law, Univer-
sity of Bridgeport School of Law.
Charles E. Area, Professor of Law, Univer-
sity of Arizona College of Law. "
Robert Aronson, Professor of Law, Univer-
sity of Washington School of Law.
Frank Askin, Professor of Law, Rutgers
University School of Law.
Barbara Babcock, Professor of Law, Stan-
ford University.
Fletcher Baldwin, Professor of Law, Uni-
versity of Florida College of Law.
Elizabeth Bartholet, Professor of Law,
Harvard University Law School.
Patrick Baude, Professor of Law, Indiana
University School Law School.
Paul Bender, Professor of Law, University
of Pennsylvania Law School.
Carolyn Bratt, Professor of Law, Univer.
sity of Kentucky College of Law.
Ralph S. Brown. Jr., Professor of Law,
Yale University Law School.
Burton Caine, Professor of Law, Temple
University School of Law.-
Oscar Chase, Professor of Law. New York
University School of Law.
Paul Chevigny, Professor of Law, New
York University School of Law.
Michael Churgin, Professor of Law, Uni-
versity of Texas Law School. _
John M. Hyson. Professor of Law. Villan-
ova University School of Law.
Stanley Ingber, Professor of Law, Univer-
sity of Florida College of Law.
Louis A. Jacobs, Professor of Law. Ohio
State University College of Law.
Peter Jaszi, Professor of Law. American
University. Washington College of Law.
Arthur Kinoy. Professor of Law. Rutgers
University School of Law.
Lewis Kornhauser. Professor of Law, New
York University School of Law.
John R. Kramer, Professor of Law,
Georgetown University Law School.
Stanley K. Laughlin, Professor of Law,
Ohio State University College of Law.
Howard Lesnick, Professor of Law, Univer-
sity of Pennsylvania Law SchooL
John Leubsdorf, Professor of Law, Boston
University Law School.
Allan Levine. Adjunct Professor of Law,
Cardozo School of Law. ?
Sanford Levinson. Professor of Law, Uni-
versity of Texas Law School.
John Levy. Professor of Law, College of
William and Mary. Marshall-Wythe Law
School
Lance Liebman, Professor of Law, Harvard
University Law School.
Jeffrey A. Meldman, Professor of Law.
Massachusetts Institute of Technology.
Louis Menand, Professor of Law, Massa-
chusetts Institute of Technology.
Roy Mersky, Professor of Law. University
Georgetown University Law School. of Texas Law School.
Robert Emmet Clark, "Professor of Law Elliot Millsteln, Professor of Law, Ameri-
Emeritus, University of Arizona College of can University, Washington College of Law.
Law. Arvil Morris, Professor of Law, University
Sherman Cohn, Professor of Law, George- of Washington School of Law.
town University Law School. Jack Murphy, Professor of Law, George-
Tom A. Collins, Professor of Law, College town University Law School.
of William and Mary, Marshall-Wythe Law Winston P. Nagan. Professor of Law, Uni-
School. versity of Florida College of Law.
Vern Countryman, Professor of Law, Bar- Barry Nakell. Professor of Law, University
vard University Law School. of North Carolina Law School.
Alan M. Dershowitz, Professor of Law. James C. Oldham, Professor of Law,
Harvard University Law School. Georgetown University Law School.
Norman Dorsen, Professor of Law, New Joseph A. Page, Professor of Law, George-
York University School of Law. town University Law School
Steven B. Duke, Professor of Law, Yale Richard D. Parker, Professor of Law, Har-
University Law School. vard University Law School.
Thomas I. Emerson, Professor of. Law Daniel Partan. Professor of Law, Boston
Emeritus, Yale University Law School. University Law School.
Nancy S. Erickson, Professor of Law, Ohio Cornelius Peck, Professor of Law. Univer-
State University College of Law. sity of Washington School of Law.
David B. Filvaroff, Professor of Law, Uni- Willard H. Pedrick, Professor of Law, Ari-
versity of Texas Law School. zona State University College of Law.
Caleb Foote, Professor of Law, University Leroy Pernell, Professor of Law, Ohio
of California Law School. State University College of Law.
Jack Getman, Professor of Law, Yale Uni- Michael Perry, Professor of Law, Ohio
versity Law School State University College of Law.
Steve Gillers, Professor of Law, New York Daniel H. Poliitt, Professor of Law, Uni-
Dava
Uid Goldberger. ity 3 l Professor Law. Law, of North Carolina Law School.
University . . Ohio Andrew Popper. Professor of Law, Ameri-
StaCollege Law. can University, Washington College of Law.
Peeter ter Goldberger, Go Professor Law. Law, Vil- Scot Powe, Professor of Law, University of
Lo University rsity School of Law.
l
Louise Graham, Professor of Law, Univer- Texas Law School.
John Quigley, Professor of Law.
sity of Kentucky Law School.
Arthur S. Greenbaum, Professor of Law. Robert Sedler, Professor of Law, Wayne
Ohio State University College of Law. State University Law School.
Linda S. Greene, Professor of Law, Louis Michael Seidman, Professor of Law.
Temple University School of Law. Georgetown University Law School.
Trina Grillo, Professor of Law, Hastings Ed Sherman. Professor of Law. University
College of Law. of Texas Law School.
Daniel Halperin, Professor of Law, Andrew Silverman, Professor of Law. Uni-
Georgetown University Law School. versity of Arizona College of Law.
Charles Halpern, Professor of Law, James Simon. Professor of Law, New York
Georgetown University Law School. Law School.
Joel Handler, Professor of Law, George- Aviam Soifer. Professor of Law, Boston
town University Law School. University Law School.
Michael C. Harper, Professor of Law. Philip Sorensen, Professor of Law, Ohio
Boston University Law School. State University College of Law.
Lawrence Herman, Professor of Law, Ohio Girardeau A. Spann. Professor of Law,
State University College of Law. Georgetown University Law School.
Morton J. Horwitz, Professor of Law. Bar- Roy Spence, Professor of Law. University
vard University Law School. of Arizona College of Law.
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 S1180
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
CONGRESSIONAL RECORD -SENATE February 25, 1982
better to err on the side of maybe not
being constitutional but allegedly pro-
tect the civil liberties of more of the
people involved, those publishing, by
the "reason-to-believe" standard.
I should note to you that none of
the people we are worrying about pro-
tecting agrees with the Senator from
Rhode Island. None of the newspaper
people, none of the people who are the
ones who would be in the third catego-
ry, the good folks, the good guys, the
white-hat folks whom the Senator
from Rhode Island says he believes he
can protect better by the "reason-to-
believe" standard happen to agree
with him.
So in the final analysis I am saying
why not err on the side of sticking
with standard language which we
know in 990%oo percent gets the job
done, and gets the job done with the
fewest constitutional problems.
Let me finish by saying that there is
more to be said, which I will say later.
I yield the floor.
Mr. QUAYLE. Mr. President, today
we take up S. 391, the Intelligence
Identities Protection Act, a bill which
would make criminal the disclosure of
the Identities of covert intelligence of-
ficers and agents. Different penalties
and elements of proof are required de-
pending on whether the defendant is a
present or former employee of the
Government and depending on wheth-
er or not he had authorized access to
classified information.
There is a crying need for this legis.
lation which is long overdue. We
should all be aware of the tragedies
which have occurred in the recent past
as the resuI of published allegations
that a certain individual was a covert
intelligence officer or agent. While I
am certain that there are many exam.
ples, I will mention only two: the
abominable assassination in 1975 of
Richard Welch after being identified
as a CIA officer by Philip Agee in
Counterspy magazine. and the at-
tempted assassination of a U.S. Em-
bassy employee just 48 hours follow-
ing a published allegation by Louis
Wolf in the Covert Action Information
Bulletin that the employee worked for
the CIA.
Mr. President, the destructive effect
of such disclosures must be stopped. I
believe, and the public recognizes, that
there is a compelling need for the leg-
islation we are debating here today.
The controversy and disagreement
about S. 391 really swells around one
section of the bill-section 601(c)
which addresses itself to that class of
persons who identify a covert agent
but who have not had access to classi-
fied information. It Is this section in
which the balance is most precarious
between the undeniable need to pro-
tect our intelligence agents and the
equally compelling need to protect
first amendment rights.
Mr. President, I believe that section
601(c) as reported by the Senate Judi-
ciary Committee maintains this crucial
balance. That section reads:
(c) 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 United States is
taking affirmative measures to conceal such
individual's classified intelligence relation-
ship to the United States, shall be fined not
more than $15,000 or imprisoned not more
than three years, or both.
This language, the so-called intent
language, Is narrowly drawn to define
and punish specific conduct. The
intent language is intended to reach
the activities of the Covert Action In-
formation Bulletin and similar groups,
and it does reach them. I am confident
that section 601(c) as drafted by the
Judiciary Committee will allow suc-
cessful prosecution of those who are
engaged in the destructive activity of
naming names. -
This legislation Is not intended to
chill legitimate debate on intelligence
issues or to censor stories such as
those we read daily in the New York
Times or Washington Post. The Judi-
ciary Committee language does not do
that. In my view, it is constitutional
and effectively carries out the objec-
tive of the legislation which is to deter
individuals who name names with the
intent to harm the United States and
our intelligence agencies.
In order to successfully prosecute
such individuals, S. 391 as passed by
the Judiciary Committee would re-
quire the Government to prove each
of the following elements beyond a
reasonable doubt:
That the disclosure was intentional; That
the covert relationship of the agent to-.the
United States was properly classified infor-
mation and that the defendant knew it was
classified; That the defendant knew that
the Government was taking affirmative
measures to conceal the agent's relationship
to the United States; and
That the disclosure was made as part of
an overall effort to identify and expose
covert agents for the purpose of impairing
or impeding the foreign intelligence activi-
ties of the United States through the mere
fact of such identification and exposure.
This Is a narrowly drawn statute-as
all statutes which touch upon rights
protected by the first amendment
should be-and I believe that its con-
stitutionality will be sustained by the
courts.
I am much less certain, however,
that a bill which incorporates the
original language of section 601(c)
could pass constitutional muster. That
language, which adopts a reason-to-be-
lieve standard rather than the intent
standard drafted by the Judiciary
Committee, is overly broad and could
indeed abridge the exercise of first
amendment rights by legitimate jour-
nalists. Certainly the journalists be-
lieve that it would.
Every major national press group in
the country opposes replacing the
intent standard with the reason-to-be-
lieve standard. Their concerns have
been continually expressed to me in
letters and meetings over the past sev-
eral months. I would like to quote
from a letter signed by the representa-
tives of the Society of Professional
Journalists, the American Newspaper
Publishers Association, the National
Newpapers Association. the Associ-
ation of American Publishers. the Re-
porters Committee for Freedom of the
Press and the National Association of
Broadcasters. One section of their
letter reads:
The "reason to believe" language would.
on its face, apply to a reporter who seeks to
inform Congress and the public about cor-
rupt, illegal. improper or questionable intel-
ligence activities under circumstances where
the identities of present or former covert
agents are necessary to the story. One
major news article which might not have
been published under this formulation
could be the recent revelations about Prank
J. TerpiL The "reason to believe" language
places editors and reporters In the position
.of having to risk a criminal violation or
prosecution in order to publish news reports
which they honestly believe to be in the
public interest. In this sense. we are per-
suaded that the Judiciary Committee ver-
sion of the bill, with its "specific intent"
standard, presents far less serious pre-publi-
cation problems for the press.
My opposition to a "reason-to-be-
lieve" standard, however, has evolved
from additional concerns that go
beyond the constitutional questions
raised by the journalistic and legal
community.
First of all, intent is the appropriate
element for a criminal statute.
"Reason-to-believe" Implies a negli-
gence standard: and this is not a negli-
gence statute.
Second, the objective "reason-to-be-
lieve" standard: "What would a rea-
sonable man believe would be the re-
sults of his actions," raises serious pro-
secutorial questions. For example, it
would force the Government to make
public at the trial more classified in-
formation than it would want to and
certainly more than is required in a
prosecution under the "intent" stand-
ard.
Under a reason-to-believe standard it
suddenly becomes relevant to the de-
fendant's case what effect the disclo-
sure had or would have on certain in-
telligence activities. In other words,
the objective "reasonable man" stand-
ard necessarily forces the Government
to reveal what the agent, whose cover
was blown, was doing in the country to
which he had been assigned. Such in-
formation would not have to be re-
leased under the "intent" standard be-
cause it would be irrelevant. A
"reason-to-believe" standard could.
thus, chill not only legitimate journal.
ism, but also the very prosecutions
which this legislation Is designed to
bring about.
The White House, the Justice De-
partment and the CIA have all stated
that either an "intent" standard or a
"reason-to-believe" standard would be
acceptable to them. They profess to
believe that both are constitutional
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
February 25, 1982 CONGRESSIONAL RECORD-SENATE
and enforceable.' Though they have reason-to-believe language. As the dis-
expressed their preference for the tinguished Senator from Delaware
"reason-to-believe" standard, their top pointed out, 100 constitutional lawyers
priority seems to be the immediate- and professors in this country have
passage of a bill which would end the voiced their concerns about.the prob-
destructive and sinister enterprise of lems of constitutionality.
naming names. - If we really want to have a constitu-
I believe that S. 391 as reported by tional bill, why not go with the intent
the Senate Jildiciary Committee will -language that we know is going to be
accomplish that end, and will do so in constitutional and not take a chance
an effective, efficient, and constitu- that the courts are going to throw the
tional manner, and I urge my col- whole bill out? That is why It is per-
leagues to support It. ' plexing to me to hear the administra-
Mr. President, I want to pay particu- tion say that they prefer the Chafee
lar reference and compliments to my and Denton language to the Biden lan-
distinguished freshman colleague, guage, because there is no doubt that
Senator' DErtToN, who has been very the courts would find intent to be con-
active in this and other matters/He stitutional.
has made an immense contribution to Second, Mr. President, when you are
the committee on which we serve to- dealing with acriminal statute, intent
gether, and he will continue to make Is the proper standard of conduct.
an immense . contribution to this Reason to believe is a negligence
Senate. standard in civil cases. A criminal,stat-
I also want to pay my respects to the ute such as this should have the mini-
distinguished Senator from Rhode mal legal ingredients of what criminal
Island who continues to be one of the acts do constitute, and that is intent.
most respected Members of the Mr. President, again, I commend my
Senate. colleagues. I hope that we proceed
But I must say to these two distin- along the limes of this debate in the
guished gentlemen that I disagree next few days, a line of facts, a line of
with them on this issue. But I do hope reasoning, and not one of simple reac-
that we -pursue this debate Monday tion to motions without a thorough
and Tuesday in the spirit that. the study.
Senator from Rhode Island discussed The debate may be intense at times.
In concluding his remarks. That is what our debate is all about. If
This issue is not an Issue over who we take our time. I am certain that
supports civil rights and who supports the Senate will come down to the lan-
the first amendment. We all do. The guage, and I am hopeful it. will come
issue is not over who supports pros- down to the language, as reported by
code g those who violate a very strict the Senate Judiciary Committee. The
code of conduct, or over who wants to of that committee put in a
have agent .identity legislation passed, members lot of hours. They are the ones that
because all do, put in a lot of work. A majority of that
The e question comes down to what
has concluded that the
statutory language is the preferable committee Intent language is preferable. I am
language t to achieve both of those
goals. hopeful that a majority of this body
There has been a lot of discussion will agree with them.
these last few weeks on televising the I yield the floor.
proceedings of the U.S. Senate. I Mr. DENTON addressed the Chair.
happen to be a supporter of that. But The PRESIDING OFFICER. The
those who argue on the' other side Senator from Alabama.
keep pointing out the difference be- Mr. DENTON. Mr. President, I
tween this body and the other body. thank my distinguished freshman col-
They talk about the U.S. Senate as a league from Indiana and return his
deliberative' body, and they applaud sentiments of respect. I admire the
how the U.S. Senate takes its time on equanimity with which both he' and
very important issues. I hope that the Senator from Delaware have ad-
Members of this distinguished body do dressed the issue. I totally concur that
take their time on this very important we should do so with great delibera-
issue and that we think- it through: I tion.
hope that we do not jump to an emo- It is my fear that the complexity of
tional conclusion, simply choosing the wording , and of some of the
whichever emotion happens to trigger thought patterns applied to the
us the most, whether it is the first rationale are going to defy the com-
amendment rights or the need to pro- prehension of many of our colleagues
tect our Nation's security. who, when they-come in here to vote,
I hope that we think through this do not have much time to deliberate. I
process very clearly and very deliber- hope there is some attendance to the
ately. I hope that we resolve this Issue speakers to the debate which is taking
in the way the legislation was reported place so that our collective judgments
from the Judiciary Committee. This is will be relatively enlightened.
the proper resolution to the issue. I believe the Senator from Delaware,
Basically, Mr. President, the reason- the minority manager, made reference
to-believe language is not preferable to to the President's preference for the
the intent language for two simple Chafee language on the basis of his
reasons. First, I think there is a legiti- being of the same party, but I may
mate constitutional question on the have missed the implication.
S 1181
Mr. BIDEN. If I may, I think he pre-
fers the Chafee language because he
prefers it, but it is also an added incen-
tive that It. is not the language of the
Senator from Delaware.
Mr. DENTON. The point I would
like to make is that the Carter admin-
istration Justice Department also pre-
ferred the Chafee language.
Mr. CHAFEE. Mr. President, the dis-
tinguished Senator from Delaware
always has kernels for thought ? and
cogitation. I have been pondering the
comment he made that the President
was for the Chafee-Jackson language
because I was Republican. All weekend
I am going to be pondering why the
Carter administration was also for this
language. Did they look at me as a po-
tential convert? I cannot fathom in
any way why they too would be sup-
portive of my language. Admiral
Turner was a Democratic appointee, as
head of the CIA. Attorney General
Renfrew was a Democratic appointee
of the Justice Department. I am still
waiting to discover the answer. So I
am looking forward to the debate on
Monday and hope I find out what par-
ticular appeal I might have had to the
Carter administration 2 years ago.
Mr. DENTON. Mr. President, I
would like to go on record in fully sup-
porting the amendment to section
601(c) offered by my friend and distin-
guished colleague from Rhode Island.
I truly regard it as the best and most
appropriate standard by which to
criminalize this statute for naming
names resulting from a study of un-
classified sources.
I must acknowledge before this
body, and before anyone covering this
session, that I am not a lawyer, but I
am supposed to be good at logic. In
fact, I did not have to take a course
once because I answered a question
posed at the beginning of a college
course in logic that the man posed for
over 50 years of teaching. I do think
that I understand enough of the law
to apply logic to this situation.
It seems to me that we have an in-
teresting inversion here, in that we
have Democrats and nominal liberals
propounding an approach which will
be intrusive, one which will involve a
subjective standard, one which the dis-
tinguished Senator from Delaware
proposes..I believe the use of the
"intent" standard will open a Pando-
ra's box in this particular case, which
defeats the objective of avoiding witch
hunts.
We have the reason-to-believe stand-
ard in which the defendant's political
belief, past conduct, critical remarks
about the Government, et cetera, are
all irrelevant. We have a finding by
the committee, the very committee to
which the Senator from Indiana re-
ferred, that: ?
The disclosure of such relationships to un-
authorized persons is detrimental to the
successful and efficient conduct of foreign
Intelligence, counterintelligence, and coun-
terterrorism activities to the United States,
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 S 1182
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
CONGRESSIONAL RECORD - SENATE February 25, 1982
Which tends to support the reason-
to-believe standard as a method of
proof.
But if you go into intent, you get a
chilling effect on expression, because
you then have to start talking about
the man's of woman's past speech or
activities, which would be directly rele-
vant to proving intent.
Clearly, the specific intent standard
creates a far greater potential for In-
trusive investigations into individual
political beliefs. I do not want to be a
witch hunter, but I think that, in this
particular area, you open that Pando-
ra's box. The witch hunt would be un-
dertaken frequently as the only means
of establishing intent, and perhaps
more tragically than that witch hunt-
ing is that the effort to establish
intent would all too frequently be un-
successful. In spite of the fact that the
accused might be guilty. it would be
unsuccessful.
So if we let this erroneous,commit-
tee amendment stand, which stood; on
a vote of 9 to 8 with two administra-
tions who are expert in this. one
Democratic, one Republican, standing
against It with, I have to believe. much
more expertise and learned - fore-
thought about the constitutionality, I
believe that we will not only be tempt-
ing prosecutors into witch hunts, but
we will be letting down those coura-
geous men and women who risk their
lives on a daily. basis to preserve the
security of this country.
It Is the KGB which is laughing at
this debate, and yet it is being con-
ducted on both sides with good will. I
think the statute with the specific
intent standard rather than a reason-
to-believe standard would be counter-
productive. It would purport to pro-
vide a solution to a serious problem of
unauthorized disclosure of intelligence
identities without actually doing so.
It would raise the specter of the in-
trusive techniques and the witch
hunts. i _
Mr. EAST. Mr. President, today we
are considering S. 391, the Intelligence
Identities Protection Act of 1981. This
bill, which has almost 50 cosponsors,
of whom I am proud to be 1, is the
most significant proposal for the
reform and strengthening of the intel-
ligence community that the Senate
has considered this year. I believe that
it Is absolutely essential that we pass a
bill that would protect the classified
identities of American intelligence of-
ficers-not just any bill but an effec-
tive law that would deter the exposure
of their Identities, one that is both
constitutionally sound and will pros-
ecute those who have specialized in
the contemptible and pernicious prac-
tice of systematic exposures. I believe
that until we pass such a law, there Is
little purpose in talking about the
need for a stronger CIA or FBI. In
short, we must put our money where
our mouth is.
I wish particularly to address the
issue of the constitutionality of the
proposed reason to believe, or objec-
tive, standard that was in the original
bill as introduced by the Senator from
Rhode Island. The objective standard
was deleted in the Judiciary Commit-
tee by a single vote and an Intent-or
subjective standard was adopted.
But, Mr. President, It was the objec-
tive standard that I and our 40-odd
colleagues chose to cosponsor when we
endorsed S. 391. It is this standard also
that was overwhelmingly endorsed by
the House of Representatives and is
now in H.R. 4, the House version of 8.
391. Finally, it is the objective stand-
ard that is endorsed by the intelli-
gence community itself-the Central
Intelligence Agency, the Federal
Bureau of Investigationand.the Asso-
ciation of Former Intelligence Offi-
cers..I wish to confine my remarks to a
defense of the reason to believe stand-
ard and to urge my colleagues to sup-
port and endorse It with me.
We are being told, Mr. President,
that the objective standard of the
reason to believe language Is unconsti-
tutional, that it falls to define a bad
purpose, that its enactment would
jeopardize the effectiveness of the bill
and also that it would have a chilling
effect on legitimate discussion of intel-
ligence policy and activities in the
public forum. I would like to address
these charges seriatim, but I would
like first to point out that some. of
them are mutually contradictory.
If reason to believe is unconstitu-
tional. it Would be overturned by the
courts. This is the argument of its op-
ponents, who say that they would like
an effective bill. Yet they also argue
that reason to believe would have a
chilling effect. If it is to be overturned,
then it obviously could not have a
chilling effect. We cannot accept the
mutually exclusive propositions that a
law would be both effective and inef-
fective.
In regard to constitutionality, I
would like to point out that nine Fed-
eral criminal-statutes make use of the
reason to believe standard, and these
Include both the Espionage Act and
Atomic Energy Act. Moreover, five
Federal court cases have upheld the
reason to believe language as constitu-
tional grounds for prosecution. The
most significant of these cases is that
of Gorin v. United States, (312 U.S. 19
(1941)), in which the U.S. Supreme
Court upheld the reason to believe
standard in the Espionage Act of 1917
against the defendant's claim that the
language was vague and indefinite-
precisely the same charge that is being
made today and with .as little founda-
tion.
While it is true, Mr. President, that
the intent standard is also constitu-
tional and that the. Department of
Justice has stated that an intent
standard would be acceptable, the ad-
ministration, the Department of Jus-
tice, and the CIA have been emphatic
that they all prefer the reason-to-be-
lieve standard, that reason to believe is
constitutional and is a more effective
prosecutorial tool.
Why is reason to believe preferable
to intent? In order to convict a defend-
ant under the intent standard, the
burden of proof is far more difficult to
establish and actually requires more
intrusive Investigation than reason to
believe. Proof of intent requires in-
quiry into the state of mind of the de-
fendant before or during the commis-
sion of the offense. In the context of
the intelligence identities bill, it would
also require inquiry into the political
and personal associations of the de-
fendant-whether, for example, he
had been involved with Counterspy or
Covert Action Information Bulletin,
what his attitude toward Intelligence
gathering was, and other beliefs and
associations. Since those who oppose
reason to believe on constitutional and
civil libertarian grounds are concerned
about such intrusive inquiries, I would
think they would prefer the far less
Intrusive standard of reason to believe.
Reason to believe simply means
what any reasonable man would be-
lieve. Thus, use of this standard would
not require any intrusive investigation
into a defendant's background nor the
presentation of evidence concerning
his political and personal associations.
For this reason, it is preferable to the
civil libertarian as well as to the pros-
ecutor.
The argument that reason to believe
would have a chilling effect on the ex-
ercise of first amendment rights and
on discussion of intelligence activities
is also without merit and has been
grossly exaggerated by the opponents
of the bill in the Congress and the
media.
I would point out first that the U.S.
Supreme Court in a 7-to-2 decision this
summer in the case of Haig against
Agee found that:
Agee's disclosures [of covert agents).
among other things. have the declared pur-
pose of obstructing intelligence operations
and the recruiting of intelligence personnel.
They are clearly not protected by the Con-
stitution.
If the disclosure of agents' identities
Is not protected by the Constitution,
then a law punishing disclosure of
Identities cannot have a chilling effect
on the exercise of legitimate rights of
expression. The chilling effect argu-
ment is therefore without foundation.
However, the language of the
reason-to-believe section has been
carefully drafted to avoid interference
with legitimate discussion and investi-
gation. It Is absolutely essential, Mr.
President, to bear in mind that reason
to believe is only one of the six ele-
ments of proof required for conviction
in this bill.
Section 601(c), as originally intro-
duced, contains the reason-to-believe
language. which would make it illegal
for a person to reveal the identity of a
covert agent if that person:
First. Knows that the persons to
whom he reveals the information are
not authorized to receive classified in-
formation:
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
 Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6
February 25, 1982 CONGRESSIONAL RECORD - SENATE
Second. Knows that the information
revealed In fact identifies a covert
agent;,
Third. Intends to disclose informa-
tion that Identifies a covert agent;
Fourth. Knows that the Govern-
ment Is taking affirmative measures to
cpnceal the identity;
Fifth. Engages in "a pattern of activ-
ities intended to identify and expose
covert agents"; and
Sixth. Has reason to believe that
such activities would impair or Impede
the foreign intelligence activities of
the United States.
In sum, before a person can be pros-
ecuted under the reason-to-believe lan-
guage, the prosecutor must prove all
five elements of proof in addition to
the reason to believe element.
Furthermore, one of these elements
is already an intent standard, and it
must be noted that in those parts of
the bill that establish defenses and ex-
ceptions, there are three areas of dis-
closures that are excluded from -any
prosecution, including the revealing of
a covert identity to the House or
Senate Intelligence Committees. This
latter exclusion is intended to allow
for the disclosure to responsible au-
thorities outside the intelligence com-
munity of abuses or unauthorized in-
telligence activities without danger of
prosecution to the disclosing party.
To prosecute a journalist who Inves-
tigates intelligence activities, there-
fore, the prosecutor must show that
every one of the elements applies.
There are few If any legitimate jour-
nalistic investigations in which the re-
vealing of names or identities would be
useful, and it should be noted that the
entire investigation of the Church
committee into CIA activities took
place without a single revelation of a
covert identity. In other words, pre-
venting the disclosure of agents' iden-
tities would not cripple our ability to
learn of or prevent intelligence abuses.
It is almost inconceivable, Mr. Presi-
dent, that legitimate discussion of in-
telligence activities could be prevented
or in any way discouraged by the
reason to believe language that is pro-
posed.
I urge my colleagues to join with me
in supporting the amendment of S. 391
to adopt the reason-to-believe stand.
ard that is so necessary for the protect
tion of our Intelligence agencies and
their personnel, for the security of our
country, and for the strengthening
and reform of the intelligence commu-
nity.
(By request of Mr. DENTON the fol-
lowing statement was ordered to be
printed in the RECORD:)
? Mr. THURMOND. Mr. President,
this proposal to amend S. 391 would
restore the original language of sec-
tion 601(c).
In both versions of the bill, this sec-
tion addresses the situation in which a
person who does not have direct access
to classified information knowingly
identifies individuals as covert agents
of the United States. Beyond this gen-
eral statement, the technical subtle-
ties of the separate versions make
them quite distinct, and because I feel
that the amendment offered by the
distinguished Senator - from Rhode
Island embodies the preferable ver-
sion, I support Its adoption.
The language of the proposed
amendment reflects the requirement
that a putative defendant be involved
in the course of a pattern of activities
which Is intended to identify and
expose covert agents. As defined in
section 606(10) of the bill, this re-
quires a series of acts with a common
purpose or objective. Clearly, then, a
single event of republication, without
a further showing, probably would
amount to a violation of the act.
Moreover,- this amendment man-
dates that it be proven that a putative
defendant, while participating in such
a pattern of activities, possessed a
reason to believe that these activities
would impair or Impede the foreign in-
telligence - activities of this country.
This standard has been the object of
much debate and discussion due to its
so-called reasonable man aspect,
which, It has been said, is a departure
from customary criminal law stand-
ards. However, in the field of espio-
nage laws, this standard is quite con-
sistent.
For example, 18 U.S.C. 793(e) pun-
ishes unauthorized disclosure of na-
tional defense information which the
person "has reason to believe could be
used to the injury of the United States
or to the advantage of any foreign
nation." Similarly, 42 U.S.C. 2274(b)
punishes - disclosure of restricted
atomic energy data "with reason to be-
lieve such data will be utilized to
injure the United States or to secure
an advantage to any foreign nation."
This statute clearly distinguishes
disclosure "with intent to injure the
United States or with intent to secure
an advantage to any foreign nation,"
which is punished under section
2274(a) with more severe penalties.
Therefore, the language of the
amendment is consistent with past leg-
islation where Congress has punished
disclosure without requiring proof of
specific intent, but rather proof that
the reasonable foreseeable result
would be injury to the United States
or advantage to a foreign power.
I believe the amendment of,my dis-
tinguished colleague from Rhode
Island not only Is consistent with prior
law in this area, but also offers greater
protection for the rights of individ-
uals. It must not be forgotten that in
any prosecution under this act each
and every element must be proven
beyond a reasonable doubt to the sat-
isfaction of the triers of fact, not only
as to the requisite belief of the wrong-
doer, but also as to his involvement in
a pattern of activity.
I finally want to remind my fellow
Senators of the words of the Supreme
Court when it decided Haig against
Agee this past June:
S 1183
It is "obvious and unarguable" that no
governmental interest is more compelling
than the security of the Nation. Protection
of the foreign policy of the United States is
a governmental Interest of great impor-
tance, since foreign policy and national se-
curity considerations cannot neatly be com-
partmentalized.
Measures to protect the secrecy of our
Government's foreign intelligence oper-
ations plainly serve tone interests. Thus, in
Snepp against United States, we held that
"ftlhe Government has a compelling inter-
est in protecting both the secrecy of infor-
mation so Important to our national secu-
rity and the appearance of confidentiality
so essential to the effective operation of our
foreign intelligence service." (Citations
omitted.)
I firmly believe that the interest of
our Government would be afforded
greater protection with the addition of
this amendment to this bill, and I urge
its adoption.*
COMMEMORATING ROGER_
WILLTAMS
Mr. STEVENS. Mr. President, I ask
that the Chair lay before the Senate a
message from the House of Repre-
sentatives on Senate Concurrent Reso-
lution 64.
The PRESIDING OFFICER laid
before the. Senate the following mes-
sage from the House of Representa-
tives:
Resolved, That the resolution from the
Senate (S. Con. Res. 64) entitled "Concur-
rent resolution to authorize the Zeta Beta
Tau fraternity to conduct a reception in the
rotunda of the Capitol an March 31, 1982, to
commemorate Roger Williams for his con-
tribution to religious toleration and freedom
in the United States", do pass with the fol-
lowing amendments:
Strike out all after the resolving clause,
and insert: That appropriate ceremonies are
authorized to be conducted in the rotunda
of the Capitol on March 31, 1982, to com-
memorate Roger Williams for his contribu-
tibns to religious toleration and freedom In
the United States. Theme ceremonies shall
be conducted In accordance with conditions
prescribed by the Architect of the Capitol.
Amend the title so as to read: "Concurrent
resolution to authorize ceremonies in the ro-
tunda of the Capitol for March 31. 1982, to
commemorate Roger Williams for his con-
tributions to religious toleration and free-
dom in the United States".
Mr. STEVENS. Mr. President, I
move that the Senate concur in the
House amendments. -
The PRESIDING OFFICER. The
question is on agreeing to the motion.
The motion was agreed to.
The PRESIDING OFFICER. The
question is on agreeing to the concur-
rent resolution.
The concurrent resolution, as
amended, was agreed to.
Mr. STEVENS. Mr. President, I
move to reconsider the vote by which
the concurrent resolution, as amend-
ed, was agreed to.
Mr. BIDEN. Mr. President, I move to
lay that motion on the table.
The motion to lay on. the table was
agreed to.
Approved For Release 2008/12/01: CIA-RDP85-00003R000200030007-6