INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200060010-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 21, 2016
• Document Release Date: September 25, 2008
• Sequence Number: 10
• Publication Date: March 16, 1982
• Content Type: OPEN SOURCE

S 2118
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CONGRESSIONAL RECORD - SENATE March 16, 198,2
ited States Code, appoints the historical antecedents and the full sin-
Coast Guar
HOLLINGS) as members of the
Board of Visitors.
dispute it.
In taking this position, I rely in part
on the majority opinion in Haig
against Agee, which was decided by
the Supreme Court on June 29 of last
year. In commenting on the activities
of Philip Agee-activities which also
would be banned by the bill presently
under consideration, Agee having had
authorized access-the Court said:
Agee's disclosures, among other things,
have the declared purpose of obstructing in-
telligence operations and the recruiting of
intelligence personnel. They are clearly not
protected by the Constitution. The mere
fact that Agee is also engaged in criticism of
the Government does not render his con-
duct beyond the reach of law.
INTELLIGENCE IDENTITIES
PROTECTION ACT OF 1981
The Senate continued with the con-
sideration of S. 391.-
Mr. MOYNIHAN. Mr. President, I
the Intelligence
391
rise to support S
,
.
Identities Protection Act of 1981, as Nevertheless, the process of striking
ted b the Committee on the Ju- a balance between the Government's
In reporting the Intelligence Reform
Act 2 years ago, the Select Committee
on Intelligence explained its legislative
purpose. The report stated:
It is the purpose of the committee ' ? ? to
preclude the inference and exclude the pos-
sibility that casual discussion, political
debate, the journalistic pursuit of a story on
intelligence or the disclosure of illegality or
impropriety in Government will be chilled
by the enactment of the bill.
I grant that it is one thing for a com-
mittee to say this and another thing to
insure that it will be the case. But it is
in any event within our power to do
more than to say we have no intent to
chill, we have no intent in any way to
inhibit the legitimate activities of the
press and the necessary and tradition-
al purposes of political debate.
And the committee went on to state:
repor y
diciary. legitimate need to protect its intelli- The standard adopted ? ? ? applies crimi-
On, January 24, 1980, I introduced gence activities and the right of the nal penalties only in very limited circum-
the Intelligence Reform Act of 1980, press to report what it is able to learn stances deter those who make it their
one of whose sections was similar to of the workings of Government has business fer. t At out the ansame d nd publish
time it the
does he en-
the Intelligence Identities Protection been a long and difficult one. tities of agents. to
affect the first amendment rights of not
Act we are considering today. I believe that the Judiciary Commit- who disclose the identities of agents as an
At that time, I explained the pur- tee has struck a proper balance, surely integral part of another enterprise such as
pose of the relevant section as follows: the best balance available to us, and news media reporting of intelligence failures
? In order to provide greater security for that its version of the bill should be or abuses, academic studies of U.B. Govern.
those who undertake intelligence work, our accepted by the Senate. ment policies and programs, or a private or-
proposal will make criminally liable any in- As reported by the committee, S. 391 ganization's enforcement of its internal
dividual who discloses the name of an intel- would impose a criminal penalty on rules.
ligence operative, if he has learned the persons who disclose a covert agent's The specific intent standard adopted
name as a result of his authorized access to
identity in the "course of an effort to by the Judiciary Committee consti-
such information, or if he discloses it with nts with
the intent of impairing or impeding the for. identify and expose covert age tutes in my judgment, constituted
eign intelligence activities of the United intent to impair or impede the foreign then and constitutes now, a more accu-
States. intelligence activities of the United rate statutory expression of the Intel-
At the time the Intelligence Reform States by the fact of such identifica- ligence Committee's objectives. In ad-
Act was introduced, the cosponsors tion and exposure." dition, it is acceptable to the adminis-
and I recognized that the part of the An amendment offered by my distin- tration. This surely must be a matter
bill which dealt with disclosures by guished colleague and friend, the Sen- that carries weight in this Chamber,
outsiders-which is to say, by those ator from Rhode Island, would strike as we are engaged in an effort to sup-
who had not had authorized access to the specific intent element and substi- port the objectives of this administra-
the identifying Information-posed a tute what in the judgment of the Sen- tion as we were the objectives of the
substantial constitutional problem. ator from New York is the less strin- preceding one.
The bill had to be drafted so as to be gent requirement of proof of reason to, In this regard, in April 1981, the Di-
respectful of the freedom of the press believe that the conduct would cause rector of Central Intelligence, the
enshrined in the first amendment, harm to U.S. Intelligence activities. Honorable William J. Casey, wrote to
and, at the same time, to be usable Here, Mr. President, I believe we the House Permanent Select Commit-
against those who, in effect, had set speak from a large and ancient corpus tee on Intelligence that the Central
up private counterintelligence oper- of common law, statutory law, and Intelligence Agency "would support
ations for the, purpose of identifying case law that reason to believe re- enactment" of either version. Now I
and exposing U.S. intelligence opera- quires a lesser standard of proof than would hope o would be version. to in
tives, and clearly thereby impairing or intent, this would hope it
has Direc-
impeding the foreign intelligence ac- It is the general case, as I under- tor of CCentral hamber r In that the present to in
tivities of the United States. stand, and I do not speak here as a t that ether version is accept-
Committee the past 2 years, the Select legal scholar, that in matters of large in n writing w t tthat either either
sionli be ept-
Committee on Intelligence, on which I consequence intent is the characteris- able, , t It either
then our responsibility sup-
now serve as vice chairman, and the tic standard against which proof must ported. better of the two.
Committee on the Judiciary have be offered by the State in criminal choose
In May the , before the of t the t Subcommit-
sents with this problem, which pre- trials. tee on Security and Terrorism of the
sents ambiguities and difficulties to all The amendment offered by the Sen- Senate Committee on the Judiciary,
of us in this Chamber. ator from Rhode Island also contains a
Some have tried to argue that this course of conduct requirement, called Richard Willard, then counsel to the
problem is insoluble and that Congress a "pattern of activities", which is es- Attorney General for intelligence
has no choice but to allow persons sentially the same as a "course of policy, testified
woud support that the either Department
t
such as the publishers of the Covert effort". p Justice "would be a great Action Information Bulletin to contin- The purposes sought by the several and of rd that that both over the present rent im-
ue itheir private intelligence operations versions over the past several years and both would be held constitutional
against the United States and to con- have remained the same. Each succes- and would o enforceable."
tinue their practice, as they put it, of sive change has represented an at-
"naming names," for the explicit pur- tempt to be more precise in codifying I emphasize that latter point. The
pose of impeding our intelligence capa- these purposes in the most satisfac- Department of Justice, the counsel to
bilities. tory legal language given the constitu- the Attorney General for Intelligence
I rec_ongnize the weight of this argu- tional dilemma which I described at policy, says both would be a great im-
ment and certainly acknowledge its the outset of these remarks. provement over the present situation,
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S 2120
CONGRESSIONAL RECORD - SENATE March 16, 1982
province of press freedom. It would,
Mr. President, encroach on the prov-
ince of press freedom. It would permit
a prosecutor to seek an indictment and
a jury to convict on the basis of proof
that damage to intelligence operations
was the reasonably foreseeable conse-
quence of the journalist's disclosure of
names, when, indeed, it was a foresee-
able consequence of the journalist's
action, but not his intent.
The proponents of the amendment
before us state that the reason-to-be-
lieve standard establishes an objective
standards which, in effect, would
permit the prosecutor and the jury to
make a judgment of what damage a
defendant reasonably foresaw in the
light of what they, the prosecutor and
jury, think most reasonable men
would foresee in the same circum-
stances. In other words, it could poten-
tially allow conviction even if the jury
found that the defendant's bona fide
conscious purpose was not to harm in-
telligence activities but to expose
wrongdoing or to report on other im-
portant issues.
I put this matter again: Under the
reason-to-believe standard a jury could
find that a defendant's bona fide con-
scious purpose was not to harm intelli-
gence activities but rather to expose
wrongdoing. or achieve other legiti-
mate purposes, and yet still, his ac-
tions having had the probable conse-
quence in the jury's judgment of im-
pairing or impeding, it could find such
a person guilty.
This would profoundly subvert the
purposes of our legislation.
I understand the desire of the propo-
nents that the reason-to-believe test
would facilitate prosecution of those
who engage in the business of naming
the names of our Nation's covert
agents.
There are not that many. They liter-
ally could be counted on the fingers of
one hand. This is not a large industry
in the United States. It might be in
the Kremlin; I am sure it is. But we
recognize we deal with only a very few
cases, and I would hope we would deal
with even fewer as the Nation comes
to its senses in these matters.
Even so, this vague standard would
vest far too much discretion in the
hands of prosecutors which would un-
dermine the stated objective of the
statute which is that it not be used to
chill legitimate journalism.
The word "chill" is in itself an inex-
act term, and yet it refers to a real
phenomenon, the prospect of embroil-
ment with the Government, and of
being faced with charges which cannot
but cause concern to anyone against
whom they are brought, no matter
what the outcome of the action.
There can be such events. There are.
In some cases we have statutes intend-
ed to chill certain behavior because we
wish to do that. We do not wish that
here. We are dealing with constitu-
tional rights, and we are dealing with
an American interest in a free and in-
quiring and, if need be, cantankerous
.press.
Consider for a moment how a pros-
ecutor might employ the reason-to-be-
lieve standard. In his October 6, 1981,
testimony before the Subcommittee
on Security and Terrorism of the Judi-
ciary Committee, the Counsel to the
Attorney General for Intelligence
Policy, Mr. Willard, explained the ad-
ministration's preference for the
standard.
The problem, Mr. Willard said, is
that:
Senator Biden's (specific intent) approach
would invite evasion of the will because
people . like [the publisher of Covert
Action Information Bulletin] and others
would say, "Well, my intent was to help in-
telligence activities by disclosing unsavory
activities," and that would give them a de-
fense that they would seek to use. That is
why we felt the objective reason to believe
standard which Senator Chafee introduced
to be better.
Listen to that. The implication of
this analysis must be disconcerting to
this body. The arm of Government,
the Department of Justice, which will
enforce this law seems to be saying
that it wishes to minimize the possibil-
ity of a successful defense based on a
claim that the person was intending to
inform the public of wrongdoing or
abuse by intelligence agencies.
Can we go over this once more? Mr.
Willard, counsel to the Attorney Gen-
eral, said, If we have this intent stand-
ard, anyone we bring into court can
simply say, "My intentions were credi-
ble," and this could prove a successful
defense.
That very proposition reversed says
that the Justice Department would
wish to minimize the possibility of a
successful defense based on a claim
that the disclosure was intended to
inform the public about wrongdoing or
abuse by substituting the reason to be-
lieve standard for the intent standard.
Under the "preferred" standard, you
might say, the prosecutors would seek,
and the court might well issue,
instructions to the jury that they
could convict should they find that
such ha8M was the reasonably foresee-
able consequence of the defendant's
conduct, even if the defendant did not
intend that result.
I have even had responsible editors
in our country say to me, "In the
name of all that is holy, can you not
conceive a situation where indeed we
would publish names of covert agents
knowing that it would impair or
impede intelligency activities in order
to inform the public of conduct we
judged to'be profoundly against the
interests of the United States?"
I am vaguely aware from the Sunday
morning book reviews that the newest
blockbuster novel out of Washington
has to do with a former CIA man who
is advised the President is going crazy,
or is himself going crazy, or in any
event someone is about to start a third
world war.
Suppose this case were noticed by
the Associated Press. Would it not be
wise and salutary for the Associated
Press to so inform us? Alas, there are
few things that can be imagined by
novelists that do not happen in Wash
ington, and fewer and fewer that can
be imagined that have not, in fact, al-
ready happened.
It is disconcerting to have the Jus-
tice Department suggest that it
wanted a standard which would make
convictions easier and would make
convictions possible where intent to
harm did not exist, but only a reason
to foresee harm did exist.
To be sure, this standard would
make it easier to impose criminal pen-
alties on the persons in the business of
naming names, but it also places at
greater risk of prosecution the legiti-
mate journalist who discloses identi-
ties of covert agents in order to expose
wrongdoing, in order to do his duty as
it would be understood in his profes-
sion and as it is protected by the Con-
stitution.
Not for nothing was the First
Amendment to the Constitution di-
rected to this freedom for all of us.
I also find disquieting the Justice
Department's suggestion that the
reason to believe standard constitutes
a "negligence" standard.
On May 8, 1981, Mr. Willard, speak-
ing for the Department, wrote a letter
to the House Intelligence Committee
which stated that the reason to be-
lieve language would permit prosecu-
tion of a person who "can be shown
either to have known of, or disregard-
ed, the risk of harm, or to have been
negligent in overlooking the evident
consequences of his actions for U.S.
foreign intelligence activities."
When have we begun to consider it
reasonable to send a journalist to
prison because he or she was negli-
gent? Negligent? What are the stand-
ards for negligence? It is a vague term
and it is usually employed with respect
to misdemeanors and small matters.
But in espionage matters, where the
U.S. Government declares that a
person has damaged the security of
this country, should it be able to
obtain a conviction on the grounds
that he was negligent with respect to
the spelling of names or the checking
of dates or the handicraft of journal-
ism? Espionage is not a matter to turn
on negligence and neither is its near
cousin with which we deal. To send
someone to prison for having been
negligent with regard to these matters
would be an abuse of power by the Ex-
ecutive and to make it possible would
be a great failing in legislation by the
Senate.
With an interpretation so expansive
as to include even negligence, it is no
wonder the Attorney General prefers
the reason to believe standard, and all
the more reason for us to reject it.
While it is admittedly unclear what
specific meaning the proponents of
the amendment would impart to the.
reason to believe standard, I do not be-
lieve they would agree with the De- -
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March 16, 198,2 CONGRESSIONAL. RECORD -- SENATE S 2121
partment of Justice. I note that, In least of all the sponsors of the amend- when he sat down with that reporter
support of his amendment, the Sena- ment before us, to penalize or discour- to determine whether or not the New
tor from Rhode Island, my good friend age the kind of news reporting that oc- York Times should have reason to be-
a~d colleague on the Intelligence curred in the Wilson-Terpil case. But sieve that this would, in fact, impair or
Committee, cited Gorin against United again, the Department of Justice impede the intelligence activities of
States. That case held that reason to would give no. comfort to, a newsman the United States of America?
believe, when used in the espionage who wishes to pursue that kind of Mr. MOYNIHAN. I think the editor
statutes which prohibit the gathering story, if it involved, as it well might, of the New York Times would ask him
and communicating of national de- current undercover employees of the himself whether that reporter was
fense information with intent or Central Intelligence Agency. married and how many children he
reason to believe that it Is-to be used During the hearing on May 8, 1981, had.
to injure the United States or give 'ad before the Committee on Security and Mr. BIDEN. I think the Senator is
vantage to a foreign nation, requires a Terrorism, Senator Bmzx-Senator probably right and I think that is
showing of bad faith, or, in the lan- BIDEN, here on the floor, valiant and what we call in the business a chilling
guage of lawyers, scienter, which is to indefatigable in these matters as effect.
say guilty knowledge, a much higher always-asked Mr. Willard of the De- Mr. MOYNIHAN. I think that would
standard than negligence. partment of Justice whether a jour- be a chilling factor.
However, the 'Gorin case deals with nalist who engages for 3 years in a pat-
statutes which are considered by lead- tern of activity intended to identify The Senator, has visited nuclear es-
ing constitutional scholars to be inap- double agents or moles in the CIA, and tablishments where one may be ex-
plicable to information gathering, writes articles naming such person or posed to some radiation. He is familiar
public speech, and publication which persons, would have reason to believe with that little badge you get when
is pursuant to a good faith purpose to that his activities would impair intelli. You go in and, as you go out, they
criticize Government policy or to gence activities. He is informing the check that little badge and see if you
inform the public. public that there is a spy in the CIA have had a dose of radiation above an
Another espionage provision with a who is on the CIA payroll. acceptable level while you are in the
reason to believe standard which was Suppose that, by some happy cir- plant. I can see, in newsrooms atAhhe
cited by the distinguished Senator cumstance of diligence or good fortune end of the day, they will check wheth-
from Rhode Island was held by the or overheard conversation, a newspa- er you might have committed a crime
district court decision in the Pentagon perman learns of that spy and reports that day. And maybe they will say,
papers case to be inapplicable to publi- it. Senator Bmzx asked, would that In. "We'll allow you a certain level of
cation activities. This is in United dicate reason to believe that his activi- dosage over the year. You must not ac-
States against New York Times Co. ties would impair intelligence perform- quire more than five probable crimes
I repeat, Mr. President, the espio- ance, perhaps because it would give or you are risking causing the legal de-
nage statutes which the courts have the agency a less-than-complete repu- partment too much expense."
held to require only guilty knowledge tation for security? After-all, even the New York Times
of the consequence of events have Mr. Willard equivocated. He equivo- can only afford to defend so many re-
been held not applicable to publics- cated. Be did not say, "No, of course porters in a year. It costs money. The
tions. In contrast to the espionage not." U.S. Government can destroy a news-
laws, which focus on the clandestine He suggested, on the one hand, that paper by suing it,
transfer of our Nation's secrets to for- exposing double agents might assist I say this to the Senator. The U.S.
eign nations, the provisions of the bill American intelligence, but on the Government has endless resources in
we are now considering would express- other hand, it is "hard to predict from the courtrooms. They are the U.S.
ly criminalize the publication of infor- such a bare hypothesis exactly how Government's courtrooms, as a matter
mation which may be drawn entirely the standard would be applied." But of fact. They can destroy a journal by
from unclassified sources. We make it he acknowledged that there is at least suing it.
possible for information drawn from a "question" whether a crime would Only a few newspapers in this coun-
unclassified sources to be the cause of have been committed. But here we are, try can sustain the kinds of costs the
criminal sanctions. Mr. President, already the Depart- New York Times incurred in New
In addition, Mr. President, this in- ment of Justice is saying, "let us see, Jersey when a journalist refused to
formation concerns not sensitive tech- is there a question here that a crime
nical
nical secrets or policy secrets, if there has been committed?" When, up until. show notes in a murder case-hun-
are
such, but the identities of persons the day of this testimony, I do not of thousands of d were in-
are the instruments for carrying think. there was an American alive volved. Not many new spars spapers could
out such policies. Their conduct and, who would have thought such an act afford that. And none can indefinitely.
at times, their identities may be of im- might be a crime. First, you sue the newspaperman,
portance to public debate. I submit May I ask, Mr. President, if, prior to then you sue the copy editor, then you
that a reason to believe standard has May 8, 1981, anyone would have sue the city night editor, then you sue
no place in such a law. Even if this thought for a moment that it was a the linotypers-just consider what a
standard were interpreted to require crime for a journalist to report that government intent on impairing or im-
scienter or guilty knowledge, as it there was a KGB agent in the employ peding the freedom of the press could
were, or knowledge of probable of the National Security Agency? do with the standard Mr. Willard sug-
damage to intelligence activities, it Why, you would say, in such matters gests.
could still permit prosecution and con- Pulitzer prizes are won and the pub- Mr. President, I have talked long
viction of a journalist who disclosed lic's thanks are deeply forthcoming. enough in this matter.. But I want to
agent identities for the bona fide pur- Mr. BIDEN. Will the Senator yield conclude with a simple, final refer-
pose of disclosing wrongdoing or dis- for a brief question? ence.
cussing other issues of public impor- Mr. MOYNIHAN. I am happy to Mr. President, one of our colleagues,
tance. I suggest to my colleagues that yield. I regret to say-because he knows of
this standard could easily be turned Mr. BIDEN. If the Justice Depart- my high personal regard for him-has
into an instrument of mischief or ment, Mr. Willard in particular, a man not shared my concerns. at all in this
worse by a government which may schooled in the law, helping to write matter. The distinguished Senator
Seek to suppress any news stories in the law in this case, was not sure from North Carolina expressed his
which covert agents are identified, whether or not the reporter in that opinion as follows:
however innocent or even laudatory hypothetical case would. in fact, be There is no national interest of greater
the intentions. guilty of a crime, what does the Sena- importance than national security. What.
'Mr. President, I do not believe it is tor from New York think the editor of ever intrusion there asay be upon first
,the desire. of anybody in this body, the New York Times would have to do amendment rights here-
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S2122
CONGRESSIONAL RECORD - SENATE March 16, 1982
I interpolate now: as the result of
the amendment before the Senate.
They are modest and gentle and consist-
ent with the overriding need to protect the
great national security interests.
Mr. President, in the hysteria of
wartime, we have made mistakes in
this Chamber, but we never pro-
nounced them to be intrusions upon
constitutional rights. In the hysteria
of wartime, it may be that we have in,
truded on constitutional rights, or in
the hysteria of the cold war, it maybe
that we have intruded on constitution-
al rights. But we have never knowingly
and avowedly done so.
I Inquire: What is a gentle intrusion,
a modest intrusion?
I am reminded of Dr. Swift's modest
proposal for resolving the difficulties
of the then troubled state of Ireland,
as we approach the "Patron's Day."
It will be recalled that there was
much famine in the land. There was
much hunger. There was great dissat-
isfaction and distress, as well as over-
poWilation.
Dean Swift, in a volume entitled "A
Modest Proposal"-it was hardly more
than a pamphlet-said, "Why not
butcher the babies and eat them?" He
suggested fricaseeing, baking, roasting,
frying. He was not sufficiently ad-
vanced to be aware of all the vitamins,
nutrients, and proteins that could be
gained thereby; but he thought that a
modest amount of cannibalism would
be conducive to the well-being of the
people of Ireland.
Are we to suggest that we will have
only a modest intrusion into constitu-
tional rights? I think not.
Mr. President, I respectfully suggest
that we cannot blithely dismiss this
amendment as only a modest and
gentle intrusion on the first amend-
ment rights of the press.
When the first amendment is threat-
ened, so indeed is our national secu-
rity.
The late and beloved Judge Murray
Gurfein reminded us of this in his
1971 decision denying the Government
an order enjoining the publication of
the Pentagon papers. I read from his
decision:
The security of the Nation is not at the
ramparts alone. Security also lies in the
value of our free institutions. A cantanker-
ous press, an obstinate press, an ubiquitous
press must be suffered by those in authority
in order to preserve the even greater values
of freedom of expression and the right of
the people to know.
I cannot suppose there could be any
finer summation of this argument save
perhaps the words of Thomas Jeffer-
son, who wrote:
The basis of our governments being the
opinion of the people, the very first object
should be to keep that right; and were it left
to me to decide whether we should have a
government without newspapers, or newspa-
pers without a government, I should not
hesitate to prefer the latter.
Thus, in the spirit of the courts and
the spirit of Thomas Jefferson I plead
with my colleagues not to accept the
amendment before us but to abide by
the wise counsel and decision of the
Committee on the Judiciary.
Mr. President, I thank the Chair for
its great patience during this lengthy
discourse.
Mr. CHAFES: Mr. President, that
was an extremely eloquent speech by
the distinguished Senator from New
York. It obviously incorporated con-
siderable thought and conviction on
the part of the Senator, who has de-
voted many years to the areas he ad-
dressed. As he mentioned, he is a
member of the Senate Intelligence
Committee. He is the vice chairman,
and he has acted as chairman when
the distinguished chairman Senator
GOLDWATER, was having a hip oper-
ation.
The only problem I have with the
presentation of the Senator from New
York, particularly in his final quota-
tions, is that a listener cannot help but
conclude that there should be no legis-
lation in this field.
It is true that both versions are con-
sidered unconstitutional and objec-
tionable by those who profess to be
principally concerned with the protec-
tion of the press.
For example, the New York Times,
which the distinguished Senator men-
tioned frequently, has consistently edi-
torialized against both versions. They
do say that, faced by the possibility of
one or the other, they would prefer
the committee versions. But this pref-
erence is totally unenthusiastic.
I read now from an article in the
New York Times, in which the colum-
nist, Mr. Stuart Taylor, Jr., wrote:
More than 100 scholars signed a letter in
the fall of 1980 denouncing the Chafee ver-
sion of the bill as unconstitutional.
He goes on to say, in discussing both
bills:
Both bills would permit prosecution of
journalists and others ...
The article concludes:
"Because there is a steamroller to pass a
bill, we are asking the Senators to pass the
least damaging bill," Jerry Berman, legisla-
tive counsel for the American Civil Liberties
Union, said today. But he added that "we
are prepared to challenge this bill in court,"
whether or not it includes the "intent" lan-
guage.
So, editorial after editorial in the
press-and we have submitted them
for the record-has little to say in
favor of any legislation. In other
words, the view of the press is that it
is unfortunate these publications, such
as the "Covert Action Information Bul-
letin" are "naming names," but that is
one of the prices of a free society.
Maybe Richard Welch is murdered on
assignment in Athens. Maybe the
Kinsman home is shot up in Jamaica.
Maybe the careers of agents or alleged
agents of the CIA throughout the
world are ruined. But that is life. We
cannot help that in a free society, and
we should not have any type of legisla-
tion such as that proposed-subsection
601(c)-in both bills.
since December 16, to speak, so I will
be brief.
The Senator from New York spoke .
of both versions being acceptable to
the CIA. That is true. However, Mr.
Casey has made it very clear, in letters
to this committee, to me, and to dar-
ious Senators, that he believes that
the best version is the so-called
Chafee-Jackson version. This will best
accomplish the job according to Mr.
Casey.
I refer to a letter to me dated March
12 of this year, from Mr. Casey, in
which he wrote:
I believe it is important that you have the
benefit of my position. Certainly the Judici-
ary Committee version of the Bill would be
preferable to no legislation at all-
No legislation-which is the position
of the news media.
but is should be clear that the Intelligence
Community firmly supports the Attorney
General and the President in their belief
that the version of subsection 601(c) passed
by the House of Representatives and em-
bodied in the Chafee-Jackson amendment
to S. 391 is, as President Reagan put it in
his letter of 3 February 1982 to the Majority
and Minority Leaders of the Senate, "far
more likely to result in an effective law." I
believe Senator Specter fully understands
that this is my position.
Sincerely,
WILLIAM J. CASEY.
The next point that the Senator
made dealt with the subject of negli-
gence, and it was his suggestion that
what we have adopted in this legisla-
tion is a negligence standard. He is
horrified or astonished that for the
first time, as he indicates, one can be
prosecuted criminally for something
that is considered negligence.
I wish to discuss that from the point
of view of the markup that took place
in the Senate Judiciary Committee
last October, October 6, in which this
issue of negligence was raised by the
Senator from Vermont (Mr. LEAHY).
He directed his question to Richard
Willard, the Attorney General's coun-
sel for intelligence policy.
Senator LEAHY said, "Can you tell
us, is this or is this not a negligence
standard?"
The response by Mr. Willard, who I
mentioned was the Justice Depart-
ment's expert, was as follows:
If the reason to believe standard stood by
itself, if you only had the reason to believe
standard and it were the only element of
this offense I believe you are correct, that it
would in many ways resemble negligence.
However, as Senator Heflin pointed out
there are so many elements of proof in this
sc;ction as it exists that there is no way
someone could accidentally or negligently
violate the law. It would be very difficult to
prosecute. There are other elements, includ-
ing one of specific intent, intended to identi-
fy or expose covert agents which exist in
Senator Chafee's bill. Therefore, while that
one provision taken in isolation would be
sort of a negligence standard, it is accompa-
nied by five other elements which involve
actual knowledge and specific intent.
I know that the Senator from Wash- So I believe the negligence argument
ington has been waiting patiently, is demolished.
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1. briefly wish to address the matter
of intent. Is the intent standard the
best one? Is the intent standard the
standard that will most likely protect
those inadvertent disclosures in the
press that the Senator from New York
was concerned about?
What we address now are the state-
ments of Mr. Keuch. Mr. Keuch was
the Associate Deputy Attorney Gener-
al under the prior administration. This
is what he said about the specific
intent language, the language that is
in the committee version before us
now.
By the way, in that version it was
501(b); now it is 601(c):
Section 501(b)'s specific intent require-
ment that an individual must have acted
with "intent to impair or impede the foreign
intelligence activities of the United States"
and that such intent cannot be inferred
from the act of disclosure alone is not a
fully adequate way of narrowing the provi-
sion, either in serving First Amendment
values or in facilitating effective prosecu-
tions.
The specific intent requirement may itself
have the effect of additionally chilling le-
gitimate critique and debate on CIA policy
because general criticism of the intelligence
community could seem to corroborate an
intent to impair or impede.
The point Mr. Keuch is stressing
there is when you have an overall
criticism of the intelligence communi-
ty after which you name a name,
intent is inferred. You meant to be
critical of the agency and disclosed in
order to impair or impede intelligence
activities.
Mr. Keuch goes on:
A mainstream Journalist Who occasionally
writes stories based on public information
concerning which foreign leaders are
thought to have intelligence relationships
with the United States may fear that and
other stories by him critical of the CIA will
be taken as evidence of an intent to impede
foreign intelligence activities.
Speculation and debate concerning intelli-
gence activity and actors would be seeming-
ly more hazardous if one had ever taken a
general position critical of the conduct of
our covert foreign intelligence policy.
Taking the problem from the other direc-
tion-
Mr. Keuch continues:
since any past or present criticism of the
CIA might provide the something extra
beyond the act of disclosure to prove specif-
ic intent, citizens may be unwilling to
hazard a speculative discussion of covert in-
telligence policy for fear they will unwit-
tingly name an intelligence source correctly.
What Mr. Keuch is saying here is
that your overall criticism of the intel-
ligence community and then your in-
advertent disclosure of a name may be
used to infer intent that you are out to
impair and, impede the intelligence ac-
tivities of the United States.
Mr. Keuch's statement I commend
do each of you, and I will briefly quote
a little more here:
The specific intent requirement ..
Mr. Keuch continues:
also can hamper . effective enforce-
ment ...
Now he is on the other side' of the
coin. He is looking at it from the en.
forcement side-
. by creating a difficult jury question.
Any person willing to gamble on the out-
come of a prosecution can claim to a jury
that his intent was to inform the American
people of intelligence activities he believed
to be improper or unnecessary rather than
to disrupt successful intelligence gathering;
the government may often find it difficult
to convince a Jury beyond a reasonable
doubt that there was intent to impede in
light of such a claim.
Mr. President, I shall address that
very point because it seemed to me
that the Senator from New York was
dismissing as ridiculous the fact that
the publishers of bulletins such as
Covert Action Information Bulletin
could in any way ever claim that it was
their intent to improve the intelli-
gence activities of the United States.
Yet let us turn to the testimony before
the House Select Committee dh Intel-
ligence last year by an editor of the
Covert Action Information Bulletin,
Mr. William Schaap. Now this is what
he said. This is what apparently -he
strongly believes. Obviously this would
be his defense if accused:
Our publication ... Is devoted to expos-
ing what we view as the abuses of the West-
ern intelligence agencies primarily though
not exclusively the CIA, and to expose the
people responsible for those abuses.
We believe the best thing for the security
and well being of the United States would
be to limit severely, if not abolish the CIA.
This is his view.
And then he goes on:
Our intent ...
This is his intent-
... both in exposing the abuses of intelli-
gence 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 in-
telligence also seems likely. Patriotism is to
some extent in the eyes of the beholder.
This is their defense.
And so to suggest that it is prepos-
terous that such a claim could be
made is in my Judgment obvious. This
is not in my Judgment alone but in the
burden of proof here; in the state-
ments of those handful of people, as
the Senator from New York discussed,
in their very view this is what they be-
lieved. This is their intent.
The Senator also suggested that the
reason to believe standard which
exists in current statutes in section 18
of the code does not apply to speech or
publication.
That is not entirely accurate.
As we pointed out yesterday, in title
18, United States Code, and in title 42,
United States Code, there are a series
of acts which are forbidden in which
the proof of the Government is based
upon the reason to believe standard.
Now let us see if any of them apply
to speech. I refer you to 42 U.S.C. 2274
dealing with communication of re-
stricted data. It talks about anyone
who communicates. transmits, or dis-
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closes. Disclosing obviously covers
speech or publication.
In section (b) it goes on to say, "at-
tempts or conspires to do any of the
foregoing, with reason to believe."
So there it seems to me is an obvious
case where reason to believe applies to
a disclosure, be it by publication or by
speech offense.
Finally, Mr. President, I refer to the
mole argument. That is an argument
that Senator Bn)sri has raised, the dis-
tinguished Senator from Delaware,
several times. The question is, Under
my language, could you disclose the
existence of a mole in the CIA?
First of all, the mole, a mole within
the CIA would not necessarily be a
covert agent within the definition of
the term as we have it in the act. The
famous moles who have existed, such
as Mr. Philby in England, worked for
the intelligence community. Everyone
knew this. He was overt.
If one of those employees of our CIA
was involved, he might also be an
overt CIA employee. If we do not
know he existed, and-he was a covert
agent, it might well be that we would
have to display caution. This is not be.
cause of the danger of prosecution but
because in many of the situations the
so-called mole has been doubled.
For those who indicate the despair
over the effect of this act, let me just
say that in nearly every instance-the
Wilson case, the Terpil case, the clear-
cut cases where they were not covert
agents-these men were not employees
of the CIA. That is acknowledged.
That was acknowledged by the CIA.
They are no longer employees. They
are former employees.
For someone. to suggest that disclo-
sures of their wrongdoing could not
take place is really to drag a red her-
ring across a very important discussion
that should be devoted to the merits
of the legislation before us.
So, Mr. President, this is not some-
thing the Republicans have dredged
up. This legislation has the support
not only of this administration, of the
current Director of the CIA, but of the
prior Director of the CIA, the prior
Attorney General, the prior Justice
Department, under a completely dif-
ferent administration of a completely
different party.
Both of those administrations, both
of those Attorneys General of the De-
partment of Justice, both of those Di-
rectors of the CIA have pleaded with
us to pass the amendment that is on
the floor of the Senate today and up
for consideration. They all want the
Chafee-Jackson language.
So, Mr. President, I do hope my col-
leagues will support the amendment
that is before us.
Mr. President, I suggest the absence
of a quorum.
The - PRESIDING OFFICER (Mr.
Towxi). The clerk will call the roll.
The legislative clerk proceeded to
call the roll.
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Mr. BIDEN. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
MURKOWSKI). Without objection, it is
so ordered.
Mr. BIDEN. Mr. President, while we
are waiting for one of our colleagues
to come to speak on this Chafee
amendment, I would like to raise a
couple of points and hopefully clarify
the record. These are not major issues
but they do, in a cumulative sense,
impact upon some of the arguments
made thus far on this names of agents
bill and particularly the Chafee
amendment.
One of the points which has been
made by my distinguished colleague
from Rhode Island concerns the intent
language, presently in the Senate bill,
which Senator CHAFe is attempting to
remove. It is that if that language
passes the Senate- it will be used as an
excuse for a delay and a conference
will never be called by the House side.
The House has already passed a bill
which incorporates the direction of
the Senator from Rhode Island. If the
version I an supporting passes the
Senate, the Senator from Rhode
Island, though not saying straight out,
implies, in effect, that we will not have
a bill or it will be hard to get a bill.
I wish to read into the RECORD at
this point a letter from the chairman
of the House Permanent Select Com-
mittee on Intelligence, Mr. EDWARD P.
BOLAND.
It reads: -
Hon. JOSEPH R. Bww.
Russell Senate Office Building,
Washington, D.C.
DEAR SENATOR Biaen: I understand that it
has been suggested that, depending on the
outcome of the Chafee Amendnent in the
Senate, the House might elect not to seek a
Conference to resolve the differences be-
tween H.R. 4 and S. 39L
Let me assure you that insofar as I am
able to influence the decision, the House
would seek a Conference with the Senate on
the differences between the two bodies on
the issue of the protection of intelligence
identities-regardless of the outcome of the
vote on the Chafee Amendment.
With every good wish, I am,
Sincerely yours,
EDWARD P. BOLAND,
Chairman.
I would note further for the RECORD
that we have spoken with the chair-
man's office on the House side and he
not only suggested there would not be
a delay but also that he would prompt-
ly move for a conference to resolve the
differences.
The second point that I would like
to raise is that during this debate, Sen-
ator CHAFES indicated that the reason
to believe standard is more effective
than the intent standard and he relies
on the testimony of Richard K. Wil-
lard, Counsel to the Attorney General
for Intelligence Policy, who is in the
record identified as a Democratic hold-
over.
I am not sure if it is important that
he is a Democratic holdover or not.
However, Mr. Willard came to the Jus-
tice Department, I am told he is not a
Democratic holdover but a Reagan ap-
pointee at the Department of Justice.
Second, the best testimony to the
greater effectiveness of the intent lan-
guage is Senator SPECTER, who, I
would argue, has more prosecutorial
experience than Mr. Willard does, who
happens to work for the Department
of Justice. Although Mr. SPECTER is a
Senator now, for years he was a pros-
ecutor.
We use Mr. Willard constantly as
justification for which standard is
better because he is an "expert," and
he is with the Justice Department.
The third point that I would- like to
make is that Senator CHAFES argues
that there are a number of statutes
and cases where the standard of
reason to believe can be used to con-
vict someone under the espionage stat-
utes. There are a number of statutes
that d6 have the reason to believe
standard, but none of them involve
publication or at least none have ever
been used to prosecute someone for
publication. Therefore, I do not be-
lieve they involve the direct first
amendment issue of free speech and
publication and they involve usually
covert communications or clandestine
collections and distribution to the
enemy, which does not involve the
protected interest inherent in the first
amendment.
It is one thing to publish a name and
be subject to the standard of reason to
believe. It can be published in an
American newspaper. I think we can
all argue that at least the first amend-
ment can be debated, whether or not
it comes into play. It is another thing
to publish it in -a memorandum to the
KGB. I do not see where the first
amendment issue really comes forward
there. There may be some reason to
believe standard in an espionage stat-
ute where if I identify the name of an
agent or an activity of the Federal
Government that is involved, or a
covert action that is under way, and I,
in fact, communicate that to a hostile
power, that is not the same as to
whether or not the first amendment
comes into play even though there is a
publication. It is a publicatiol;,,in an-
other country's internal firs and
memoranda used for purposes of dam-
aging the U.S. interests.
My point is that there is not a direct
corollary between the reason to be-
lieve language and the espionage stat-
utes' and the reason to believe lan-
guage as it applies to the first amend-
ment.
Also, Mr. President, proponents of
the bill as drafted make light of the
argument I have made that there is
really no difference between reason to
believe and intent vis-a-vis the ability
to argue that he had the benevolent
intent. We hear time and again on this
floor from those who support Senator
CHAFEE'S position. and from Senator
CHAFES, that the real reason why they
are concerned about the adoption of
the Senate version of the bill as before
the Senate, the real reason they are
afraid of the intent language, is that it
will be able to be skirted; it will, }n
effect, be so difficult to prosecute
someone and to prove intent that we
will, in effect, not be able to protect
our agents.
They go on further to say, time and
time-I will bet you the following as-
sertion appears 30 times in the
RECORD-"Philip Agee and/or anyone
else who publishes the name of an
agent in an effort to name names, as
the saying goes, if that person is re-
quired to be found guilty under an
intent statute all they have to do is
waltz into the courtroom, get up on
the stand, and on direct examination
from the defense counsel turn and
look to the jury and say, 'Ladies and
gentlemen of the jury, I didn't intend
to hurt anyone. I did not intend to
hurt the United States of America, I
didn't intend to impair or impede. And
because I said I did not intend to, you
must accept that. Therefore, I cannot
be found guilty of intending to impair
or impede.' "
Wejl, that sounds good. It sounds
pretty nice. But the fact of the matter
is, that is not how the system works.
The Senator from Pennsylvania (Mr.
SPECTER) a long-time prosecutor, one
of the most successful prosecutors in
the country in one of the largest juris-
dictions in the country. Philadelphia.
pointed out very well why the intent
standard would be easier under our
system of justice to prosecute and find
someone guilty of a reason to believe.
Let me quote from his statement. He
says:
In our system of justice, criminal cases
have traditionally required proof of crimi-
nal intent. That practice, which has been
generally followed in this country for nearly
200 years, has proven to be both realistic
and fair. The practice is workable even
though we cannot get inside the accused's
head-
Let me digress for a moment. Keep
in mind, you have heard that phrase a
number of times on the floor. We have
heard it said by my opposition, if we
have an intent standard, then we
really have to get inside the head of
the person who published the name of
the agent in order to be able to find
him guilty, the implication being that
unless they say, "Yes, I intended to
hurt," you are not going to be able to
find them guilty.
Back to the Statement of the Sena-
tor from Pennsylvania:
to examine his intentions because of two
well established legal doctrines. First, the
accused is deemed to intend the "natural
and probable consequences" of his actions.
Second, his intent need not be proved by
direct evidence, such as his statements, but
may be inferred from his actions. Juries are
instructed by the court that specific intent
"may be determined from all the facts and
circumstances surrounding the case." Even
where the accused proclaims that his intent
was innocent, juries often discount such
statements and infer the requisite intent.
On the basis of considerable personal expe-
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CONGRESSIONAL RECORD - SENATE March 16, 198,2
what I know of the case, and I do not
pretend to be an expert on it,- that
that is likely to be upheld. Wayne Wil-
liams may very well depart this world
in a consequence of inferred intent.
That is the way the system works. It
has worked that way for 800 years in
our English jurisprudence system.
So I hope my colleagues will dis-
abuse themselves of the notion that
when you have a requirement in the
statute for specific intent, that raises a
standard that is difficult for presecu-
tors to meet. It is not. It is done every
day in the courtrooms of this country,
day in and day out.
I thought the basic standard of
criminality in this country was to es-
tablish guilt. What is so special about
the reason to believe standard? There
is a little difference here.
The reason to believe standard, as
my colleague acknowledges, is an ob-
jective standard. What does that
mean, as opposed to a subjective
standard?
A subjective standard for criminal-
ity-whether I go to jail-is what is in
my head, so to speak, as is the phrase
used by those who oppose this bill. Did
I mean to do it, or did I not mean to
do it?
The objective standard, to be a little
more graphic, is that I can have an
intent not to do anything wrong. But
if my four colleagues who are in the
Chamber, from the four States repre-
sented, think that I should have had
reason to believe that something was
right or wrong, even though I did not
intend to do anything wrong, even
though I thought I was doing some-
thing right, even though I thought I
was being a patriotic American, they
are going to imply to me a negligence
standard, a civil standard. That is a
standard, I respectfully suggest, which
should be kept to negligence cases,
civil cases, not criminal cases.
I see that my distinguished colleague
from the great State of Washington
has arrived. I now yield to the Senator
from Washington (Mr. GORTON).
The PRESIDING OFFICER. The
Senator from Washington is recog-
nized.
Mr.'GORTON. I thank the Senator
from Delaware.
Mr. President, when the-motion to
proceed to the consideration of this
bill was laid before the Senate last De-
cember, I briefly addressed certain
concerns I had with the differences be-
tween the two contending sides over
appropriate provisions designed to pro-
hibit the disclosure of the identity of
covert agents of the United States. At
that time, I suggested an approach
which I believed could be the basis for
a possible compromise.
As my colleagues are well aware,
their differences concern the standard
of proof which will be required in
prosecutions pursuant to section
601(c) of the act. The bill, as intro-
duced, required, to support a convic-
tion, only that an individual have
"reason to believe that the disclosure
would impair or impede the intelli-
gence activities of the United States."
The bill as reported, however, requires
that an individual have the "intent to
impair or impede the intelligence ac-
tivities of the United States." It is gen-
erally agreed that, as reported, the bill
would require proof of specific intent,
the criminal standard most difficult
for a prosecutor to meet. I understand
that those who advocate the specific
intent standard do so, in part, because
of the potentially expansive scope that
could be given to the "reason to be-
lieve" language.
I believe that there is merit in both
approaches as well as merit in the
criticism each side has for the other's
proposal. It is for this reason that I be-
lieve a compromise to be in order.
I would like briefly to share with my
colleagues a bit of the frustration I
have felt in the past several months in
attempting to suggest a compromise
which would address many of the con-
cerns I have heard raised.
CHRONOLOGY Or COMPROMISE ATTEMPTS
My first attempt to find a compro-
mise was offered on the floor during
the debate on December 16, 1981. This
approach would accept the structure
of the intent standard as adopted by
the Senate Judiciary Committee. But
it would go on to include the following
language in the way of defining intent:
For purposes of this subsection, proof of
intent to impair or impede the foreign intel-
ligence activities of the United States by the
fact of such identification and exposure:
(1) May be established by proof of specific
intent; or
(2) May be inferred from the fact of such
identification and exposure where the for-
eign intelligence activities of the United
States have been impaired or impeded, and
the impairment or impediment is a natural
and probable consequence of such identifi-
cation and exposure.
The purpose underlying this propos-
al was to offer a standard somewhere
between the intent and "reason to be-
lieve" approaches. I was-and I
remain-concerned that the House
language may be so broad or vague
that it would cause a chilling effect
upon the exercise of protected first
amendment rights; but the Senate Ju-
diciary Committee language, in requir-
ing proof of specific intent, may man-
date such an arduous burden of proof
that the act will be very difficult to
enforce. My proposal sought the
middle ground by allowing conviction
upon proof of specific intent, but also,
in circumstances in which specific,
rather than generic, harm to the intel-
ligence activities of the United States
did occur, conviction could be obtained
by a showing of general intent. This
latter standard is less strict thant the
specific intent requirement, and could
be inferred where the court found the
harm. to have been he natural and
probable consequence of the exposure
of the agent's indentity.
This proposal was misunderstood.
Some believed it would adopt the spe-
cific intent standard, but would allow
circumstantial proof of specific intent
only where harm occurred. I did not
intend to suggest that either type of
intent could be proved only with direct
evidence. The distinction my proposal
made was between specific intent and
general intent, either of which always
could be established with circumstan-
tial evidence, but which differ signifi-
cantly with regard to the degree of
proof required.
Others objected to this initial pro-
posal on the ground that the language
would imply that harm to the intelli-
gence activities of the United States
would not occur in all cases in which
the identities of covert agents were ex-
posed-and that this implication was
objectionable since proof of harm
would require intelligence agencies to
reveal sensitive classified information.
In any case, it became clear that my
first effort could not be the basis for
an agreed compromise amendment.
My next attempt followed the opinion
of the Supreme Court in Gorin v.
United States (312 U.S. 19 (1941)). In
that case the Supreme Court inter-
preted language in the Espionage Act
of 1917 punishing certain activities ac-
complished "with intent or reason to
believe that the information obtained
is to be used to the injury of the
United States, or to the advantage of
any foreign nation." The Court said
that this statute-
[Rlequires those prosecuted to have acted
in bad faith. The sanctions apply only when
scienter is established. (312 U.S.C. at 28.)
In hearings before the House Perma-
nent Select Committee on Intelli-
gence, Richard K. Willard, counsel for
the U.S. Department of Justice, Office
of Intelligence Policy and Review, tes-
tified that he believed that the Gorin
interpretation may not apply to the
"reason to believe" standard in the
context of the Intelligence Identities
Protection Act. He suggested that the
"reason to believe" language in this
context might impose merely a negli-
gence standard which would not neces-
sarily even require an actual apprecia-
tion of the risk or a "reckless disre-
gard" standard. Hearings before the
Subcommittee on Legislation of the
Permanent Select Committee on Intel-
ligence, House of Representatives,
97th Congress, 1st session, regarding
H.R. 4, pages 36, 38, and 40 (April 7
and 8, 1981).
My second effort to find a workable
compromise was simply to try to find
acceptable language which would clar-
ify in the statute itself that the Gorin
doctrine would apply to the "reason to
believe" language in the context of S.
391-that at least some bad faith re-
quirement would be involved. I was
frustrated once again in finding specif-
ic language which both sides would
accept.
My next try at finding the elusive
middle ground involved a proposed col-
loquy between the distinguished Sena-
tor from Minnesota (Mr. DUREN-
BERGER) and the distinguished Senator
from Rhode Island (Mr. CHAFEE). In.
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S 2128 CONGRESSIONAL RECORD - SENATE March 16, 1982
Government has to prove them intelligence activities of the United fec r, bthat one ecause of aone's nticipates
other goals, forms to
beyond a reasonable doubt. We are not States. . important safeguard for civil liberties. The
setting them up as defenses that the Mr. GORTON. But there is no re- amendment before us would bring that safe.
defendant has to raise. They are the quirement of proof that harm resulted guard into play, would it not?
six elements of proof the Government from the disclosure? The answer from Mr. CHAFEE:
has to prove and, absent them, the Mr. BIDEN. If I may interrupt, the
case is,dismissed as the Senator from Senator is absolutely correct, there is Yes, it would, Senator Durenberger.
Washington knows from his vast expe- no requirement. Now that seems to me fairly to con-
rience as a prosecutor. Mr. GORTON. I go on then to my clude that the primary intent of the
The Government has to prove as one next question and I will ask perhaps conduct must be the disclosure of the
of the elements that the defendant for an answer from both Senators. If names of the agents. If I may, I will go
had reason to believe his activities in fact the committee found, and Sen- on to the bottom line of this proposal
would impair or impede the foreign in- ator CIAFEE agrees, that harm does which is if that is in fact, the case,
telligence activities of the United result from every disclosure, why do given your answer--
States. we not have a bill before us which pro- Mr. CHAFEE. Let us finish this part.
Mr. GORTON. But if I may point hibits every disclosure? Mr. GORTON. All right.
out to the Senator from Rhode Island, Mr. CHAFEE. The answer to that is Mr. CHAFEE. I am not prepared to
none of those six elements which the we are balancing two interests. We are concede the very point you are making
Government has to prove is that there balancing the first amendment against and that you are suggesting.
was harm caused to its intelligence ac- the national security and that is the Senator DURENBERGER, in his ques-
tivities. Given that the Senator has as- whole careful exercise we are going tion ends up:
serted at one point that we are making through. We have not said that it is an a finding here that harm takes place offense every time to disclose the A newspaper reporter, then, would rarely
under the circumstances of every dis- name of an agent. That is why we have engaged in a pattern of activities with
intent Instead, ad, such a identify and result would
closure, but he told Senator DUREN- have these elements of proof which I covert agents." the requisite
agld
BERGER that the defendant could con- have gone through before with the ordinarily be "the (anticipated) side effect
test the logic of the Government's as- Senator. of his conduct."
sertion that a given disclosure would Mr. BIDEN. I assume the Senator This is dealing with the pattern of
cause harm; but that is not going to be also wants me to respond to that. The activities which we discussed, this Gru-
a defense, I take it. So why would he Senator's first question was very inci- cial distinction between the main di-
contest it? sive in pointing out what we are rection of one's conduct and side ef-
Mr. CHAFEE. Give me the question moving toward which, as I understand fects that one anticipates but allows to
again. it, is whether or not there is a require- occur-is this where you are?
Mr. GORTON. We went through ment of showing harm. There is no re- Mr. GORTON. This is exactly where
the six elements which the Govern- quirement of showing harm. Every dis- I am.
ment must prove. In those six ele- closure is assumed to be harmful, as- Mr. CHAFEE. "Forms an important
ments, I take it, we do not include suming one other thing, the crime safeguard for civil liberties. The
proof that harm resulted from the dis- only comes into effect if, in fact, you amendment before us would bring
closure. The Senator has stated that it intended to harm. The harm portion that safeguard into play, would it
is the finding or the basis both of the in the terms of the jury determining not?" The answer is:
committee's proposal, and I take it of whether or not there was any harm Yes it would, Senator Durenberger, and
his own, that harm does result from done goes on its face to the mere dis-
.
every such disclosure. Yet the Senator closure of the name which, in this bill, that is one reason why I believe that my version is actually better for civil has told Senator DURENBERGER in a col- is in fact the reason through which than the as r liberties
than tbill as reported d out of f committee.
loquy in which he engaged with him the Federal Government can move to That has nothing to do with harm to
that the defendant could contest any prosecute. They then have to beyond the United States. That has to do with
assertion that the given disclosure that prove that you intended to do the disclosure of the name of an
caused harm; but now he is saying the harm, agent.
Government does not have to prove Really what we are trying to estab- certainly does
harm anyway, so the proof that it lish-maybe I will just stick to the Mr. GORTON. primary it ce ce
oes
does
would not cause harm on the part of question. have . have t to with the y intent nthe defendant would not be a defense Mr. GORTON. Perhaps this brings it not? s It the e pattern the But t iact, tof is the activities, thrust of
and would do him no good, is that not me to my next question of the Senator it not? in
why not
correct? from Rhode Island, and I am back your language proposal. M My that
question is t your is proposal
why not
Mr. CHAFEE. I will go through again to his colloquy with the Senator incln uag
body
those six elements. First, the Govern- from Minnesota. which include
the points provision out that
rather fact than in the simply in
ment has to prove that there was an My understanding in that respect this colloquy?
intentional disclosure of the informa- was that one of the the distinctions
tion which indeed did identify a covert which the Senator from Rhode Island Mr. CHAFEE. Well, it seems to me
agent and, second, the Government regarded as quite important was that you are heading in two directions. It
has to prove that the individual who the primary intent of the disclosure seems to me you started off this after-
received the information was not au- did have to be directed at same kind of noon by suggesting that there had to
thorized to receive classified informa- harm to the United States before you be harm to the United States, and
tion. Next, the Government has to wish to have criminal penalties that that was a defense. Both the Sen-
prove that the person making the dis- adhere; is that correct? ator from Delaware and I have point-
closure knew the information disclosed Mr. CHAFEE. I think you should ed out that that is not one of the ele-
did identify a covert agent, and fourth, quote from the colloquy that you are ments of proof. Either it has to be
the Government has to prove that the suggesting. with an intent to impair the intelli-
United States was taking affirmative Mr. GORTON. I think that is a good gence activities of the United States
measures to conceal the covert agent's idea. or, my language; which is reason to be-
classified intelligence affiliation. Mr. CHAFEE. If you would, I would lieve.
And then the last two elements are appreciate it. But now you are taking this other
the ones I already mentioned, namely, Mr.-GORTON. In the course of the language and somehow suggesting
there was a pattern of activities in- colloquy, Senator CaAFEE, at the end that in the colloquy I had with Sena-
tended to expose agents' identities and of one of Mr. DURENBERGER'S questions tor DURENBERGER this is what I said.
that the person making the disclosure was this statement: And that is not what I said at all.
had reason to believe his activities This crucial distinction between the main Mr. GORTON. Mr. CnAFEE, the first
would impare or impede the foreign direction of one's conduct and the side-ef- proposal that I made to you and to
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Mr. BIDEN did have an alternate
method of proof which included harm,
although it also left the specific intent
standard, which does not require
harm.
Our last suggestion, however, was
simply that the definition of the term
"pattern of activities" which you use
in your statute, have added to it, and I
quote, "the main direction of said pat-
tern of activities must be to identify
and expose covert agents." That does
not include any test or implication of
actual harm whatsoever. It seems to,
me that ,it is totally consistent with
your answer to Senator DuRENBEaoza.
My question is, therefore, why do you
oppose its inclusion in that definition?
Mr. CHAFEE. The language you
have proposed deals with and uses
words that are not statutory words.
Was not the language you proposed
"main direction"?
Mr. GORTON. It is.
Mr. CHAFEE. That is just as nebu-
lous, and it is on that basis we thought
that was inappropriate.
Mr. GORTON. But it is taken from
the Senator's colloquy. Was It nebu-
lous there? Is the colloquy going to be
used in court? If it is not nebulous
there, why is it nebulous as a part of
the statute?
Mr. CHAFEE. Because in the collo-
quy, one is setting forth the back.
ground, making a record, as it were,
which is different from the specific
language one uses in a statute. In the
statute we used a word which has been
discussed here to a considerable extent
today; namely, "intent" to identify
and expose covert agents.
Mr. GORTON. At this point I am-
not asking a question about intent at
all. I-am simply dealing with the defi-
nition in the statute of the term "pat-
tern of activities," which "requires a
series of acts with a common purpose
or objective," and then asking why
that should not be further clarified by
adding the language, "The main direc-
tion of said pattern of activities must
be to identify and expose covert
agents."
I think that is totally consistent
with your colloquy with Senator Dvx-
ENBERGER. I do not believe that you
have disagreed with me in that re-
spect.
Is your only reason for opposing the
amendment that you think the lan-
guage which you used yourself in the
colloquy is too vague?
Mr. CHAFEE. Pardon? The last
words you said were what?
Mr. GORTON. Is the only reason
ment. The language that you seek
does not have a Judicial history to it.
Mr. GORTON. Does Senator Bran
have any reaction to that?
Mr. BIDEN. It seems to me it makes
a lot of sense on the point. It seems to
me you are right about the pattern of
activities. A pattern of activities, by
the way, to take it a step further, need
not be established in testimony, need
not be a pattern of disclosure. It needs
to be only a pattern of activities which
resulted in disclosure.
I do not we how your suggestion of
clarification is harrmful. It is consist.
ent with what I think the Senator set
out today-what Senator Cnam said
it would do.
I would like to at some point to go
back to your first point about the
question of- harm. I am not sure you
want to do that now. I think when we
get to that I can show you that is all
the more reason why you need a
tougher standard, an intent standard,
rather than a reason to believe stand-
ard. If. in fact, the Government does
not have to show there is actual harm
done, then, In fact. It seems to me the
burden should be greater upon the
Government to show that you intend-
ed to do harm. But I am not sure you
want to get to that right now.
(Mr. EAST assumed the chair.)
Mr. GORTON. I note in the opening
statement of Senator Cnesrt on Feb-
ruary 25 of this year. he stated ",The
pattern of. activity Includes more than
one disclosure.'.' By that does the Sen-
ator mean a disclosure of more than
one name or the disclosure of a single
name more than once, or both?
Mr. CHAFES. Let me quote the lan-
guage in the report of the Select Com-
mittee on Intelligence. That might be
helpful. I will quote from page 22:
A Journalist writing stories about the CIA
would not be engaged in the requisite --pat-
tern of activities," even if the stories he
wrote included the names of one or more
covert agents, unless the government proved
that there was intent to identify and expose
agents and that this effort was undertaken
with reason to believe it would impair or
impede foreign intelligence activities. The
fact that a journalist had written articles
critical of the CIA which did not identify
covert agents could not be used'as evidence
that the purpose Was to identify and expose
covert agents. To meet the standard of the
bill, a discloser must be engged in a purpose-
ful enterprise of revealing names-he must,
in short, be in the business of "naming
names.-'
Then there are some illustrations
that are given in this report language.
There it is. I do not know what more I
can give you, along with the definition
that we have in the act itself.
you disagree with adding that kind of Mr. GoaTON. I was not referring to
an amendment the fact that you think the report language. I was referring to
the language in your colloquy is too the statement the Senator made in his
vague to be included in the statute? opening salvo, in his argument on the
Mr. CHAFES. Yes. There is no his- floor. I think my question was fairly
tory of the use of such language. Fur- simple and is not answered by the
thermore, the problem is you do not report language. It involves proof of a
like my answers, but I cannot go any . pattern of activity. You. say this re-
further with you. quires more than one . disclosure. But
'The language, the intent, which we that is somewhat imprecise. I simply
.have included is.sufficient, in my Judg- wanted to know whether the Senator
S 2129
meant by that the disclosure of more
than one name or the disclosure of a
single name more than once. If there
is any implication in your answer by
reading from the committee report, it
may be that it was a disclosure of a
name more than once. Am I correct on
that or not?
Mr. CHAFEE. Well, go back and
look at my statement. The Senator is
taking the statement I made. Let me
Just say this: It appears to me that the
Senator has misunderstood that. I did
not say a pattern of activity necessar-
ily includes more than one disclosure.
I said the pattern of activity requires a
series of acts with a common purpose
and objective. It is not necessarily one
disclosure. It is a pattern of activities
to impair or impede U.S. foreign intel-
ligence activities.
Thus, there must be proof not only
with regard to a particular disclosure
but also with respect to a 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..
That was the quote that I gave in my
statement.
In other words, one disclosure, plus a
series of acts leading to that diselo-
sure, could be a pattern of activities.
Many disclosures could also be a pat-
ternof activities. However. it is impor-
tant to state that 'this pattern of activ-
ities must be done with the required
intent. I do not think you can brush
that aside. -
We are looking at this act without
considering the six elements of proof
which I have time and time again
stressed. The pattern of activities
must be done without the intent to
Identify and expose. In order words,
you have to have a pattern of activi-
ties and you have to have the, intent to
expose.
Mr. BIDEN. Will the Senator yield?
Mr. CHAFEE. Let me Just say one
other thing. I think it is clear from the
language of the bill and the accompa-
nying legislative history that an indi-
vidual could be liable for a single dis-
closure of a single name under either
of these versions, either under the
Biden language or under the language
that I have proposed.
But it is also clear that the other
elements would have to be proved as
well.
Mr. GORTON. With that statement
I certainly agree. Did Senator BIDEN
wish to respond?
Mr. BIDEN. Yes, I would like to re-
spond. Do not get carried away with
the language in the report which talks
about revealing or being in the busi-
ness of naming names. You do not
have to name names. You only have to
name one name, No. 1.
No. 2, the Justice Department testi.
mony before our committee was that
their interpretation of a pattern of ac-
tivity would mean that a single report-
er going out and Identifying a single
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CONGRESSIONAL RECORD - SENATE March 16, 1982
name, if he or she in the course of
trying to find out that name contacted
several people, establishes a pattern. A
pattern can be established by, literal-
ly, if I am a reporter, going to see the
intelligence committee spokesperson
and saying, "Is John Smith an agent?"
They say, "No comment."
Then they go over and look in some
old military records to see if John
Smith had ever been in intelligence.
That is another thing they have done.
Then they go out to Langley.
They have established a pattern by
that. The pattern of activity that Sen-
ator CHAFEE keeps talking about as
one of the six protections is in fact no
protection at all. There is not any pro-
tection.
He is quite correct, under the intent
provision we do not require that there
be a pattern of activity. The term pat-
tern of activity just requires a
common purpose or objective. The
common purpose is established if you
can show that the pattern was de-
signed and activity undertaken to dis-
close a name. That is, again, all the
more reason why there is a need for
the "additional standard protection of
requiring intent."
The pattern of activity is not any
protection.
Mr. CHAFEE. The case that the
Senator from Delaware cited in sup-
port of his language seems to me does
not Be. It is clear, under his definition,
that someone seeking to track down
the name of an agent and who gets
the name of an agent and publishes it
after going through this effort, would
be guilty under the Biden language. I
do not see what defense the reporter
would have in that instance.
Mr. GORTON. Both Senator BIDEN
and I agree on that.
Mr. BIDEN. That is my point.
The point I am trying to make is
that Senator CHAFES and those who
support his position constantly refer
to the establishment of a pattern of
activity as one of the six sacred safe-
guards. "The Government has to
prove six elements here and one is a
pattern of activity."
Well, that is not much of a hurdle to
overcome. A pattern of activity can be
easily established and because it can
be, and because, further, there Is not a
requirement for the Government to
prove that harm was done to the Gov-
ernment-neither of those require-
ments exist-that is all the more
reason why we have to err on the side
of sticking to the time-honored juris-
prudential standard of requiring
Intent.
Mr. GORTON. In this colloquy, I am
still not totally persuaded, I will say to
the Senator from Delaware, about
that point In its entirety. It certainly
leads to my next question of the Sena-
tor from Rhode Island. Under the
Chafee amendment, to support a con-
viction must the primary intent of the
defendant have been to disclose the
identity of agents as opposed to the
disclosure simply being a side effect of
the pattern of activities?
Mr. CHAFEE. Would the Senator re-
state the question?
Mr. GORTON. Let me repeat it.
Under the Chafee amendment, in
order to support a conviction must the
primary intent of the defendant have
been to disclose the identity of an
agent or agents as opposed to that dis-
closure being a mere side effect of a
pattern of activities?
Mr. CHAFEE. Mr. President, I dis-
agree with the point that the Senator
from Delaware stresses. He seems to
be taking over the definitions that
come from our act and describing
them as the pattern of activities and
the intent being the same standard. I
do not believe so at all. Nor are they
meant to be.
The pattern of activities is as de-
fined. That is something quite differ-
ent from the intent to disclose.
Mr. BIDEN. Mr. President, I am not
suggesting they are synonymous.
Mr. CHAFEE. Mr. President, I shall
handle my section of the bill and the
Senator can handle his.
Mr. BIDEN. Fair enough.
Mr. CHAFEE. In response to these
questions of the Senator from Wash-
ington, in his very question, he pro-
poses that the intent is part of the
pattern of activities. That is not so.
The intent to disclose an agent is an
element. Indeed, an individual might
have an intent to disclose the name of
an agent, but the question remains-
was this a part of a pattern of activi-
ties? It could well be that it was not
and the absence of a pattern of activi-
ties would be a successful defense.
Mr. BIDEN. Mr. President, is it per-
missible for me to respond to that, be-
cause I think the Senators are making
a very, very important point?
The reason for the notion of wheth-
er or not it was a primary intent or a
side effect in the disclosure is that the
pattern of activity which took place
resulted in the disclosure of an agent.
For example, someone could be out
writing a book about how the CIA
works and be trying to establish a par-
ticular point. In the process, as a side
effect, he discloses a name. It is very
difficult to determine whether or not
it is primary purpose or secondary
purpose or side effect. That is why we,
those who took my position, aban-
doned that whole attempt to establish
intent as it relates to disclosure. It is a
nonwinning game. It is hard to pin
down how that relates to disclosure.
Intent relates to the question of dis-
closure of a name in the Chafee bill.
We abandoned that in our bill and
intent goes to the question of whether
or not there was an intent to do harm,
not to disclose a name or not disclose a
name.
The Senator from Washington is
making, whether he intended it or not.
a perfect case why the intent provision
as it appears in the Chafee language is
meaningless.
Mr. GORTON. Mr. President, I am
frustrated by this exchange because,
in fact, I read the Durenberger collo-
quy as being a very constructive step
forward.
Mr. BIDEN. If that is what it really
means.
Mr. GORTON. One which would
have persuaded me to vote for the
Chafee amendment were I persuaded
that the courts would interpret
"reason to believe" as the Senator
from Rhode Island explained it to Mr.
DURENBERGER. I have been trying to
get an answer from the Senator from
Rhode Island which would allow me to
do that. I do not think my last ques-
tion was a trick. I think that the way I
read his colloquy with Senator DUREN-
BERGER, when a disclosure Is a mere
side effect of the pattern of activities,
there Is not a sufficient degree of
proof to sustain a conviction under the
Chafee amendment. It must be the
primary intent of the defendant to dis-
close the identity of agents.
I think that is what the Senator
from Rhode Island told the Senator
from Minnesota. My frustration comes
from the fact that I do not think that,
standing alone, his language leads to
that conclusion. I simply wanted to
propose a change, not from "reason to
believe" to Senator BIDEN's "intent,"
but simply to put into the statute
itself what the Senator from Rhode
Island said his amendment meant.
Mr. BIDEN. Believe it or not, Mr.
President-
Mr. CHAFEE. Wait a minute, Mr.
President. If I am going to defend my
amendment, I want to do the defend-
ing.
Mr. BIDEN. I think that is a good
idea.
Mr. CHAFEE. If the Senator from
Delaware wants to address a matter.
he is perfectly free to do so. But I do
not want him describing my amend-
ment. I am perfectly capable of under-
taking that by myself.
If he has a question, the Senator
from Washington should go ahead and
ask it. But in all fairness, he has been
against this amendment right along..
so I do not know what has changed all
of a sudden that made it palatable to
him. If it can be made palatable, I cer-
tainly would be delighted to do so
within the realm of what is legal lan-
guage and would hold up in court.
Mr. GORTON. Mr. President. I may
say I cannot speak, of course, for the
Senator from Delaware. I can, howev-
er, speak for the Senator from Wash-
ington, and I can only repeat that I
felt that I had reached a point at
which I could support the Senator
from Rhode Island when I read his
colloquy with Senator DURENBERGER.
This was true, except for the fact that,
as a cautious lawyer, I did not feel
that what I understood from the collo-
quy was apparent simply from the
plain meaning of the "reason to be-
lieve" language in the amendment
itself.
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, Man,h 16, 1982 CONGRESSIONAL RECORD - SENATE
It is for that reason that I suggested
the softest possible amendment, an
amendment which did not change the
"season to believe" standard of the
Senator from Rhode Island, but which
simply attempted to take the words
out of his own colloquy with Senator
DURENBERGER by adding to the defini-
tion of a "pattern of activity," the lan-
guage, "The main direction of the pat-
tern of activities must be to identify or
expose covert agents." ?
I believe the Senator from Rhode
Island has said that in fact is an accu-
rate reading of what he said and
meant in his colloquy with Senator
DuRNsaRonR. My frustration stems
from the fact that he is unwilling to
put it in the statute.
It is just as simple as that, Mr. Presi-
dent. I would like to vote for the
Chafee amendment.
Mr. CHAPEE. And, Mr. President, I
would like to have him vote for it.
Mr. GORTON. Then why can we not
add that language to the Chafee
amendment? I suspect it would also
secure the votes of a number of people
who prefer the intent language.
Mr. CHAFEE. Mr. President, I do
not know what else we can do. The
Senator wants the changes made. The
language which we have in here-we
are plowing old ground now-deals
with an intent to identify and expose
agents. Why is that not clear enough?
What does the Senator want?
Mr. GORTON. I do not propose to
change that language, Mr.?President. I
do not propose to change a single word
in that language. I simply propose to
change the definition of "pattern of
activities" to incorporate in it the ex-
planation of that term which the Sen-
ator from Rhode Island accepted in
his colloquy with Senator DvREir-
BUROER.
Mr. CRAPES. Mr. President, we
have gone over this before and we can
repeat it. Obviously, in a colloquy, one
is not using exact, specific legal terms.
A colloquy, history of the act, a report,
all go into the makeup. But the specif- -
le language the Senator was seeking, I
believe, is something different. Can he
repeat his language, the main thrust,
as it were?
Mr. GORTON. I can, President,. and
I shall be even more specific. The lan-
guage in the bill is on page 9, subsec-
tion 10. That subsection says this:
The term "pattern of activities" requires a
series of acts with a common purpose or ob-
jective.
That is the entire definition as the
bill appears now. I would add to that:
The main direction of said patterns of ao-
tivities must be to indenify and expose
covert agents.
I believe that this language-I do
not mean to try to mislead the Sena-
tor from Rhode Island in any respect
whatsoever-is the precise thrust of
what he said that term "pattern of ac-
tivities" did mean in answering ques.
tions of Senator DURENBEROER early in
the course of this debate.
If I may say so- .
Mr. CHAFES. Let me just answer
the Senator from Washington. He is
an experienced lawyer, formerly attor-
ney general of his State. What does he
think of language that has words like
"main direction?"
Mr. GORTON. I would suppose-
Mr. CHAFEE. Has he ever seen it?
Mr. GORTON (continuing]. That if
I were a judge and I were dealing with
a prosecution under this act and I had
to give a jury instruction as to what
the term "pattern of activities" means,
and I were referred by either the pros-
ecuting attorney or by the defense
counsel to the debate over this in Con-
gress because I was attempting to find
out what it means, and I read the
Chafee-Durenberger colloquy, I might
very well make an instruction read
that the term "pattern of activities"
requires a series of acts with common
purpose or objective, and the main di-
rection of said pattern of activities
must be to identify or expose covert
agents.
I think I might very well take that
right out of 'the debate over this bill.
In my view, to a juror, that would be
quite meaningful. That is plain, simple
English; it is not even a particularly
long sentence. Under those circum-
stances, why make the judge guess at
making that instruction?
Mr. President, I do not think this
language is vague or general, anymore
than anything else in this proposal is.
It is not something new. It is not in a
foreign language. They are simple
words.
I suppose that the reason that I
bring this up is that it seems to me to
consolidate and strengthen the posi-
tion of the Senator from Rhode Island
in this entire debate. If provides the
great strengthening from his colloquy
with Senator DURENsERGER by putting
into the statute language which clari-
fies what he says it means.
Mr. CHAFES Mr. President, would
the Senator remove the word "intent"
on line 8, page 3, subsection (c)?
Mr. GORTON. I am sorry, Mr. Presi-
dent. Would the Senator repeat that?
Mr. CHAFES.- Would the Senator
then remove the word "intent" in
601(c), where we say, "Whoever, in the
course of a pattern of activities, in-
tended to identify and expose' * ?"?
Mr. GORTON. I do not think so. I
was not proposing to make any
changes there.
I was not proposing to strike any-
thing from the Senator's amendment
or from the bill. I was simply propos-
ing to clarify the meaning of the term
"pattern of activities."
Mr. CHAFEE. In the language we
have, the pattern of activities has to
have the intent. It has to be a pattern
of activities, and it has to have the
intent.
It seems to me that-what the Sena-
tor from Washington is proposing is
what we have in there. In the colloquy
with Senator DvRExssaGER-and I re-
member it-we put considerable stress
on the very point of the intent.
S 2131
Mr. GORTON. I believe that is so. A
fair question in the colloquy with Sen-
ator DURENBEROER was whether or not
we were dealing with what might be
called the primary Intent of the pat-
tern of activities rather than a second-
ary or merely incidental intent. It was
to clarify that question that the Sena-
tor from Rhode Island both set up the
colloquy and answered as he did.
So, no, I do not think I would want
to remove the word "intent" from the
other portion in the statute. We prob-
ably could reach the same goal by
simply putting "primary" before the
word "intent" earlier in the act. How-
ever, I understood the Senator to
object to that as being too drastic. I
think this is a less drastic method of
doing the same thing.
Mr. CHAFEE. Let us take it under
consideration. Why does the Senator
not move on, if he has other ques-
tions?
Mr. GORTON. No. As a matter of
fact, since this is the central point in
my colloquy with the Senator from
Rhode Island, and since I intend to
vote for the amendment of the Sena-
tor from Rhode Island if he accepts
this proposal, the only, conclusion I
have here in my speech depends on
what his answer is to my question.
Mr. CHAFEE. I shall have to consid-
er that. We are not through yet. Obvi-
ously, we will be on this measure to-
morrow.
Mr. GORTON. I am more than
happy to have the Senator consider
this proposition overnight and to
obtain an answer later. At that point, I
may have something further to say to
Senator BIDED.
Mr. CHAFEE. All right. By "all
right," I mean that, I heard the Sena-
tor, and I appreciate his suggestion.
Since the Senator has indicated that
he is going to vote against Me, anyway,
I can only go up with regard to con-
forming to his wishes and, perhaps se-
curing his vote.
Mr. GORTON. I thank the Senator
from Rhode Island.
(Mr. ABDNOR assumed the chair.)
Mr. QUAYLE. Mr. President, I wish
to respond to the debate of yesterday
concerning the statement I . made on
January 25 of this year with respect to
two fundamental points.
One, the appropriate element for a
criminal statute, the issue there being
the "reason to believe" standard
versus the "intent" standard; and two,
the question of gray mail.
Mr. President, the distinguished
Senator from Rhode Island yesterday
made some observations to which I
should like to respond.
First, the fact that "reason to be-
lieve" language implies a negligence
standard is well-founded throughout
the legal community and by Interpre-
tation in the courts. The Senator from
Rhode Island points out, with testimo-
ny from the Justice Department on
October 6 of last year that:
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CONGRESSIONAL RECORD - SENATE March 16, 1982
If the "reason to believe" standard stood
by itself and were the only element of this
offense.... it would in many ways resem-
ble negligence.
So the Justice Department said, in
response to a question by Senator
LEARY, that just by itself, yes, "reason
to believe" language would be a negli-
gence standard. Then the Justice De-
partment goes on and is quoted in the
RECORD as follows:
Therefore, while that one provision, taken
in isolation, would be sort of a negligence
standard, it Is accompanied by five other
elements which involve actual knowledge
and specific Intent.
Mr. President, "intent" is the stand-
ard for a criminal statute. "Reason to
believe" is the standard for a negli-
gence statute.
I find it very interesting that the
conclusion of the Justice Department
goes to the actual knowledge and spe-
cific intent we are debating here
today. I hope this body will view the
debate in that context-that even the
Justice Department is saying actual
knowledge and specific intent are ele-
ments of the crime. Yet, we are going
to be asked to vote on the Chafee
amendment to insert "reason to be-
lieve."
The second point that my good
friend and distinguished colleague
brings up concerns the very important
debate on the issue of gray mail, and
the possibility that what the Chafee
amendment would promote has been
misunderstood. 3f do not believe that
the arguments are complex, but it
seems to me that, nonetheless, they
are easily confused.
It has been suggested that the
Chafee amendment would pose no
problem of ,gray mail. With all due re-
spect, I must ,disagree. The Senator
from Rhode Island said yesterday:
The "reason to believe" standard avoids
this problem by ring on overt acts
rather than on some subjective state of
mind.
I ask this: What other evidence,
beside exposure of these overt acts,
can be used to establish.proof of guilt
in such cases? What other evidence,
beside exposure of such overt acts,
would be thrown up as a defense?
I go back to the March 15 statement
in the RECORD. where again the Justice
Department is called upon to provide
us with wisdom in correcting any un-
certainties we may have. I read from
the RECORD, page S 2079, quoting Mr.
Robert Keuch, Assistant Deputy At-
torney General in the Carter adminis-
tration:
The Justice Department is concerned that
the specific intent element will facilitate
gray mail efforts to dissuade the Federal
Government from prosecuting offenders.
What the Justice Department does
not tell us is what the "reason to be-
lieve" standard will- do to facilitate
gray mail efforts to dissuade the Fed-
eral Government from prosecuting of-
fenders.
Mr. President, this issue is much
simpler than it is given credit for
being. Obviously, the intent standard
is more narrow; it is more difficult to
prove. The "reason to believe" stand-
ard is broader in its context; it is more
encompassing. Therefore, by logical
sense, the "intent" standard in discov-
ery elements will be more restricted,
and the "reason to believe" standard
in discovery will be expanded. That is
the case we are arguing. That is the
issue of gray mail.
Mr. President, I bclleve we will have
to ask ourselves one very fundamental
question, and, it is this: Given a crimi-
nal statute, do we want a criminal
standard? If the answer is yes, then
the Judiciary Committee's language
should stand. If the answer is no, then
I suppose it would be advisable for
those willing not to have a criminal
standard to vote for the Chafee lan-
guage.
Finally, I should like to comment on
the recent colloquy I heard between
the Junior Senator from Washington
and the Senator from Rhode Island.
The colloquy left me with the under-
standing that the Senator from Rhode
Island would be willing to consider the
proposition put forth by the Senator
from Washington. The Senator from
Rhode Island did not give us any indi-
cation of what that consideration
would be, but at least the discussion
left me with the impression that he
would be openminded with respect to
the Gorton amendment. which keeps
the basic principles of the Chafee
amendment intact but does not agree
with the precise language that was
passed by the House of Representa-
tives.
I find very disturbing what could
happen here.
We have the "intent" and "reason to
believe" language adopted by the
House Committee on the Judiciary
and overturned on the floor of the
House of Representatives. We have
the "reason to believe" or the "intent"
language adopted by tine Senate Judi-
ciary Committee and a chance of being
overturned on the floor of the Senate.
We have two committees in both
Houses which have paid far more at-
tention to this issue than 90 percent of
the Members of the House of Repre-
sentatives or 90 percent of the Mem-
bers of the Senate. That is the way
the committee system works.
If we adopt the Chafee language
without the amendment or without
the suggestions from the Senator from
Washington, we are not going to have
a conference on this disputed lan-
guage. There will be no middle ground.
And we will in fact have both Houses
overturning committees on a very im-
portant and substantive issue.
Speculation is that the vote is going
to be reasonably close. I would say to
those who are listening and to those
who are not here today that, if there
is a question in their minds on wheth-
er the Chafee amendment is the
proper language, they vote against the
Chafee amendment, unless Senator
CHAFEE is willing to consider the prop-
osition put forth by the Senator from
Washington.
Otherwise, we will be doing some-
thing that ultimately we could bje
sorry for.
Deliberations have taken place in
both committees, the House of Repre-
sentatives and the Senate, and there is
a chance now that those committees
will be overturned.
Not even looking at the merits, but
just looking at the simple process of
overturning the committees and thus
not having that item conferenceable, I
believe would be a serious mistake in
the legislative process that we so fer-
vorishly support.
Mr. CHAFEE. Mr. President. I wish
to address the last point of the distin-
guished Senator from Indiana and
then I will address the others. The
point he seems to be making here is
that when committees have considered
language, woe betide the rest of us on
the floor of the Senate should we con-
sider changing that. I just cannot be-
lieve that that is the thrust of his ar-
gument.
First of all, if we want to follow that
through. If he accords such significant
consideration in the committees to the
language that therefore we are bound
to follow it here on the floor at great
risk if we do not do so, certainly is
plowing a new path in senatorial con-
duct.
Mr. QUAYLE. Mr. President, will
the Senator yield?
Mr. CHAFEE. If I may finish, he
will recall that this matter was set
before and was considered in the sub-
committee of the Judiciary Committee
for something like 4 months and there
the subcommittee approved the
Chafee language. Then it came to the
full committee in a rather short time.
They overturned it by vote of 9 to 8. Is
it your suggestion that based on that
narrow vote which indeed-reversed the
vote of the subcommittee-and if you
want to allocate time considered I
would suspect the subcommittee de-
voted more hours than were devoted
to the amendment in the full commit-
tee. Then the matter came to the floor
where this is hardly being rushed
through. We first considered it in De-
cember 1981, and it has been pendirig
since then. We have debated it here 4
hours today and 31/2 hours yesterday
and there is plenty of time remaining.
We stopped only because no one else
wanted to speak or be heard on the
matter.
So if that is the thrust of the Sena-
tor's argument, that we should not
overturn a 9-8 vote in a senatorial
committee, because we do not know
the substance of this measure, that is
an argument I really would have to
reject, even though the man pro-
pounding it-
Mr. QUAYLE. Will the Senator yield
before he has to reject the proposal?
Mr. CHAFEE. The man proponding
the argument is such a knowledgeable
person that his mere suggestion of it
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S 2134 CONGRESSIONAL RECORD - SENATE
But the Senator from Indiana is cor-
rect, there will be no compromise on
what we agree on If the Chafee lan-
guage is adopted here. The relevant
portion is the same as what is in the
House language, and there will not be
any chance to compromise on that.
But the notion that a conference
will not be called swiftly or if that lan-
guage is passed there is no need for a
conference should be disabused. We
have to have a conference anyway.
Mr. CHAFEE. Let me say, in re-
sponse to that, if I might, yes, there
would be differences. If the Chafee
amendment is adopted there will be
differences in the languages. The Sen-
ator is quite correct when he said they
were not major but minor. I believe
they are minor. I believe the House
still has the language pertaining to
cover provisions. But that is a kind of
matter that indeed can probably be
worked out. I think we have seen ex-
amples of where you never even actu-
ally go to conference, it is worked out
without meeting.
Mr. BIDEN. The point I want to
make is you made reference to holi-
days and times, and whatever, as if
that was an impediment.
Mr. CHAFEE. The difference is that
when you do not have matters of sub-
stance, sometimes they can be worked
out, really, without a conference. The
two chairmen get together and that is
it. But I think the crucial point is if
the Senator from Indiana is suggesting
that there is some magic compromise
that is possible, he should know that
the Senator from Delaware and I have
been working on this matter for some
time. There has never been a compro-
mise suggested. I mean this is lan-
guage that--
Mr. BIDEN. I am prepared to accept
the compromise. I am prepared to con-
sider this language and, quite frankly,
the Gorton language which adds:
The main direction of said pattern of ac-
tivities must be to identify and expose
covert agents.
I think that does go to the heart of
the issue on which we have a disagree-
ment. It is one I do not like as much as
the intent language, but it is one I am
willing to consider, and if we can get a
compromise on it it is better than the
language that exists. It is a significant
change. I am willing to do that. I am
willing to go into that.
But I do not discard that out of
hand because it really does make a sig-
nificant difference. The additional lan-
guage added by Senator GORTON is
very critical, for example. The whole
thing would read then:
The term "pattern of activities" would re-
quire a series of acts with a common pur-
pose or objective. The main direction of said
pattern of activities must be to identify and
expose covert agents.
It thus requires the courts to go
back to the language in which the
reason to believe standard is con-
tained, and if those six elements are
approved that the Senator from
Rhode Island constantly refers to,
which have some real teeth in them,
in order to establish a pattern of activ-
ities, you have to show that it would
be the burden on the State to prove
that the main direction of the pattern
was to identify and to expose.
Therefore, a logical defense would
be "My main direction was not to
expose the name of Charlie Smith, the
agent. My main direction was to un-
cover a mole in the agency."
Then, in effect, the Gorton language
is not quite as strong as "intent" but
the Government essentially has to
prove intent. So it is substantive, it is
real. It is a compromise I would con-
sider. But I do not think the Senator
from Rhode Island can disagree with
the effect of the Gorton compromise.
Mr. QUAYLE. The Senator from
Delaware is saying there is a potential
for compromise. The Gorton language
does not suite the distinguished Sena-
tor from Delaware in all manners, but
it is certainly preferable than leaving
it as is.
I believe that we are in this posture,
as was first brought out by the Sena-
tor from Washington, further ad-
vanced by the Senator from Delaware,
that there is a potential of compro-
mise. Well, certainly there is not going
to be any magic wand waved to get a
compromise between the two distin-
guished Senators from Rhode Island
and Delaware. They have been work-
ing too long and too hard on this issue.
But, at the final hour, as we come
down to and prepare to vote for this,
the Senator from Washington has put
forth what appears to be a reasonable
compromise. At least one element of
this friendly confrontation that has
been going on for months is willing to
accede to the fact that it is a reason-
able compromise.
Mr. BIDEN. I would add, if the Sen-
ator would yield, it is not merely that
it is reasonable, it is a substantive
change in both positions. Keep in
mind the reason to believe standard
would then be modified by a definition
of the pattern of activity that essen-
tially required proof of an intent to do
something other than to write a story
about uncovering a mole in the
agency. The Government would have
to be able to prove, under the Gorton
language, that the main direction, the
primary purpose of the activity that
the writer engaged in was to expose an
agent.
If, in turn, that writer, that newspa-
per person, could come into court and
defend and say, "No, I can establish by
the following 27 witnesses-ask my
editor, ask my wife, ask the CIA agent
I went to, they all know the reason I
was going after this, I didn't care
about John Smith's name, I wanted to
know whether or not there was an ille-
gality going on."
They can offer that proof as a de-
fense and it has to be rebutted by the
State. The State would then have to
say, "No, no. The main direction of
your pattern was to disclose it."
March 16, 1982
That is an additional safeguard.
That is substantive. That is real. I do
not think it goes as far as my intent
language, which I prefer, but it is not,
cosmetic. It is real.
Mr. QUAYLE. Mr. President, I think
we have made progress here.
Mr. CHAFEE. Let me just say this in
response to what the Senator from
Delaware is saying. When we get into
the very problem that has been testi-
fied to by representatives of two sepa-
rate administrations, you get into this
business of the defense saying, "No,
no. That wasn't my main direction.
Ask my wife, ask my publisher, ask my
adviser. My main direction was really
to write a terrific book about the oper-
ations of the U.S. Government. My
secondary direction was to identify
and expose agents, but that wasn't my
principal reason."
That is why you found me having
such reluctance in connection with
this suggestion of Senator GORTON
and, indeed, my refusal to accept it
here.
Mr. BIDEN. I guess the Senator does
not like the Gorton language, is that
what he is trying to say?
Mr. QUAYLE. Will the Senator
yield?
Mr. BIDEN. Yes.
Mr. QUAYLE. Mr. President, I think
I heard the Senator from Rhode
Island, in response to the Senator
from Washington, say that he would
certainly take this language, consider
this proposition of the Senator from
Washington. So we now have one-half
of the debaters saying, "Well, it is a
compromise. I don't particularly like
it, but I will support it." We have the
other half saying, "I am going to take
it under advisement."
I would say we are moving toward a
resolution on this issue. All of us want
an agent identities bill, at least this
Senator does. There may be some Sen-
ators that do not. I do not believe by
opposing the Chafee amendment that
anyone ought to be put in the catego-
ry of not wanting to see this bill
passed as fast as possible. I want to see
it pass for the very reasons that the
Senator from Rhode Island has been
working on this for how long? Two
years, three years?
Mr. CHAFEE. Two and a half years.
Mr. QUAYLE. Two and a half years
of his distinguished career in the U.S.
Senate has been contributed toward
this legislation.
I want to see it pass, but I also want
to see it in the best language possible.
I think we have the makings of a com-
promise, at least we are moving in that
direction.
Mr. CHAFEE. We are not moving
far in that direction.
Mr. QUAYLE. Let us move a_ little
further.
Mr. CHAFEE. This Senator, this ad-
ministration, the prior administration,
both Justice Departments, both U.S.
attorneys, and both heads of the CIA
want legislation that protects first
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March 16, 1988 CONGRESSIONAL RECORD - SENATE
amendment rights and prohibits these
activities that have gone on. So, as I
sold, I would consider It. But that does
trot mean I will take It.
Mr. BIDEN. I think that Is a good
place to and the discussion.
Mr. CHAFi66. I think that is a splen-
did place. But I do not want anybody
walking out of here, or I do not want
any newspaper reporters to say this is
a magnificent solution that is going to
settle all problems. We will review It.
We are always open to reviewing any-
thing.
? Mr. BAUCUS. Mr. President, the ac-
tivities of those who 'Intentionally and
maliciously, expose the Identities of
this Nation's intelligence agents must
be stopped. 'Those who disclose the
names of these agents with the ex-
press intent of jeopardizing the
agents' positions should be held ac-
countable for their actions. Recent,
well publicized examples of such rep-
rehensible conduct have resulted in at
least one tragedy as well as the endan-
germent of the lives of countless num-
bers of our intelligence agents and
their families.
it is absolutely essential for our
Nation to have intelligence informa-
tion which Is timely and accurate. The
United States can collect this vital in-
telligence only through the operations
officers of Its Intelligence agencies.
But the Identities of these loyal
Americans has been shown by the
recent turn of events to be in need of
more stringent protection, particularly
from those who make it their business
to be in the business of naming names.
in an effort to protect our national
security and to stop this reprehensible
conduct, the Senate Judiciary Com-
mittee has reported S. 391, the Intelli-
gence Identities Protection Act of
1981.
While I strongly support the intent
of this legislation, as we draft the spe-
cific provisions we must be.mindful of
the protections provided to individuals
by the Constitution.. Any attempt to
prohibit the dissemination of informa-
tion must be balanced with the Consti-
tutional guarantees of free speech and
freedom of the press. This Issue before' us is not whether we should protect
the CIA. Rather the issue Is whether
we should draft legislation to protect
the CIA that Is careful not to Impinge
upon constitutional guarantees.
The language of 601c, as currently
written in the bill, both protects the
constitutional guarantees of free
speech and sufficiently penalizes those
who undertake to identify covert
agents , "with the intent to impair or
impede the foreign Intelligence activi-
ties of the United States."
The basic rule of constitutional law,
as written by Justice Holmes in 1919 is
"whether the words are used In such
circumstances and are of such , a
nature as to create a clear and present
danger that they will bring about sub-
stantive evils that Congress has a
right to 'prevent" Schenck v. United
States 249 U.S. 47 (1919). In other
words, Congress can only plate restric-
tions on speech where the' damage
from speech is Imminent, where the
danger outweighs the used for free ex-
pression and where the means chosen
to restrict speech are not overbroad.
And that brings us to the crux of the
matter: The means chosen which will
least burden that constitulonal guar-
antee of free speech. The Supreme
Court has defined Congress limits In
Broadrick v. Okfsliosns, 413 U.S. 601,
607 (1942) when It is said:
It has long been recognized that the First
Amendment needs breathing space and that
statutes attempting to restrict or burden
the exeAdm of. Pint Amendment tights
must be narrowly skarn ssrd represent a
considered legislative Judgment that a par-
ticular mode of expression bas given way to
other compelling needs of society.
I believe the Intent standard cur-
rently in. this legislation will satisfy
this requirement and withstand subse-
quent, judicial scrutiny. The standard
adopted in section 601(0) applies crimi-
nal penalties only to deter those who
make It their business to ferret out
and publish the identities of agents..
At the same time, It does not affect
the first amendment rights of those
who disclose the Identities-of agents as
an Integral part of another enterprise
such as news media reporting of intel-
ligence failures or abuses,
academic
studies - of U.S. Goveresaent policies
and programs, or a private organiza-
tion's enforcement of its internal
rules.
The bill erects a number of hurdles
against prosecution, to protect the
journalist and Intelligence critic. The
Government would have to. prove each
of the following elements, beyond a
reasonable doubt:
First. that there was an Intentional
disclosure of Information which did in
fact Identify a covert agent;
Second, that the disclosure was
made to an Individual not authorized
to receive classified information;
Third. that the person who made
the disclosure knew that the informa-
tion disclosed did. In fact identify and
disclose a covert agent;
Fourth. that the person who made
the disclosure knew that the United
States was taking. affirmative meas-
ures to conceal the covert agent's clas-
sified Intelligence affiliation;
Fifth, that the disclosure was made
in the course of an effort to Identify
and expose covert agents; and
Sixth, that the person making the
disclosure did so with the intent of Im-
pairing or impeding the foreign intelli-
gence activities of the United States.
A newspaper reporter, acting in a
professional capacity is not likely to
have engaged In disclosing information
with the requisite intent "to impair or
impede the foreign intelligence activi-
ties of the United States by the fact of
such identification and exposure." In-
stead, such a result would ordinarily
be the side effect of his conduct and
thus outside the mope of this legisla-
tion.
S2135
In my view, the "reason-to-believe..
standard being proposed by the Sena-
tor from Rhode Island does not strike
the correct balance bataseen criminal.
izing the conduct we all agree should
be stopped while at the same time pre-
serving important press protections.
More than 100 Constitutional law ex-
perts share this perspective and be-
lieve the Chafee standard to be uncon-
stitutional. The "reason-to-believe'.
standard Is simply toe broad to fall
within the limit defined in Broadrick
against Oklahoma. it would have a
chilling effect on the press.
It Is this chilling effect that the
intent standard in the committee bill
will effectively avoid, while preserving
much needed sanctions for those who
represent a very real threat to our na-
tional security., I therefore oppose the
Chafee amendment, but strongly sup-
port S. 391, as reported by the Judici-
ary Committee..
? 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 neces-
sary to protect the mar 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 se an attempt
to bolster or protect our covert inteslli-
gence and Counterintelligence agents,
Controversy over this legislation has
focused on the specific latent retpr'lte
ments of the till. The intent standard
in the Chafee amendment "to identify
and expose covert agents," rather than
an intent "to impair or impede the for-
eign intelligence activities of the
United States" establishes an objective
standard that the defendant must be
engaged in a Conscious plan to seek
out and expose undercover Intelligence
operatives where such conduct would
Impair U.S. intelligence efforts.
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-
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
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S 2136
CONGRESSIONAL RECORD - SENATE
encourage all of my colleagues to sup-
port this bill and its goals-*
Mr. DECONCINI. Mr. President, S.
391, the Intelligence Identities Protec-
tion Act of 1981, is an extremely im-
portant bill, and I have been noting its
progress, along with the progress of its
counterpart in the other Chamber,
H.R. 4, with great interest. I strongly
support this bill because I believe that
it is essential that we provide adequate
protection to our intelligence agents.
The pernicious practice of naming
names of U.S. intelligence agents must
be brought to a halt. This practice has
a negative impact on our intelligence
gathering system in two ways; not
only does it compromise the interests
of the United States by hampering the
effectiveness of our intelligence activi-
ties, it also has the more immediate
and tragic effect of placing the lives
and freedom of our individual agents
in the field in danger.
There are, however, other interests
which we must take into account, and
it is one such additional interest which
has led me to support Senator BIDEN's
language, which is currently a part of
S. 391, over the language proposed by
Senator CHAFES. The difference be-
tween these two proposals involves the
standard of proof necessary to obtain
a conviction under section 601(c) of
the bill. Senator CHAFEE'S language
would eliminate the requirement that,
to be guilty of a crime under the bill, a
person must have specific intent "to
impair or impede intelligence activities
by the fact of identification and expo-
sure" of agents. The amendment
would substitute "reason to believe"
for "specific intent," thereby reaching
any investigative reporter who writes
an article which identifies a covert
agent. The individual's lack of purpose
to impair or impede intelligence activi-
ties, and even his lack. of knowledge
that such a result would occur, would
be irrelevant. Thus, the "reason to be-
lieve" standard would be the equiva-
lent of a negligence standard.
I feel that such a standard would
have a substantial chilling effect on
the legitimate activities of the Na-
tion's newspapers and news media, an
effect that could well bring the law
into direct conflict with the first
amendment. Indeed, I have recently
conferred with several representatives
of the new media from my home State
of Arizona, and they indicated to me
that the language authored by Sena-
tor BIDEN would grant them the con-
stitutionally requisite freedom of
action in this area of press activity. I
believe that S. 391, with Senator
BIDEN'S language intact, will allow us.
to stop the purposeful revelation of
our agents' identities which currently
threaten our intelligence activities,
while at the same time allowing this
Nation's news media to continue their
legitimate reporting and investigatory
activities as envisioned by the Bill of
Rights.
I am certain that this bill will meet
the concerns that were expressed by
the Director of the Central Intelli-
gence Agency to the Committee on the
Judiciary, and that it will raise morale
significantly within that agency. I
urge the active support of my col-
leagues for this bill so that we may
enact it into law as quickly as possible.
EXECUTIVE SESSION
Mr. STEVENS. Mr. President, I ask
unanimous consent that the Senate go
into executive session for the purpose
of considering the protocol to the
North Atlantic Treaty -on accession of
Spain; that the treaty be advanced
through its various parliamentary
stages, up to and including the resolu-
tion of ratification; and, that, on the
resolution of ratification, there be the
following time agreement: 1 hour, to
be equally divided between the chair-
man of the Foreign Relations Commit-
tee and the ranking minority member
or their designees; and that no reser-
vations, amendments, declarations, or
understandings be in order; and that,
following conclusion of that treaty,
the Senate turn to the nomination of
Max L. Friedersdorf, of Florida to be
consular officer and secretary in the
Diplomatic Service of the United
States, under a time agreement as fol-
lows: 30 minutes to be equally divided
between the chairman of the Foreign
Relations Committee and the ranking
minority member or their designees
and that, following that, the Senate
turn to the confirmation of Calendar
Nos. 616 and 667.
Mr. ROBERT C. BYRD. Mr. Presi-
dent, reserving the right to object, I
shall not object. I am authorized by
Mr. PELL to proceed on the basis of the
time agreements that have been stated
by the distinguished assistant Republi-
can leader, so there is no objection on
this side.
Mr. STEVENS. Is the time agree-
ment agreed to, Mr. President?
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
PROTOCOL TO THE NORTH AT-
LANTIC TREATY ON THE AC-
CESSION OF SPAIN
Mr. STEVENS. Mr. President, I now
ask that the Senate go into executive
session pursuant to that agreement
and that the Senate turn to the con-
sideration of the protocol under the
agreement.
The PRESIDING OFFICER. With-
out objection, it is so ordered; and
without objection, the treaty will be
considered as having passed through
its various parliamentary stages up to
and including the presentation of the
resolution of ratification, which the
clerk will state.
The assistant legislative clerk read
as follows:
Resolved, (two-thirds of the Senators pres-
ent concurring therein), That the Senate
advise and consent to the ratification of the
Protocol to the North Atlantic Treaty on
March 16, 1982
the Accession of Spain, signed in Brussels
on December 10, 1981, on behalf of the
United States and the other parties to the
North Atlantic Treaty.
Mr. PERCY. Mr. President, I see in
the Chamber the distinguished Sena-
tor from Rhode Island (Mr. PELL), the
ranking minority member of the For-
eign Relations Committee, and today,
with a great sense of personal pleasure
and privilege, I call upon the Senate to
discharge a very significant responsi-
bility.
In these time when we all spend our
days grappling with international
crises and intractable domestic eco-
nomic problems, it is a lift to the spir-
its to turn to the business of Senate
advise and consent to the ratification
of the protocol to the North Atlantic
Treaty on the accession of Spain.
On November 26, 1981, the Spanish
Senate authorized the Government of
Spain to seek an invitation to join
NATO. In Brussels, on December 10,
1981, the Foreign Ministers of NATO
members signed the protocol of Span-
ish accession to the North Atlantic
Treaty. President Reagan on January
26, 1982, transmitted the protocol to
the Senate for its advise and consent
to ratification, calling Spain's rededi-
cation to the values and purposes un-
derlying the North Atlantic Treaty
and her decision to seek full partner-
ship in NATO "historic developments
and a source of inspiration in these
troubles times." The Committee on
Foreign Relations considered the pro-
tocol, reporting it to the full Senate
favorably and without reservation on
March 9, recommending that the
Senate give its advise and consent to
ratification. Today we have a unique
opportunity to show our support for
the new Spanish democracy, signifi-
cantly strengthen the North Atlantic
Alliance, and demonstrate the vitality
of common Western values and insti-
tutions.
Spain's transition to democracy is an
example of what a people determined
to control its own destiny can accom-
plish. The death of General Franco in
1975 signaled the beginning of a new
era in Spanish history. Since that
time, Spain has made extraordinary
progress in the restoration and
strengthening of her democratic insti-
tutions. Senate endorsement of Span-
ish entry into NATO would confirm
American support for this process.
U.S. relations with Spain have, for
many years, been characterized by a
deep mutual respect and understand-
ing. The United States places great im-
portance on continuing this climate of
cooperation. Since 1953, the United
States and Spain have enjoyed a close
bilateral military relationship, and
Spain has made important contribu-
tions to Western security. Spanish
NATO membership will broaden this
bilateral cooperation and, at the same
time, substantially enhance Western
unity and security.
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