INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981

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• Publication Date: March 15, 1982
• Content Type: OPEN SOURCE

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CONGRESSIONAL RECORD - SENATE March 15, 1982
ful forces of disunity. When the Whig
party finally collapsed it caused a
major realignment in American poli-
tics and contributed to the coming of a
terrible Civil War that divided this
nation in two. But the events of this
period between the birth and demise
of the Whig party will be the subjects
of my later addresses in this series.
These were the turbulent years when
the Senate would grow, in the words
of the commemorative booklet on the
Old Senate Chamber, "from a small
council to the primary forum for the
great national debates of the mid-nine-
teenth century." ss
Mr. President, I ask unanimous con-
sent to include notes to "Censure Of
Andrew Jackson, 1833-1837.'-
There being no objection, the notes
were ordered to be printed in the
Rzooan, as follows:
Novas To "Csnauu Or ANDasw JACKSON,
1833-1837"
'Olyndon Van Deusen, The Jacksonian
Era, 1828-1848 (New York: Harper and Row.
1959), 80-81.
s Peter Temin, The Jacksonian Economy
(New York: W. Vf. Norton. 1969).
'Van Deuset4.The Jacksonian Era, 83.
'Register of Debates in Congress, 23rd
Congress, lst seas.. 27.
'Ibed, 37.
'Charles Francis Adams..ed.,.Memoirs of
John Quincy Adams, Vol. I8 (Freeport, New
York: Books for Ubrartes Press, 1969. 1874),
51.
I Register of Debates, 23rd Congress, let
seas? 5"9.
' Ibid.. 89-94.
'laid, 1172.
"Margaret L. Colt, John C Calhoun,
American Portrait(Boston: Houghton Miff-
lin, 1950). 263-265, Irving H. Bartlett,
Daniel Webster (New York W. W. Norton.
1978).144-145.
" Olyndon Van Denser. "The ? Whig
Party." and Michael F. Holt, "The Demo-
crane Party. 1128-1309," in Arthur M.
Schlesinger, Jr., ed.. History of U.S, Politi-
cal Parties, Vol. I (New York: R. R. Bowser.
1973),333-399., 570-508.
"Thorne art Benton. Thirty Years'
View: or, it, History of the Working of the
Americas Government for Thirty Years.
From 1820 to 1850 (New York: D. Appleton..
1883). 400-401
"Charles M. Wiltse. ed.. The Papers of
Daniel Webster, Correspondence, 1830-1834,
Vol. 3 (Hanover. University Press of New
England, 1977). 288; Bartlett. Daniel Web-
ster, 3-11; John F. Kennedy, Pro iles in
Courage (New York: Harper and Row, 1957).
64.
"Benton. Thirty Years' Visu4 420-421.
"Adams. Memoirs of John Quincy Adams.
Vol. I$ its.
"Register of Debates, 23rd Congress, 1st
sess., 1187. t
" z Benton, Thirty Years' View, 529-49.
"Register of Debates, 23rd Congress, 1st
secs., 1319.
"Ibid., 1335.
s"Journal of the Senate of the United
States, 23rd Congress, lot seas., 226-228. .
' I Congressional quarterly's Guide to Con-
gress (Washington: Congressional Quarter-
ly, 1978),582-523.
"Oliver Perry Chitwood, John Tyler,
Champion of the Old South (New York: D.
Appleton, 1939), 138.
"Henry A. Wise, Seven Decades of Union,
the Humanities, and Materialism, Illustrat-
ed by a Memoir of John Tyler (Philadelphia:
J B. Lippincott. 1881). 142.
84Benton. Thirty Years' Visor, no.
"Ibid. 727.
"Register of Debates, 24th Congress, 2d
seas.. 500.
"Benton, Thirty Years' View, 550.
"Claude Bowers, Party Battles of the
Jackson Period. (Boston: Houghton Mifflin,
1922). 470; Wise. Seven Decades of Union.
143.
s. Wise, Seven Decades of Union, 143.
"Register of Debate; 24th Congress, 3d
sess., 505-606.
"Bowers. Party Battles of the Jackson
Period, 471.
"Elbert B. Smith, Magnificent Missouri-
an. The Lila of Thomas Hart Benton (Phila-
delphia: J. B. 21pplnoott.195$), 166.
"Olyndon Van Deusen, The LUe of Henry
Clay, (Boston: Little, Brown. 1937), 276-300.
"Daniel Walker Howe. The Political C U1.
ture of the American Whigs (Chicago: Uni-
versity of Chicago Press,-979), 11-22.
"Senate Commission on Art and Antiqui-
ties, The Senate Chamber, 1810-1859 (Wash.
ington: The Government Printing Office.
1976). 8.
BUSINESS
e PRESIDING OFFICER (Mr.
>. Is there further morning
If not, morning business is
PROTECTION ACT OF 1981
The PRESIDING OFFICER. The
sit will now report the pending busi-
n The legislative clerk read as follows;
A bill (S. $91) to mend the National Se-
curity Act of 1947 to prohibit the unauthor-
ised disclosure of information identifying
certain United States intelligence officers.
agents, informants, and sources and to
direct the President to establish procedures
to protect the secrecy of these intelligence
The Senate resumed consideration
of the bill,
Mr. ROBERT C. BYRD. Mr. Presi-
dent. I suggest the absence of a
quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. I,EAHY. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. LEAHY. M$,. President, during
earlier debate on S. 391, the Intelli-
gence Identities' Protection Act, I
raised the question of whether the Su-
preme Court had ever upheld a statute
in the first amendment area where the
only criminal intent required was a
"reason to believe" standard which
the Justice Department has described
as a negligence standard. The propo-
nents of the "reason to believe"atand-
ard have not cited any Supreme Court
precedent upholding a statute pro-
scribing' activity In the first amend-
ment area where a requirement of bad
purpose was not included in the stat-
ute. Senator Cm-taa did cite four
lower court cases which discussed a
"reason to believe" standard in nation-
al security crimes.
When I earlier talked about this, Mr.
President, I expressed my concern
about dangers to the first amendment
and stated that in my years in public
life, both as a prosecutor and U.S. Sen-
ator, the part of the Constitution
which has guided me the most, and
certainly guided my consideration the
most, has been the first amendment.
I feel that it is by far, the most im-
portant part of. our Constitution. Not
only does everything else pale beside
the first amendment. but it is ques-
tionable whether the rest of the Con-
stitution could last long without the.
first amendment.
So I was interested in the cases cited
by Senator Cuam. I was interested in
whether a negligence standard had
been applied in a first amendment
case. If so, then I would be quite con-
cerned that we might see a quick ero.
sion of the first amendment.
I found that none' of the cases really
addressed the issue before the Senate.
Three of the does involved no first
amendment claims whatsoever. Two of
these cases concerned' sabotage during
? time of war or national emergency.
The third involved a related crime of
producing defective war material
during time of : war or national emer-
gency. Clearly, Feeaons engaged in
blasting high electric power-
lines , burning ROTO buildings, or
knowingly supplyi t the Army with
defective airplane pelrts cannot be
compared to a de r reporter le-
gitimately investiga abuses by the
intelligence community.
Only one of the tea cited last week
by Senator CUM the Progressive
case, involved any fiat amendment
rights. That can involved no prosecu-
tion under the "reason to believe"
standard. Rather, the case was a civil
action seeking to enjoin the Progres-
sive magazine from publishing idateri-
al classified as "restricted data" under
the Atomic Energy Act. While the in-
junction was entered at the district
court level, It should be noted that the
Government dropped . the case on
appeal, the magazine published the
data, and no prosecution under the
"reason to believe" standard ensued.
I repeat what I said earlier. This
issue is too serious to afford the
Senate the luxury of acing just how
close to the constitutional limit we can
go without crossing over the line.
I am getting. very concerned, Mr.
President, that in matter after matter
coming before the Senate of late, we
try to see how far we can push the
Constitution.,
I see more and more the position
taken that we really should not act on
constitutional issues here, but simply
pass a law and let the Supreme Court
straighten out whatever mess we
might create.
Mr. President, we have a duty to pre-
serve and protect the Constitution,
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Mr. President, at this time, I suggest
the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The bill clerk proceeded to call the
roll.
Mr. CHAFEE. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, It is so ordered.
AMENDMENT NO. 1256
Mr. CHAFEE. Mr. President, I ask
unanimous consent that two-more co-
sponsors be added to my amendment:
Senator MCCLURE of Idaho and Sena-
tor MURKOwsKI of Alaska.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. CHAFEE. Mr. President, I wish
to address certain statements that
have been made in the course of the
debate on this bill, which has covered
a period, intermittently, of the last 2
weeks. The matter which we are ad-
dressing is the amendment which I
submitted, amendment No. 1256. That
is the pending matter on the floor.
POSITION OF THE ADMINISTRATION
At various times during the course
of consideration of the identities legis-
lation and my amendment, it has been
suggested that the committee ver-
sion-not my amendment but the com-
mittee version-is acceptable to the
administration. In support of this con-
tention, proponents of the committee
version have introduced into the
RECORD a letter dated July 15, 1981.
That letter was from the Director of
the Central Intelligence Agency, Mr.
Casey, to Chairman BoLAND of the
House Intelligence Committee. In this
letter, Director Casey declared his
willingness to support what was then
the House Intelligence Committee ver-
sion of the legislation. The proponents
of the Judiciary Committee version-
which is on the floor here today-have
cited this letter but have consistently
failed to note the fact that the Direc-
tor stressed that the Chafee-Jackson
version, or the amendment on the
floor today, is preferable.
Let me quote from the letter. After
expressing his willingness to support
what was then the House Intelligence
Committee's version of the bill, Direc-
tor Casey said:
I must emphasize, however, that the ad-
ministrations preference for S. 391, the
Senate version of the Identities Bill, re-
mains unchanged.
What he is referring to there is the
bill as originally introduced, which. of
course, is the amendment which I
have on the floor today. It should be
emphasized, thus, that when the Di-
rector was saying the House language
was acceptable, it was clearly not the
preference of the administration.
Mr. President, I ask unanimous con-
sent that Director Casey's letter of
July 15, 1981, to the chairman of the
House Intelligence Committee, Repre-
sentative BOLAND, be printed in the
RECORD at this time.
There being no objection, the letter
was ordered to be printed in the
RECORD, as follows:
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., July 15, 1981.
Hon. EDWARD P. BOLAND,
Chairman, Permanent Select Committee on
Intelligence, House of Representatives,
Washington, D.C.
DEAR MR. CHAIRMAN: I have had my Gen-
eral Counsel look carefully at the proposed
amendment to H.R. 4 which you sent to us
on 24 June. As you will note from the en-
closed memorandum, he believes that the
proposed amendment may be- deficient in
certain respects and that it could under-
mine the effectiveness of the legislation. He
has set forth an alternative which would be
acceptable under certain conditions. We
would be prepared to support this alterna-
tive, which I understand is already familar
to members and staff of your Committee, if
Its adoption would ensure House floor con-
sideration of the Identities Bill directly fol-
lowing the reporting of H.R. 4 from your
Committee. I must emphasize, however,
that the Administration's preference for S.
391, the Senate version of the Identities
Bill, remains unchanged.
I hope that you have had the opportunity
to read the Supreme Court's opinion in
Haig v. Agee, which was handed down on 29
June. This opinion goes a long way toward
dispelling any residual concerns about the
constitutionality of the Identities legisla-
tion. I believe we must avoid any further
delay which would jeopardize our mutual
goal of securing enactment of the Identities
Bill in this session of Congress. I hope,
therefore, that the Permanent Select Com-
mittee on Intelligence will move forward ex-
peditiously in reporting H.R. 4 favorably.
Sincerely,
WILLIAM J. CASEY,
Director of Central Intelligence.
Mr. CHAFEE. Mr. President, during
the debate on this bill on March 4 of
this year, the Senator from Pennsylva-
nia (Mr. SPECTER) declared that he had
met with Director Casey twice and
that Director Casey stated that he
found the Judiciary Committee ver-
sion of the bill to be acceptable. I re-
ceived a letter from Mr. Casey dated
March 12, 1981, which I believe pro-
vides the definitive statement of the
intelligence community's position on
the indentities bill. I wish to read Mr.
Casey's letter at this time. This is the
intelligence community's position on
this legislation. The letter is addressed
to me.
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., March 12, 1982.
Hon. JOHN H. CHAFEE,
U.S. Senate,
Washington, D.C.
DEAR SENATOR CHAFEE: It has been
brought to my attention that, during the
Senate's consideration of the Intelligence
Identities Protection Act on 4 March 1982,
Senator Specter declared he had met with
me twice, and he knew that I find the Judi-
ciary Committee version of S. 391 to be ac-
ceptable.
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; but It
should be clear that the Intelligence Com-
munity firmly supports the Attorney Gener-
al and the President in their belief that the
verson of subsection 601(c) passed by the
House of Representatives and embodied in
March 15, 1982
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,
Director of Central Intelligence.
At the same time, Mr. President, I
ask unanimous consent that President
Reagan's letter of February 3, 1982, to
which Director Casey refers, also be
printed in the RECORD at this time.
Before that goes in, Mr. President, I
shall quote just a few words from it:
Last September the House of Representa-
tives overwhelmingly passed the Adminis-
tration-supported version of the Intelligence
Identities Protection Act. The Senate is
soon to take up consideration of this legisla-
tion, and you will have before you two ver-
sions. While I believe that both versions are
fully protective of constitutional guaran-
tees, Attorney General Smith and I firmly
believe that the original version, first Intro-
duced by Senator Chafee and others, is far
more likely to result in an effective law that
could lead to successful prosecution.
I strongly urge you and each of your col-
leagues to support the carefully-crafted
Chafee-Jackson amendment to S. 391. I
cannot overemphasize the importance of
this legislation.
That is signed by Ronald Reagan
and this letter, which was also sent to
the minority leader, was addressed to
the majority leader (Mr. BAKER) on
February 3, 1982.
There being no objection, the letter
was ordered to be printed in the
RECORD, as follows:
THE WHITE HOUSE,
Washington, February 3, 1982.
Hon. HOWARD H. BAKER,
Majority Leader,
U.S Senate,
Washington, D.C.
DEAR SENATOR BAKER: Legislation to make
criminal the unauthorized disclosure of the
names of our intelligence officers remains
the cornerstone for the improvement of our
intelligence capabilities, a goal that I know
we share. Nothing has been more damaging
to this effort than the pernicious disclosures
of the names of officers whom we send
abroad on dangerous and difficult assign-
ments. Unfortunately, these disclosures con-
tinue with impunity, endangering lives, seri-
ously impairing the effectiveness of our
clandestine operations, and adversely affect-
ing morale within our intelligence agencies.
Last September the House of Representa-
tives overwhelmingly passed the Adminis-
tration-supported version of the Intelligence
Identities Protection Act. The Senate is
soon to take up consideration of this legisla-
tion, and you will have before you two ver-
sions. While I believe that both versions are
fully protective of constitutional guaran-
tees, Attorney General Smith and I firmly
believe that the original version, first intro-
duced by Senator Chaffee and others, is far
more likely to result in an effective law that
could lead to successful prosecution.
I strongly urge you and each of your col-
leagues to support the carefully-crafted
Chafee-Jackson amendment to S. 391. I
cannot overemphasize the importance of
this legislation.
Sincerely,
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March 15, 1982 CONGRESSIONAL RECORD -- SENATE
Mr. CHAFEE. Mr. President, there
can be no question as to the position
of the President of the United States,
the Justice Department, or the intelli-
gence community with respect to the
Chafee-Jackson amendment to this
bill, the amendment we are now con-
sidering.
They all prefer it. They want it to
pass the Senate. They want the
Chafee-Jackson language to be subsec-
tion 601(c) of S. 391.
DIFFERENCE BETWEEN VERSIONS
Mr. President, we have had consider-
able debate on this matter, principally
led by the Senator from Delaware. On
February 25, 1982, some statements
were made by that distinguished Sena-
tor in which he implied there really
was no difference between the intent
language and the reason to believe
language as it applied to the effective-
ness of this legislation in securing a
successful prosecution. I read from
Senator BIDEN's statement in the
RECoRD:
The Senator says we have these guys who
are publishing these bulletins saying, "Well,
I intended to help America when I disclosed
the name of Joe Doakes, who is an agent of
the CIA, so don't find me guilty because, al-
though I intended something, I did not
intend to hurt, I intended to help."
I submit that under the reason to believe
standard, he can say the same thing.
In other words, Senator BmsN Is
now taking issue with the amendment
I have on the floor-namely, the
reason to believe language-and he
suggests, as we learn through this Quo-
tation, that he thinks a defendant can
successfully escape prosecution by
saying that he really did not intend to
do any harm, that he really intended
to help the intelligence community.
Senator BIDEN continues:
I submit that under the reason to believe
standard, he-
Meaning the accused-
can say the same thing. He can stand before
the jury and say, "Ladies and gentlemen. I
had reason to believe this would help Amer-
ica when I disclosed the name of Joe
Doaks"-
namely, the CIA agent.
That completes the quotation from
the record of February 25 of this year.
Mr. President, the implication of the
statement by the distinguished Sena-
tor from Delaware is that the reason
to believe standard is really just as
subjective as the intent to impair or
impede standard. A defendant can
claim that he had no reason to believe
his disclosure would impair or impede
U.S. intelligence activities.
Of course, a defendant can claim he
had no reason toy believe, just as he
can claim he had no intent to harm
the intelligence activities of the
United States. However, that is not
the essential point. A defendant can
claim anything, any time.
The point is this: Under the subjec-
tive language-namely, the intent lan-
guage which is in the committee bill-
a jury must find that the defendant
actually possessed the requisite intent
to impair or impede intelligence activi-
ties of tile- United States. The jury has
to find that intent in the breast of the
defendant.
Under the reason to believe lan-
guage, which we have in my amend-
ment, the jury can determine that
under all the relevant facts and cir-
cumstances, a reasonable person would
have had reason to believe that his
disclosure would impair or impede the
intelligence activities of the United
States. That is the objective standard.
The reason we consider the reason to
believe language to be objective is that
you can look at the facts and ask, "Is
this what a reasonable person would
have had cause to believe?"
Thus, Mr. President, the reason to
believe standard takes the jury out of
the breast of the defendant, out of the
intent to impair and impede, and re-
quires the jury to concentrate on the
objective facts of the matter. Surely,
this is an important difference.
Furthermore, the distinguished Sen-
ator from Delaware has stated that
both versions of the bill can get the
job done. He says:
Why take a chance with the Chafee-Jack-
son amendment, which is more likely to be
declared unconstitutional?
I do not agree that botli versions will
get the job done. There are serious
questions as to whether the subjective
intent standard in the committee bill
will be effective. This issue, as to
whether Senator BmEN's specific
intent standard would be effective
from a prosecutorial standpoint, was
raised before the House Intelligence
Committee last year, on April 7, 1981,
when Mr. Richard Willard, counsel to
the Attorney General for Intelligence
Policy, stated as follows:
The . The specific intent requirement could
serv to confuse the issues to the point
where the Government could be unable to
establish the requisite intent beyond a rea-
sonable doubt in prosecutions brought
under the statute.
This is a representative of the Attor-
ney General's speaking, who was coun-
sel to the Attorney General of the
United States. This is what he says.
Mr. Richard Willard believes, as we
note here, that the intent requirement
could serve to confuse the issue, to the
point where the Government would be
unable to establish the intent beyond
a reasonable doubt.
Mr. Willard dismissed the intent pro-
vision. Then he moves to the bill that
was originally introduced which con-
tains my language. He says:
The Senate counterpart of this bill. S. 391,
alleviates these potential problems by re-
quiring only that a defendant be shown to
have had "reason to believe," rather than
specific intent, that the disclosure would
impair or impede U.S. intelligence activities.
This objective standard is preferable to the
Justice Department since it would relieve
the difficult burden otherwise imposed on
the Government to prove the defendant
acted with an evil state of mind. This type
of "reason to believe" standard has been
found by the courts to be valid and has sur-
vived constitutionally-based charges of over.
S2073
breadth and vagueness. See, e.g., United
States v. Bishop 555 F.2d 771 (10th Cir.
1977); SchmeUer v. United States 143 F.2d
544 (6th Cir. 1944). We believe this standard
would be more easily applied and sustained
by the courts.
That concludes the statement by
Mr. Willard.
So this reason-to-believe standard is
nothing new. It is not something we
have plucked from the air. This is a
standard that exists in current stat-
utes, particularly statutes dealing with
espionage and related activities, and it
has been held constitutional. It has
been held constitutional by surviving
the challenges both on overbreadth
and vagueness.
Mr. President, I believe it is extreme-
ly important that Congress pass an ef-
fective bill.
(Mr. MATI'INGLY assumed the
chair.)
Mr. CHAFEE. The language in the
Senate Judiciary Committee's version
has already been rejected by the
House of Representatives. The lan-
guage in 601(c) that we are consider.
ing here in the Chamber came from
the Senate Judiciary Committee. It is
the exact same language that came
onto the floor of the House of Repre.
sentatives from committee. The lan-
guage was changed on the House floor.
It was rejected, and in place of it was
substituted the very language I have
in my amendment. That language
passed overwhelmingly in the House,
354 to 56 last fall.
If we want a bill and if we want to
deal with this problem, then let us
adopt the amendment I am proposing.
Make part of the bill, pass the bill,
and the the bills from the Senate and
the House of Representatives will be
practibally the same. There will be no
long drawn out conference. There will
be no problems. We will have legisla-
tion. We will stop "naming names.'- If
we reject my amendment and adopt
the committee language, then we have.
problems resolving this difference
with the House. of Representatives.
Then I could not make any prediction
as to whether we will indeed have leg-
islation on this subject this year or
any year.
All of us have seen situations arise
where different languages are passed
in each House, there are long delays,
and sometimes the differences are
never reconciled. I have been through
conferences where conferees never
came to a conclusion.
So if we truly want legislation, I
urge the support of my amendment.
It is not true that the reason to be-
lieve standard is more likely to be de-
clared unconstitutional. The Supreme
Court has spoken on the issue in the
Agee case. The court specifically said
that unauthorized disclosures of intel-
ligence identities "are clearly not pro-
tected by the Constitution."
The Carter and Reagan Justice De-
partment have both favored the objec.
tive reason-to-believe standard. The
reason to believe standard is contained
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S 2074 CONGRESSIONAL RECORD - SENATE
in a number of Federal criminal stat-
utes and had been upheld by the
courts.
At this point I ask unanimous con-
sent to have printed in the RECORD the
following items:
One, a listing of Federal criminal
statutes employing reason to believe,
and we have here nine separate ones
in which the reason-to-believe stand-
ard is there. I will not give the United
States Code numbers. They are all in
18 U.S.C. except for the last one which
is 42 U.S.C. But they deal with gather-
ing defense information, duplication
of defense documents or objects, re-
ceiving defense information, transmit-
ting defense information, unauthor-
ized possession of defense information,
providing defense information to aid
foreign governments, destruction of
defense facilities, obstructing defense
production, and communication of re-
stricted data.
All these statutes have the language
utilizing the reason-to-believe stand-
ard. Sometimes it is prefaced by the
phrase "with intent or reason to be-
lieve." It does not mean "and reason to
believe." It means one or the other.
The first statute refers to gathering
defense information; the next one pro-
hibits duplication of defense docu-
ments or objects. They have the intent
or reason-to-believe language.
The next statute refers to receiving
defense information. The language
talks about knowing or having reason
to believe that it could be used con-
trary to the provisions of the statute.
Notice there is no intent language
whatever in there. Knowing or having
reason to believe is the language.
The next statue deals with transmit-
ting defense information and has only
the reason to believe standard. There
is no intent standard.
Another statute prohibits the unau-
thorized possession of defense infor-
mation, which the possessor has
reason to believe could be used to the
injury of the United States. There is
nothing about intent. Instead it re-
quires the reason to believe standard
for prosecution.
The destruction of defense facilities
legislation, 18 United States Code
2153, section (a), states that the de-
fendant must have the intent or
reason to believe that his act may
injure the United States. Again, in 18
United States Code 2154, obstructing
defense production, there is the same
standard: Anyone with intent or
reason to believe his act may injure
the United States.
In 42 United States Code 2274(b),
communication of restricted data, the
act states that whoever communicates
restricted data with reason to believe-
such data will be utilized to injure the
United States shall be punished.
The second group of documents is a
review of Federal court cases involving
the reason to believe standard. I shall
just quote one: Schmeller v. United
States (Sixth circuit, 1944).
Schmeller and others were convicted
of violating a Federal statute which
reads in pertinent part:
"When the United States is at war * *
This is in a war situation, but the
pertinent point is the following lan-
guage:
* * * whoever, with reason to believe that
his act may injure, interfere with, or ob-
struct the United States
The Court of Appeals affirmed the
sufficiency of the indictment under
the statute.
Quoting now the sixth circuit:
Under the latter part of this statute the
specific Intent to injure or Interfere with
the war effort of the United States or any
associate nation need not be proved.
There is no necessity to prove intent.
The act of willfully making war material in
a defective manner, with reason to believe
that the act may injure or interfere with
governmental war measures, constitutes the
offense.
And the court continued:
The appellants are clearly apprised of the
specific offense charged, for the casting is
identified and its heat number gives the ap-
pellants the precise date.
Mr. President, next are highlights of
Supreme Court cases dealing with the
subject of governmental interests re-
stricting the first amendment in cer-
tain, situations.
I Wish to discuss briefly Haig v. Agee,
101 Supreme Court 2766, which was
just decided last year. It is very analo-
gous to the first amendment argu-
ments that are being raised on the
floor here today.
In that case, Philip Agee, an Ameri-
can citizen and a former Central Intel-
ligence Agency employee, engaged in
activities abroad that resulted in iden-
tification of alleged undercover CIA
officers and intelligence sources in for-
eign countries. In accordance with a
State Department regulation issued
under the Passport Act of 1926, the
Secretary of State revoked Mr. Agee's
passport on the ground that he was
causing serious damage to the national
security of the United States. The Su-
preme Court upheld the revocation as
consistent with the Constitution and
the Passport Act.
And this is what the Chief Justice
said with regard to the first amend-
ment:
Assuming arguendo that First Amend-
ment protections reach beyond our national
boundaries, Agee's First Amendment claim
has no foundation. The revocation of Agee's
passport rests in part on the content of his
speech: specifically, his repeated disclosures
of intelligence operations and names of in-
telligence personnel. Long ago, however,
this Court recognized that "No one would
question but that -a government might pre-
vent actual obstruction to its recruiting
service or the publication of the sailing
dates of transports or the number and loca-
tion of its troops."
The Chief Justice continues:
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
March 15, 1982
fact that Agee is also engaged in criticism of
the Government does not render his con-
duct beyond the reach of the law. (Empha-
sis added.)
That is the end of Chief Justice
Burger's quote.
Mr. President, I ask unanimous con-
sent that those articles be printed in
the RECORD.
There being no objection, the mate-
rial was ordered to be printed in the
"RECORD, as follows:
CURRENT FEDERAL CRIMINAL STATUTES EM-
PLOYING "REASON To BELIEVE" SCIENTER
STANDARD
Nine separate federal criminal offenses in-
clude the "reason to believe" scienter'stand-
ard:
(1) 18 U.S.C. 793(a): Gathering defense in-
formation;
(2) 18 U.S.C. 793(b): Duplication of de-
fense documents or objects;
(3) 18 U.S.C. 793(c): Receiving defense in-
formation;
(4) 18 U.S.C. 793(d): Transmitting defense
information;
(5) 18 U.S.C. 793(e): Unauthorized posses-
sion of defense information;
(6) 18 U.S.C. 794(a): Providing defense in-
formation to aid foreign government;
(7) 18 U.S.C. 2153: Destruction of defense
facilities;
(8) 18 U.S.C. 2154: Obstructing defense
production;
49) 42 U.S.C. 2274: Communication of re-
stricted data.
18 U.S.C. 793(a): Gathering defense infor-
mation:
Whoever, for the purpose of obtaining in-
formation respecting the national defense
with intent or reason to believe that the in-
formation is to be used to the injury of the
United States, or to the advantage of any
foreign nation, goes upon, enters, flies over,
or otherwise obtains information concerning
any vessel, aircraft, work of defense, navy
yard, naval station, submarine base, fueling
station, fort, battery, torpedo station, dock-
yard, canal, railroad, arsenal, camp, factory,
mine, telegraph, telephone, wireless, or
signal station, building office, research labo-
ratory or station or other place connected
with the national defense owned or con-
structed, or in progress of construction by
the United States or under the control of
the United States, or of any of its officers,
departments, or agencies, or within the ex-
clusive jurisdiction of the United States, or
any place in which any vessel, aircraft,
arms, munitions, or other materials or in-
struments for use in time of war are being
made, prepared, repaired, stored, or are the
subject of research or development, under
any contract or agreement with the United
States, or any department or agency there-
of, or with any person on behalf of the
United States, or otherwise on behalf of the
United States, or any prohibited place so
designated by the President by proclama-
tion in time of war or in case of national
emergency in which anything for the use of
the Army, Navy, or Air Force is being pre-
pared or constructed or stored, information
as to which prohibited place the President
has determined would be prejudicial to the
national defense; or ... shall be fined not
more than $10,000 or imprisoned not more
than ten years or both.
18 U.S.C. 793(b): Duplication of defense
documents or objects:
Whoever, for the purpose aforesaid, and
with like intent or reason to believe, copies,
takes, makes, or obtains, or attempts to
copy, take, make, or obtain, any sketch,
photograph, photographic negative, blue-
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CONGRESSIONAL RECORD - SENATE 82076
print, plan, map, model, instrument, appli-
ance, document, writing, or note of any-
thing connected with the national defense;
or ... shall be fined not more than $10,000
or imprisoned not more than ten years, or
both.
18 U.S.C. 793(c): Receiving defense infor-
mation:
Whoever, for the purpose aforesaid, re-
ceives or obtains or agrees or attempts to re-
ceive or obtain from any person, or from
any source whatever, any document, writ-
ing, code book, signal book, sketch, photo-
graph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or
note, of anything connected with the na-
tional defense, knowing or having reason to
believe at the time he receives or obtains, or
agrees or attempts to receive or obtain it,
that it has been or will be obtained, taken,
made, or disposed of by any person contrary
to the provisions of this chapter, or
shall be fined not more than $10,000 or
imprisoned not more than ten years or both.
18 U.S.C. 793(d): Transmitting defense in-
formation:
Whoever, lawfully having possession of,
access to, control over, or being entrusted
with any document, writing, code -book,
signal book, sketch, photograph, photo-
graphic negative, blueprint, plan, map,
model, instrument, appliance, or note relat-
ing to the national defense, or information
relating to the national defense which infor-
mation the possessor has reason to believe
could be used to the injury of the United
States or to the advantage,of any foreign
nation, willfully communicates, delivers,
transmits or causes to be communicated, de-
livered, or transmitted or attempts to com-
municate, deliver, transmit or cause to be
communicated, delivered or transmitted the
same to any person not entitled to receive it,
or willfully retains the same and falls to de-
liver it on demand to the officer or employ-
ee of the United States entitled to receive it;
or ... shall be fined not more than $10,000
or imprisoned not more than. ten years or
both.
18 U.S.C. 793(e): Unauthorized possession
of defense information:
Whoever having unauthorized possession
of, access to, or control over any document,
writing, code book, signal book, sketch, pho-
tograph, photographic negative, blueprint,
plan, map, model, instrument, appliance, or
note relating to the national defense, or in-
formation relating to the national defense
which information the possessor has reason
to believe could be used to the injury of the
United States or to the advantage of any
foreign nation, willfully communicates, de-
livers, transmits or causes to be communi.
cated, delivered, or transmitted, or attempts
to communicate, deliver, transmit or cause
to be communicated, delivered, or transmit-
ted the same to any person not entitled to
receive it, or willfully retains the same and
falls to deliver it to the officer or employee
of the United States entitled to receive it;
or ... shall be fined not more than $10,000
or imprisoned not more than ten years, or
both.
18 U.S.C. 2153: Destruction of defense
faciliCies:
(a) Whoever, when the United States is at
war, or in times of national emergency as
declared by the President or by the Con-
gress', with intent to injure, interfere with,
or obstruct the United States or any asso-
ciate nation in preparing for or carrying on
the war or defense activities, or, with reason
to believe that his act may injure, interfere
with, or obstruct the United States or any
associate nation in preparing for or carrying
on the war or defense activities, willfully in-
lures, destroys, contaminates or infects, or
attempts to so injure, destroy, contaminate
or infect any war material, war premises, or
war utilities, shall be fined not more than
$10,000 or imprisoned not more than thirty
years, or both.
(b) If two or more persons conspire to vio-
late -this. section, and one or more of such
persons do any act to effect the object of
the conspiracy, each of the parties to such
conspiracy shall be punished as provided in
subsection (a) of this section.
18 U.S.C. 2154: Obstructing defense pro-
duction:
(a) Whoever, when the United States is at
war, or in times of national emergency as
declared by the President or by the Con-
gress, with Intent to Injure, interfere with,
or obstruct the United States or any asso-
ciate nation in preparing for or carrying on
the war or defense activities, or, with reason
to believe that his act may injure, Interfere
with, or obstruct the United States or any
associate nation in preparing for or carrying
on the war or defense activities, willfully
makes, constructs, or causes to be made or
constructed in a defective manner, or at-
tempts to make, construct, or cause to be
made or constructed in a defective manner
any war material, war premises or war utili-
ties, or any tool implement, machine, uten-
sil, or receptacle . used or employed in
making, producing, manufacturing, or re-
pairing any such war material, war premises
or war utilities, shall be fined not more than
$10,000 or imprisoned not more than thirty
years, or both.
(b) If two or more persons conspire to vio-
late this section, and one or more of such
persons do any act to effect the object of
the conspiracy, each of the parties to such
conspiracy shall be punished as provided in
subsection (a) of this section.
42 U.S.C. 2274: Communication of restrict-
ed data:
Whoever, lawfully or unlawfully, having
possession of, access to, control over, or
being entrusted with any document, writing,
sketch, photograph, plan, model, Instru-
ment, appliance, note, or information in-
volving or Incorporating Restricted Data-
(a) communicates, transmits, or discloses
the same to any individual or person, or. at-
tempts or conspires to do any of the forego-
ing, with intent to injure the United States
or with intent to secure an advantage to any
foreign nation, upon conviction thereof,
shall be punished by imprisonment for life,
or by imprisonment for any term of years or
a fine of not more than $20,000 or both;
(b) communicates, transmits, or discloses
the same to any individual or person, or at-
tempts or conspires to do any of the forego-
ing, with reason to believe such data will be
utilized to injure the United States or to
secure an advantage to any foreign nation,
shall, upon conviction, be punished by a fine
of not more than $10,000 or imprisonment
for not more than ten years, or both.
HIGHLIGHTS
Supreme Court
Gorin v. U.S. (1944)-"Reason to believe"
characterized as sufficient scienter in crimi-
nal statute.
Courts of appeals
U.S. v. Bishop (10th Cir. 1977)-"Reason
to believe" standard sufficiently precise for
criminal statute to withstand vagueness
attack.
U.S v. Achtenberg (8th Cir. 1972)-
"Reason to believe" standard sufficiently
precise for inal statute to withstand
vagueness and overbreadth attack.
Sehmeller v. United States (6th. Cir.
1944)-"Reason to believe" criminal statute
upheld; no requirement to prove specific
intent.
District court
U.S. v. Progressive, Inc. (W.D. Wisc.
1979)-"Reason to believe" standard with-
stands vagueness and overbreadth attack.
OoRIN v. UNITED STATES
(312 U.S. 19 (1971))
THE CASE
Gorin, a citizen of The Union of Soviet
Socialist Republics, was convicted of violat-
ing sections 1(b), 2(a), and 4 of The Expion-
age Act of 1917 which punished copying na-
tional defense documents and furnishing
them to a foreign government "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 Supreme Court upheld
the conviction against Gorin's claim that
The Espionage Act violated due process be-
cause of indefiniteness.
SUPREME COURT ON REASON TO BELIEVE
"But we find no uncertainty in this stat-
ute which deprives a person of the ability to
predetermine whether a contemplated
action is criminal under the provisions of
this law. The obvious delimiting words in
the statute are those requiring 'intent or
reason to believe that the information to be
obtained is to be used to the injury of the
United States, or to the advantage of any
foreign nation.' This requires those prose-
cuted to have acted in bad faith. The sanc-
tions apply only when scienter is estab-
lished." (27, 28) (emphasis added.)
UNITED STATES V. BISHOP
(555 F. 2d 771 (10th Cir. 1977))
TEE ASE
Bishop was convicted under The Federal
Sabotage Act for dynamiting four high-volt-
age electric line towers. The Federal Sabo-
tage Act, 18 U.S.C. 2153(a), read in pertinent
part:
"Whoever... in times of national emer-
gency declared by The President or by The
Congress.... with reason to believe that
his act may injure, interfere with, or ob-
struct the United States or any associate
nation in preparing for or carrying on
... defense activities, willfully injures, de-
stroys, contaminates, or infects ... any war
material, war premises, or war utilities, shall
be fined not more than $10,000 or impris-
oned not more than thirty years, or both."
(Emphasis added.)
While the Court of Appeals reversed the
conviction on the ground that the defend-
ant had constitutionally insufficient notice
that the U.S. was in a state of national
emergency, the Court upheld the "reason to
believe" standard as a sufficiently clear
scienter standard.
COURT OP APPEALS ON REASON TO BELIEVE
"Defendant argues that Section 2151, the
definition section of the Sabotage Act, and
Section 2153 are void for vagueness. The
vague terms are said to be 'defense activi-
ties.' 'reason to believe,' 'national emergen-
cy: 'preparing for,' 'war material,' and 'war
premises.' United States v. Achtenberp [cita-
tion] was concerned with the same statu-
tory provisions we have mentioned and held
that the Act is sufficiently clear to give fair
notice to a normally intelligent person. We
ice?
UNITED STATES V. ACHTENBERG
(459 F. 2d 91 (8th Cir. 1972))
THE CASE
Achtenberg was convicted under the Fed-
eral Sabotage Act, 18 U.S.C. 2153(a), for set-
ting fire to the Army Reserve Officers
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Training Corps building at the Washington
University in St. Louis, Missouri. The Act
reads in pertinent part:
"Whoever, ... in times of national emer-
gency declared by the President or by the
Congress, ... with reason to believe that his
act may injure, interfere with, or obstruct
the United States or any associate nation in
preparing for or carrying on ... defense ae-
tivities, willfully injures, destroys, contami-
nates, or. Infects ... any war material, war
premises, or war utilities, shall be fined not
more than $10,000 or imprisoned not more
than thirty years, or both." (emphasis
added.)
Although a new trial was ordered due to
the trial judge's errors in admitting evi-
dence, the Court of Appeals upheld the
"reason to believe" language against vague-
ness and overbreadth challenges.
COURT OF APPEALS ON REASON TO BELIEVE
"Defendant in his attack on Section
2153(a) as unconstitutional, vague and over-
broad states:
" 'The vague terms are "defense activi-
ties", "reason to believe", "national emer-
gency", "preparing for", "war material" and
"war premises". Both the terms themselves
and the manner in which they are inter-
linked or applied in the statute, create the
constitutional infirmity.'
. In United States v. Mechanic 8 Cir.,
454 F. 2d 849 (1971), we stated:
'A statute may not forbid the doing of an
act in terms so vague that men of common
intelligence must necessarily guess at its
meaning and differ as to its application. [ci-
tation) It will be found void for vagueness
and overbreadth if it fails to give a person
of ordinary intelligence fair notice that his
conduct is forbidden by statute. [citation]
We think that Section 232, read in conjunc-
tion with Section 231(aX3), is sufficiently
clear that a normally intelligent person
could ascertain its meaning and would be
given fair notice of whether or not his con-
duct is forbidden under it.'
"We are satisfied that such test is met in
our present case."
SCHMELLER V. UNITED STATES
(143 P. 2d 544 (6th Cir. 1944))
THE CASE
Schmeller and others were convicted of
violating a federal statute which reads in
pertinent part:
"When the United States is at war ...
whoever, with reason to believe that his act
may injure, interfere with, or obstruct the
United States or any associate nation in
preparing for or carrying on the war, shall
willfully make or cause to be made in a de-
fective manner, or attempt to make or cause
to be made in a defective manner, any war
material, as herein defined, or any tool, im-
plement, machine, utensil, or receptacle
used or employed in making, producing,
manufacturing, or repairing any such war
material, as herein defined, shall upon con-
viction thereof, be fined not more than
$10,000 or imprisoned not more than thirty
years, or both." (emphasis added.)
Although the convictions were set aside
due to the trial court's failure to instruct
the Jury to disregard inadmissible evidence
to which they were exposed, the Court of
Appeals affirmed the sufficiency of the in-
dictment under the statute.
COURT OF APPEALS ON REASON TO BELIEVE
"Under the latter part of this statute the
specific intent to injure or interfere with
the war effort of the United States or any
associate nation need not be proved. The act
of willfully making war material in a defec-
tive manner, with reason to believe that the
act may injure or interfere with governmen.
tal war measures, constitutes the offense."
(548)
"[Count III of the indictment] charges
that with reason to believe that the United
States or the associate nations would be in-
Jured, appellants willfully made the particu-
lar casting 'in a defective manner' by weld-
ing. The appellants are clearly apprised of
the specific offense charged, for the casting
is identified and its heat number gives the
appellants the precise date. The charge that
the casting was made in a defective manner
is adequate, for the allegation to the effect
that it was defectively made by welding is
merely another method of stating that it
was made by welding defectively. The in-
dictment therefore states an offense under
the statute." (549)
SUPREME COURT CASES ON THE INTERPLAY BE-
TWEEN GOVERNMENTAL INTERESTS AND FREE-
DOM OF SPEECH
HIGHLIGHTS
Haig v. Agee (1981)-disclosures of intelli-
gence operations and the names of under-
cover intelligence personnel are clearly not
protected by the Constitution.
U.S. v. O'Brien (1968)-when speech and
nonspeech elements are combined in a
course of conduct, important governmental
interests in regulating the nonspeech ele-
ment justifies incidental limitations on the
speech element.
Chaplinsky v. New Hampshire (1942)-to
further important governmental interests,
the government may restrict utterances
that are not part of the exposition of ideas
and are of slight social value as a step to
truth.
Frohwerk v. U.S (1919)-The First
Amendment was not intended to immunize
every possible use of language.
HAIG v. AGEE
(- U.S. -, 101 S. Ct. 2766 (1981))
THE CASE
Philip Agee, an American citizen and a
former Central Intelligence Agency employ-
ee, engaged in activities abroad that result-
ed in identification of alleged undercover
CIA officers and intelligence sources in for-
eign countries. In accordance with a State
Department regulation issued under the
Passport Act of 1926, the Secretary of State
revoked Mr. Agee's passport on the ground
that he was causing serious damage to the
national security of the United States. The
Supreme Court upheld the revocation as
consistent with the Constitution and the
Passport Act.
SUPREME COURT ON THE FIRST AMENDMENT
(PER BURGER, C.J.)
"Assuming arguendo that First Amend-
ment protections reach beyond our national
boundaries, Agee's First Amendment claim
has no foundation. The revocation of Agee's
passport rests in part on the content of his
speech: specifically, his repeated disclosures
of intelligence operations and names of in-
telligence personnel. Long ago, however.
this Court recognized that 'No one would
question but that a government might pre-
vent actual obstruction to Its recruiting
service or the publication of the sailing
dates of transports or the number and loca-
tion of its troops.' [citation] Agee's disclo-
sures, among other things, have the de-
clared purpose of obstructing intelligence
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
March 15, 1982
does not render his conduct beyond the
reach of the law." (2783) (emphasis added.)
UNITED STATES V. O'BRIEN
(391 U.S. 367 (1968))
THE CASE
O'Brien burned his selective service regis-
tration certificate publicly to influence
others to adopt his antiwar beliefs. He was
convicted of violating a federal statute pro-
hibiting the knowing destruction or mutila-
tion of such a certificate. The Supreme
Court upheld the conviction against a First
Amendment challenge.
SUPREME COURT ON THE FIRST AMENDMENT (per
Warren, C.J.)
"We cannot accept the view that an ap-
parently limitless variety of conduct can be
labeled 'speech' whenever the person engag-
ing in the conduct intends thereby to ex-
press an idea. However, even on the assump-
tion that the alleged communicative ele-
ment in O'Brien's conduct is sufficient to
bring into play the First Amendment, it
does not necessarily follow that the destruc-
tion of a registration certificate is constitu-
tionally protected speech. This Court has
held that when speech' and 'nonspeech' ele-
ments are combined in the same course of
conduct, a sufficiently important govern-
mental interest in regulating the nonspeech
element can justify incidental limitations
on First Amendment freedoms. To charac-
terize the quality of the governmental inter-
est which must,appeal, the Court has em-
ployed a variety of descriptive terms: com-
pelling; substantial; subordinating; para-
mount; cogent; strong. Whatever impreci-
sion inheres in these terms, we think it clear
that a governmental regulation is sufficient-
ly justified if it is within the constitutional
power of the government; if it furthers an
important or substantial governmental in-
terest; if the governmental interest is unre-
lated to the suppression of free expression;
and if the incidental restriction on alleged
First Amendment freedoms is no greater
than is essential to the furtherance of that
interest." (376-77) (emphasis added.)
CHAPLINSKY V. NEW HAMPSHIRE
(315 U.S. 568 (1942))
THE CASE
Chaplinsky distributed literature of the
Jehovah's Witnesses on the streets of Ro-
chester, New Hampshire. A hostile crowd
complained to the City Marshal that Cha-
plinsky denounced all religion as a racket.
The Marshal replied that Chaplinsky's ac-
tivities were lawful, but advised Chaplinsky
that the crowd was becoming restless. Sub-
sequently, a disturbance occurred and a
nearby policeman started with Chaplinsky
for the police station. En route to the sta-
tion they encountered the City Marshal to
whom Chaplinsky stated "you are a god
damned racketeer," "a damned Fascist and
the whole government of Rochester are Fas-
cists or agents of Fascists." Chaplinsky was
convicted of using provocative offensive
words directed at a person in a public place.
The Supreme Court upheld the conviction
against Chaplinsky's claim of protection for
the speech under the First Amendment as
made applicable to the States by the Four-
teenth Amendment.
SUPREME COURT ON THE FIRST AMENDMENT
(PER MURPHY, J.)
"Allowing the broadest scope to the lan-
guage and purpose of the Fourteenth
Amendment, it is well understood that the
right of free speech is not absolute at all
times and under all circumstances. There
are certain well-defined and narrowly limit-
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ed classes of speech, the prevention and
punishment of which have never been
thought to raise any Constitutional prob-
lem. These include the lewd and --
the profane, the libelous, and the insulting
or "fighting" words-those which by their
very utterance Inflict Injury -or tend to
incite an immediate breach of the peace. It
has been well observed that such utttnwees
are no essential part of the exposition of any
ides and are of such sight social value as
a step to the truth that any bexeAt that may
be derived from them is clearly outweighed
by the social interest in order and moral-
ity. "(572-73) (emphasis added.)
FROHwERH v. UNITED STATES
(249 U.S. 204 (1919))
THE CAS=
Frohwerk was convicted of conspiracy to
obstruct military recruiting In violation at
the Espionage Act of 1917. He published the
Missouri Stoats Zeitung advocating that the
members of the U.S. armed forces mutiny.
The Supreme Court affirmed the convic-
tions against a First Amendment free
speech challenge.
SUPREME COURT ON THE FIRST AMENDMENT
(PER HOLMES, J.)
"[T]he First Amendment while probbiting
legislation against free speech as such
cannot have been, and obviously was not, In-
tended to give Immunity for every possible
use of language. [citation] We venture to
believe that neither Hamilton nor Madison,
nor any other competent person then or
later, ever supposed that to make criminal
the counselling of murder within the juris-
diction of Congress would be an unconstitu-
tional interference with free speech." (206)
DERS V. UNITED STATES
(249 U.S. 211 (1919))
THE CAGE
Debs was convicted of advocating In a
public speech that members of the armed
forces should refuse to fight, in violation of
the Espionage Act of 1917. The Supreme
Court upheld the conviction against a First
Amendment free speech challenge.
SUPREME COURT ON !60 FIRST AMENDMENT
(PER HOLMES, J.)
"The defendant [Debs] addressed the jury
himself, and while contending that his
speech did not warrant the charges said 'I
have been accused of obstructing the war. I
admit it. Gentleman, I abhor war. I would
oppose the war if r stood alone.' The state-
ment was not necessary to warrant the jury
in finding that one purpose of the speech,
whether incidental or not does not matter,
was to oppose not only war in general, but
this war, and that the oppostion was so ex-
pressed that its natural and intended effect
would be to obstruct recruiting. If that was
intended and. if, in all the circumstances,
that would be its probable effect, it would
not be protected by reason of Its being part
of a general program and expressions of a
general and conscientious belief." (214, 215)
ScHEncr v. UNrrrD STATES
(249 U.S. 47 (1919))
THE CASE
Schenck and others were convicted of con-
spiring to obstruct recruiting and enlist-
ment by mailing printed circulars to draft-
ees urging them to evade the draft, a viola-
tion of the Espionage Act of 1917. Schenck
claimed the protection for his speech of the
First Amendment. The Supreme Court
upheld the conviction against a First
Amendment free speech challenge.
sunwez COURT ON TU rust AMENDMENT (per
Holmes, J.)
"We admit that in muw places and in or-
dinary times the defendants in saying all
that was said in the circular would have
been within their constitutiopal rights. But
the Character of every act depends upon the
circumstances in which ft Is done.[cttationl
The most stringent protection of free
speech would not protect a man in falsely
shouting fire in -a theatre and causing a
panic- It don not even protect a man from
an injunction against uttering words that
may have all the effect of force. [citation)
The question in every case 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 the
substantive evils that Congress has a right
to prevent it is a question of proximity and
degree." (52)lemphasis added.)
Addenda
Kennedy v. Mendoza-Martinez, 372 U.S.
144, 160 (1963) (passport denial to citizen
stripped of citizenship for draft evasion in-
validated):
. [W]hile the Constitution protects
against Invasions of individual rights, it is
not a suicide pact."
Broad rick v. Oklahoma, 413 U.S. 601, 611-
12 (1973) (First Amendment challenge to
ban on political activity by State employ-
ees):
"It has long been recognized that the
First Amendment needs breathing space
and that statutes attempting to restrict or
burden the exercise of First Amendment
rights must be narrowly drawn and repre-
sent a considered legislative judgment that
a particular mode of expression has to give
way to other compelling needs of society."
CBS v. DNG 412 U.S. 94, 102-3 (FCC Fair-
ness Doctrine on access to media upheld
against lust Amendment challenge):
"Professor Chatee aptly observed: once we
get away from the bare words of the (First]
Amendment, we must construe it as part of
a Constitution which creates a government
for the purpose of performing several very
important tasks. The [First) Amendment
should be interpreted so as not to cripple
the regular works of the government."
CARTER ADMINISTRATION POSITION ON
"SPFCIPIC nrnw" STANDARD
Mr. CHAFES. Mr. President, there
has been a lot of.debate on the Issue of
the "specific intent" standard which
the Judiciary Committee adopted by a
very narrow margin as its language in
subsection 601(c), and the "reason to
believe" language that Senator JACx-
soN and I have incorporated In our
amendment.
The reasons for these differences In
language arise out of the debate we
had on this Issue 2 years ago. It seems
to me this is extremely important, Mr.
President, and I believe this gets to
the heart of one of the problems we
have here.
In January of 1980, over 2 years ago,
Senator JACxsoN and I Joined Senators
MoyxnHAN, NUNN, DANFoRTH, DoMLN-
icr, and others in Introducing the In-
telligence Reform Act of 1980 which
was then S. 2216. This bill contained a
section designed to protect agents'
identities which depended on a "spe-
cific intent" standard. In other words,
the bill we originally introduced had
the "specific intent" standard which
Senator BIDsw is defending from my
amendment now.
In hearings before the Senate Intel-
ligence Committee In June of 1980 a
number of witnesses expressed con-
cern with the "specific Intent" stand-
ard
For example, the Carter administra-
tion's principal witness at our hear-
ings, Mr. Robert F. Keuch, Associate
Deputy Attorney General-he was ap-
pointed by the prior administration-
argued very strongly against the "spe-
cific intent" requirement, and this is
what he had to say:
Section 501(b) specific Intent requirement
that an individual must have acted with
intent to impair or impede the foreign Intel-
ligence activities of the United States, and
that such intent cannot be Inferred from
the act of disclosure slam. is not a fully
adequate way of narrowing the provision
either in serving the Fiat 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.
Now, Mr. Keuch Is saying so far that
the "specific intent" requirement,
which is the language In the commit-
tee version that is on the floor here
and which was the language we origi-
nally considered 2 years age, could
chill legitimate criticism of the CIA,
because general criticism of the CIA
could seem to then corroborate an
intent to impair or impede the intelli-
gence activities of the United States.
Mr. Keuch goes on In his statement:
A mainstream journalist, who occasionally
writes stories based on public information
concerning which foreign leaders are
thought to have intelligence relationships
with the U.S., may fear that such stories
about foreign leaders and other stories by
him critical of the CIA will be taken as evi-
dence of an intent to impede foreign intelli-
gence activities.
Speculation and debate concerning intelli-
gence activity and actors would seemingly
be more hazardous if one had taken a gener-
al position critical of the conduct of our
covert foreign Intelligence policy.
Mr. Keuch continues:
Taking the problem from the other direc-
tion, 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 soon may be unwilling to
hazard a speculative discussion of covert in-
telligence policy for fear they will unwit-
tingly name an intelligence source correctly.
The specific intent requirement also can
hamper effective enforcement by creating a
difficult jury question. Any person willing
to gamble on the outcome 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 un-
necessary 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 the light of such a
claim.
Mr. Keuch continues:
A related serious enforcement problem is
that the serious intent enforcement prob-
lem could provide an opening for defend-
ants to use the trial as a forum to demon-
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CONGRESSIONAL RECORD - SENATE March 15, 1982
strate alleged abuses by the intelligence
community or to press for disclosure of sen-
sitive classified information on the ground
that it was relevant to show their intent was
to inform rather than to disrupt. The Jus-
tice Department is concerned that the spe-
cific intent element will facilitate graymall
efforts to dissuade the Government from
prosecuting defendants.
Mr Keuch continues:
In my appearance last January I was
asked by the House Intelligence Committee
whether the Department believes section
501(b) of H.R. 5015 or S. 2216 would be held
constitutional. Our sincere answer has to be
that we do not know.
In other words, he was not sure that
the "intent" standard would stand up
to, withstand, the constitutional chal-
lenge. That is the end of Mr. Keuch's
quote.
Now, Mr. President, just let me sum-
marize what Mr. Keuch said to the In-
telligence Committee nearly 2 years
ago. He testified as follows: First, that
the "specific intent" requirement may
chill legitimate critique and debate on
CIA policy.
Second, he said that the specific
intent requirement could hamper ef-
fective prosecution by making a very
difficult jury question.
Third, he said the specific intent re-
quirement would facilitate "graymail"
efforts.
Let me explain the word "graymail."
"Graymail" is a threat that if you
prosecute a defendant, the defendant
will demand large quantities of CIA
documents or information on activities
be disclosed. He will require this as
part of his defense. The so-called
"graymail" technique occurs quite fre-
quently when the Government tries to
prosecute those guilty of handling doc-
uments to foreign nations. For exam-
ple, the defense will say, "In order to
prove our defense, we request the Gov-
-ernment to reveal all intelligence doc-
uments they have on this subject."
And the Government says, "We don't
want to reveal those." Thus, the de-
fendant will plead to a lesser sentence;
either he will go free completely or he
will get some minor punishment. That
is what we call "graymail."
Mr. Keuch worries about the "gray-
mail" threat if this specific intent lan-
guage remains in the legislation.
Fourth, and finally, Mr. Keuch, says
that the Carter administration Justice
Department does not know whether
the specific intent requirement would
be upheld as constitutional.
Other witnesses who appeared
before our committee in 1980, such as
Mr. Lloyd Abrams, who defended the
New York Times in the Pentagon
papers case, and Mr. Morton Halperin,
of the ACLU, expressed similar con-
cerns about the specific intent require-
ment.
On the basis of these expressed con-
cerns, the Senate Intelligence Commit-
tee Staff and the Justice Department
began working on an alternative
standard of proof which would remove
the problems of the specific intent
standard. In other words, we wrestled
with the specific intent difficulty that
was brought up, and we saw the prob-
lems that were raised, as pointed out
by Mr. Keuch. That was the language
we originally had in the act by we
changed it because of the objections
that were raised. We came up with the
language which utilized this objective
standard, this reason to believe lan-
guage.
The Carter administration Justice
Department endorsed this language.
In a letter to Chairman Bayh-who
was then chairman of the Senate In-
telligence Committee-Deputy Attor-
ney General Renfrew wrote as follows
about the objective standard:
This formulation substantially alleviates
the Constitutional and practical concerns
expressed by the Justice Department with
regard to earlier versions of this bill that in-
cluded a requirement that prohibited disclo-
sures be made with a specific "intent to
impair or impede" U.S. intelligence activi-
ties.
Because of the significance of this matter,
however, it has been our view from the be-
ginning that such legislation as is enacted
must be fair, effective and enforceable. Our
position has been and remains that the ab-
sence of an intent element in this legislation
will accomplish this goal.
That is the end of the quote by Mr.
Renfrew, Deputy Attorney General
under the prior administration of
President Carter, to Chairman Bayh.
Mr. President, the language of the
amendment, the Chafee-Jackson lan-
gage, for this subsection is the only
language that has been endorsed by
the Carter and the Reagan adminis-
tration Justice Departments. The
issues which this legislation involves
have been heard in detail, and our
wording of S. 391 has been carefully
amended and refined to its current
state.
If the Senate goes back to the specif-
ic intent standard, which the Judiciary
Committee narrowly adopted, we will
be going back to a standard which the
Carter administration Justice Depart-
ment declared inadequate over 2 years
ago. This simply does not make sense.
THE HOSTILE "MOLE"
Mr. President, I would like to now
address the issue of the so-called
"mole" within the CIA, which the dis-
tinguished Senator from Delaware has
dealt with in a hypotetical which he
raised on this floor and during hear-
ings on the Intelligence Identities Pro-
tection Act.
The Senator from Delaware said
that the reason to believe language
would prevent exposure of a hostile
"mole" within the CIA. It seems tome
preposterous to suggest that the
Chafee-Jackson language would pre-
vent "mole" from being exposed. It
seems to me that a journalist in the
"mole" hypothetical would not be
prosecuted under the terms of my
amendment for the following reason:
First of all, it is not at all certain
that "mole" identified would be a
covert agent, as that term is precisely
defined in the bill. The "mole" may be
an overt CIA employee. As such, his
identity would not be classified infor-
mation under the definitions in sub-
paragraph 606(4), and the United
States would not be taking "affirma-
tive measures to conceal such individ-
ual's classified intelligence relation-
ship." Accordingly, no prosecution
would be brought for such a disclo-
sure.
There is no reason to assume in this
case that the hypothetical journalist
would have the requisite reason to be-
lieve that his disclosure would impair
or impede the foreign intelligence ac-
tivities of the United States. Disclo-
sure of the identity of a real "mole"
would not impair or impede but,
rather, assist the foreign intelligence
activities of the United States.
Finally, there is nothing in S. 391
that would prevent the journalist
from publishing his story about the
penetration without identifying the
"mole." Section 602(d) expressly states
that it is not an offense to transmit
the identification to the Intelligence
Committees, the one in the House and
the one ' in the Senate. And, in fact,
this would be an ideal route for the
journalist to take since efforts that
then might have been made to double
the "mole" to the benefit of the
United States.
This act encourages disclosure of in-
formation to the committees them-
selves. In a case where a journalist
thinks he has spotted a "mole," notifi-
cation of this fact to the congressional
Intelligence Committees would be the
best course of action. In any case in-
volving a "mole", and individual
thought to be a "mole" might, in fact,
already have been doubled and work-
ing for the United States. In such cir-
cumstances, his exposure could, in
fact, gravely impair U.S. intelligence
activities.
NEGLIdENCE AND GREYMAIL ISSUES
Mr. President, the junior Senator
from Indiana stated on January 25 of
this year that, in his judgment, the
Chafee-Jackson language was a negli-
gence standard and it also creates
what we call "greymail" problems. In
other words, the junior Senator fro)II
Indiana was raising the "greymail"
problem as it pertained to the lan-
guage we had, the so-called reason to
believe language. Now, let me discuss
this a minute.
This is what the junior Senator from
Indiana had to say:
First of all, intent is the appropriate ele-
ment for a criminal statute. Reason to be-
lieve implies a negligence standard and this
is not a negligence standard substitute.
Second, the objective "reason to believe"
standard: "what would a reasonable man be-
lieve would be the results of his actions,"
raises serious prosecutiorial questions. For
example, it would force the Government to
make public at the trial more classified in-
formation than it would want to and cer-
tainly more than it requires in a prosecution
under the "intent" standard.
The junior Senator from Indiana,
thus, is arguing that it is easier to
prosecute under the intent standard,
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March 15, 198.2 CONGRESSIONAL RECORD - SENATE
and that serious difficulties would be
raised with the reason to believe.
Well. Mr. President, reason to be-
lieve is not a negligence standard. An
examination of all of the elements of
proof required in the Chafee-Jackson
amendment makes it clear that reason
to believe does not mean that a negli-
gence disclosure of an Identity would
be a criminal offense. Why is this so?
How can I say that a negligence disclo-
sure of an Identity would not be a
criminal offense?
First of all, the individual making
the disclosure must know that the in-
formation he discloses does, in fact,
identify a covert agent.
That is the first thing. The person
making the disclosure must also note
that the United States is taking af-
firmative measures to conceal the
agent's classified intelligence affili-
ation. Moreover, the disclosure must
be in the course of a pattern of activi-
ties intended to identify and expose
covert agents.
And finally, the person making the
disclosure must have reason to believe
his activities would impair and impede
foreign intelligence activities in the
United States.
All these elements must be proved.
An individual making an unauthorized
disclosure under these circumstances
can hardly claim negligence. It is com-
pletely fallacious to argue that stand-
ing alone "reason to believe" is the
same as negligence because "reason to
believe" does not stand alone In sub-
section 601(c). It Is preceded by five
other elements, all of which must be
proved beyond a reasonable doubt.
During the Senate Judiciary Com-
mittee's markup of the legislation that
we are considering on October 6 of last
year, Senator LEAHY raised this issue
of negligence, and he directed his
question to Mr. Richard Willard, the
Attorney General's counsel for Intelli.
gence Policy. Senator LEAHY directed
the following question:
Can you tell us, is this or Is this not a neg-
ligence standard?
The response by Mr. Willard who, as
I mentioned, was the Justice Depart-
ment's expert on Intelligence law, was
as follows:
If the reason to believe standard stood by
Itself and were the only element of this of-
fense, 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
section 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 and expose covert agents which exist in
Senate 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.
The distinguished junior Senator
from Indiana is speaking about
"reason to believe" as if it were the
only standard of proof in the bill. We
must not allow our focus on the differ.
ences between "reason to believe" and
"intent to Impair or Impede" to ob-
scure the fact that we are talking
about one of six elements of proof re-
quired by the amendment I have sub-
mitted >and by the legislation that has
passed the. House. All of these ele-
ments must be proven beyond a rea-
sonable doubt. Comparing the "reason
to believe" standard to a negligence
standard is meaningless, because the
comparison Ignores the five additional
elements of proof which must be pres-
ent before "reason to believe" is even
considered.
Mr. President, .the Junior Senator
from Indiana also suggested "reason
to believe" would lead to greater pres-
sures to reveal classified information
at the trial-in other words, the so-
called grey mail problem-and it would
chill prosecutorial efforts. -
That simply Is not the case. In fact,
it is Just the opposite. The subjective
intent standard would have those dif-
ficulties.
Under the intent to Impair or
impede standard a defendant could
press for disclosure of sensitive classi-
fied information on the grounds that
it was relevant to a showing that his
intent was to expose alleged abuses
rather than to Impair or impede intel.
ligence activities.
The "reason. to believe" standard
avoids this problem by focusing on
overt acts rather than on some subjec-
tive state of mind.
The whole question of greymall was
raised over 2 years ago when the
Carter administration Justice Depart-
ment testified before the Senate Intel-
ligence Committee. At those hearings,
Mr. Robert Keuch, Assistant Deputy
Attorney General In the Carter admin-
istration, said:,
A related serious enforcement problem is
that the specific intent requirement could
provide an opening to defendants to use the
trial as a forum to demonstrate alleged
abuses by the intelligence community, or to
press for disclosure of sensitive, classified in-
formation on the ground it was relevant to
showing their Intent was to reform rather
than to disrupt.
The Justice Department Is concerned that
the specific Intent element will facilitate
greymail efforts to dissuade the Federal
Government from prosecuting offenders.
Mr. President, the Justice Depart-
ment has a great deal of expertise on
the subject of greymail. I would sug-
gest that if the Justice Department
supports the Chafee-Jackson language
rather than the specific intent lan-
guage because of greymail problems,
we ought to listen to them. They are
expert on these matters.
? susmPORrrATION IN DEBATE
Mr. President, on March 1 of this
year, the Junior Senator from Ver-
mont noted that a considerable
amount of misinformation had en-
tered into the debate on the Intelli-
gence Identities Protection Act. Sena-
tor LEAHY declared that the amount of
misinformation in the debate was so
great that some kind of prize might be
in order. I believe the Senator from
S2679
Vermont was correct and the misinfor-
mation campaign continues. The prize
which Senator LEAHY spoke about
might well be awarded to the New
York Times for its editorial of March
4, 1982, called The Spy Bill Wrapped
in the Flag.
Mr. President, at this time I ask
unanimous consent that a copy of this
editorial from the New York Times of
March 4, 1982, be printed in the
RECORD. First, however, I would like to
read excerpts from it.
The Times had this to say:
THE Spy Bus. WRAPPED IN THE FLAG
The closer the Senate gets to voting on
the "Intelligence Identities Protection Act."
the clearer it becomes that this bill danger-
ously exceeds its announced purpose. It was
prompted by former agents who break their
oaths and expose American secret agents in
risky intelligence work. But Congressional
anger soon spread to Individuals who never
worked for the Government but engage in
similar exposures using publicly available
information. And that, in turn, has raised
concern about the possible use of the act
against news organizations.
if there was any doubt that the act ex-
tends that far, It has now been put to rest.
Senator John Chafee, a chief sponsor, has
clarified the bill's threat to conventional
Journalism-and public discussion generally.
Asked whether a prosecutor could use the
bill against reporters and news organiza-
tions for exposing crimes and abuses by
agents and informants, the Senator has this
reply: "I'm not sure that The New York
Times or The Washington Post has the
right to expose names of agents any more
than Mr. Wolf or Mr. Agee," two of the
bill's main targets. "They'll Just have to be
careful about exposing the names of
agents."
And then it goes on with severe criti-
cism of Senator CHer=E. The article
continues:
Unfortunately, to cite a case in The
Times's experience, being careful doesn't
help decide how to deal with former spies
like Edwin Wilson and Frank Terpil. The
Times put together-carefully-stories
about how the former agents trained terror-
ist abroad and engaged in suspicious weap.
ons and technology deals. The stories raised
questions about the former spies' connec-
tions to the Central Intelligence Agency,
whether real or feigned.
There being no objection, the edito-
rial was ordered to be printed in the
RECORD, as follows:
(From the New York Times, Mar. 4, 19821
THE SPY Bra WIAPPSD IN THE FLAG
The closer the Senate gets to voting on
the "Intelligence Identities Protection Act."
the clearer it becomes that this bill danger-
ously exceeds its announced purpose. It was
prompted by former agents who break their
oaths and expose American secret agents in
risky intelligence work. But Congressional
anger soon spread to Individuals who never
worked for the Government but engage in
similar exposures using publicly available
information. And that, in turn, has raised
concern about the possible use of the act
against news organizations.
If there was any doubt that the act ex-
tends that far, it has now been put to rest,
Senator John Chafee, a chief sponsor, has
clarified the bill's threat to conventional
journalism-and public discussion generally.
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CONGRESSIONAL RECORD - SENATE March 15, 1982
Asked whether a prosecutor could use the
bill against reporters and news organiza-
tions for exposing crimes and abuses by
agents and informants, the Senator had this
reply: "I'm not sure that The New York
Times or The Washington Post has the
right to expose names of agents any more
than Mr. Wolf or Mr. Agee," two of the
bill's main targets. "They'll just have to be
careful about exposing the names of
agents."
Senator Chafee makes the bill's danger
explicit without seeming to understand its
cost to public discussion of security issues.
Perhaps inadvertently, he makes the case
for trimming back this inflated piece of leg-
islation. No assurances that the law would
be carefully administered can suffice when
the warning to reporters is: be careful about
getting the Government mad.
Unfortunately, to cite a case in The
Times's experience, being careful doesn't
help decide how to deal with former spies
like Edwin Wilson and Frank Terpil. The
Times put together-carefully-stories
about how the former agents trained terror-
ists abroad and engaged in suspicious weap-
ons and technology deals. The stories raised
questions about the former spies' connec-
tions to the Central Intelligence Agency,
whether real or feigned.
At a minimum, these foreign adventures
challenged the country's ability to avoid em-
barrassment by once-trusted employees.
The stories brought about other investiga-
tions, by Congress and the C.I.A. itself.
But it doesn't seem to matter how much
care went into those stories. It doesn't
matter how much they have been supported
by official investigations. None of that
would protect the paper against a wrathful
prosecutor armed with the pending bill.
The Senate should restrict it to the pun-
ishment of people like Philip Agee, the
former spy who first specialized in agent ex-
posure. Congress cannot reach private citi-
zens like Louis Wolf, publisher of the
Covert Action Information Bulletin, with-
out chilling other, more precious journalism
and debate. In no case can the Senate re-
sponsibly follow the House's reckless exam-
ple and make it a crime to identify an agent
without even requiring proof of criminal
intent.
Until now, the Reagan Administration has
managed to wrap this bill in the flag. That
conceals its danger to liberty-and to the
public knowledge on which true national se-
curity rests. There is a difference between
patriotism and chauvinism. Senators Biden,
Bradley, Leahy, Specter and Quayle have
been in the forefront of those who have ex-
posed at least some of the bill's excesses.
The entire Senate needs equal courage and
wisdom.
Mr. CHAFEE. In other words, Mr.
President, the New York Times edito-
rial tries to tell us the recent series of
articles done by the Times on the ac-
tivities of former CIA officers, and
they identify them in the editorial,
Edward Wilson and Prank Terpil,
could not have published if the identi-
ties bill had been law at that time.
Mr. President, in a previous discus-
sion with the Senator from New
Jersey (Mr. BRADLEY), I had occasion
to discuss the definition of "covert
agent" in this legislation. Senator
BRADLEY cited a number of newspaper
articles and asked whether or not the
authors would have been liable to
prosecution under the Chafee-Jackson
amendment. In each case, I told Sena-
tor BRADLEY that the answer to his
question was contained in the defini-
tion of "covert agent" which appears
on page 7 of the committee bill-of the
committee bill-as reported. This defi-
nition makes it absolutely clear that S.
391 defines the term, "covert agent,"
to mean only current CIA officers of
employees whose identity as such offi-
cers or employees is classified and who
are actually serving outside the United
States or have done so within the last
5 years.
The definition of "covert agent"
goes on to include certain other indi-
viduals who are not citizens of the
United States whose past or present
intelligence relationship to the United
States is classified. These are the
people who are normally called agents
in the intelligence community.
The definition of a covert agent also
includes certain U.S. citizens residing
or acting outside the United States
and who are associated with foreign
counterintelligence or foreign counter-
terrorism components of the FBI.
The point I wish to emphasize is
simply that former CIA agents are not
covered by the definition of "covert
agent."
I might say, Mr. President, that ap-
plies to whether the intent language
or the "reason to believe" standard is
used. That has nothing to do with the
Chafee amendment. I do not quite see
why the Times editorial goes after
Senator CUAFEE on this particular
point, because both bills use the same
definition.
Oddly enough, Mr. President, the
Times editorial goes on to say that the
Reagan administration has managed
to wrap this bill in the flag.
Until now. the Reagan Administration has
managed to wrap this bill in the flag. That
conceals its danger to liberty-and to the
public knowledge on which true national se-
curity rests. There is a difference between
patriotism and chauvinism. Senators Biden,
Bradley, Leahy, Specter and Quayle have
been in the forefront of those who have ex-
posed at least some of the bill's excesses.
Oddly enough, Mr. President, each
of those gentlemen is supportive of
the legislation as it incorporates the
language they are for, namely, the
intent standard, yet the New York
Times is critical of the whole bill. So it
is odd that they are so geriprously
praised, but I am glad that the Times
saw fit to praise some of us here in the
Senate.
It seems to me, Mr. President, that
the debate over this bill, whether on
the floor of this body or in the editori-
al pages of influential publications,
should at least be based on what the
bill says. Certainly, the New York
Times should have someone on its
staff who is capable of reading the bill
and coming to the inescapable conclu-
sion that neither the Judiciary Com-
mittee version of the bill nor the
Chafee-Jackson amendment has any-
thing to do with preventing the
naming of former CIA officers who
might be engaged in illegal or other-
wise nefarious activities. The bill does
not cover former CIA officers. It is dis-
concerting to listen to the recitation of
articles which have been published in
the past and which, it is alleged, could
not have been published had the iden-
tities bill been law at the time.
We have dredged out these articles
and, in every case, the allegation can
be disposed of simply by referring to
the definitions in the legislation. In
almost every case, the name revealed
in the article was that of a former CIA
officer not covered by the definition or
of a U.S. citizen residing in the United
States who is also not covered by the
definition of a covert agent.
Mr. President, the Senator from
Delaware appears to understand and
accept the fact that, in the language I
have presented, an individual must
engage in a pattern of activities in-
tended to identify and expose covert
agents.
Let me quote from Senator BIDEN'S
statement of March 1. Senator BiDEN
was discussing the Chafee-Jackson
amendment, and he stressed that it
contains several key elements. As Sen-
ator BIDEN put it:
First, a pattern of activities; second, with
an intent to identify or expose; and, third,
with a reason to believe that the activity
would impair or impede the foreign intelli-
gence activities of the United States.
Senator BIDEN went on to say:
In the intent to identify or expose, the
intent goes to the identification not the mo-
tivation.
Mr. President, that is absolutely cor-
rect. The intent element in the
Chafee-Jackson language is a pattern
of activities intended to identify and
expose covert agents. Senator BIDEN
has emphasized that it is theoretically
possible to be prosecuted under the
Chafee-Jackson language for exposing
the name of a single covert agent, so
long as an individual engaged in a pat-
tern of activities prior to the disclo-
sure.
The point that Senator BIDEN keeps
missing, however, is the key point con-
tained in my exchange with Senator
DURENBERGER on March 3, 1982. In
that exchange, Senator DURENBERGER
and I discussed Senate Report 96-896,
which is the only legislative history of
the Chafee-Jackson language. This Is
the Intelligence Committee report on
the identities bill that was pending in
the 96th Congress. I urge my col-
leagues to read the colloquy between
Senator DURENBERGER and me in order
to understand that the intent require-
ment of the Chafee-Jackson language,
the requirement that an individual
engage in a pattern of activities in-
tended to identify and expose covert
agents, effectively limits the coverage
of the identities bill to those engaged
in the purposeful enterprise of reveal-
ing names; that is, to those in the busi-
ness of naming names.
Mr. President, the matter before us
is a critical one, and I urge my col-
leagues to treat with great care and
more than a few grains of salt the ar-
guments that have been raised against
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March 15, 1982
CONGRESSIONAL RECORD - SENATE , S 2081
the Chafee-Jackson amendment. In
many cases, as I have tried to show,
misinformation and misconceptions
have crept into the public debate on
this issue. We should not be misled by
this.
RICHARD S. WELCH MEMORIAL POND
In conclusion, Mr. President, I
should like to state that probably this
legislation had its birth in the execu-
tion, or murder, that took place of
Richard Welch, a CIA station chief in
Athens, Greece, who was shot in front
of his home as he returned from a
Christmas party at the American Am-
bassador's home. He had attended a
Christmas party in December 1975, at
the Ambassador's home and, as Mr.
Welch returned to his own home, his
quarters in Athens, he was executed-
murdered. That assassination occurred
within a month of the time that he
was publicly identified. as the CIA sta-
tion chief in the Athens Daily News.
That information in the Athens Daily
News came from Phillip Agee's Coun-
terspy magazine.
I have special feeling for this
murder, Mr. President, because Mr.
Welch's family comes from my State
of Rhode Island. Richard Welch grew
up in Providence, where he was an
honor student at Classical High
School. He was a member of the track
team. He went on to Harvard. He grad-
uated in 1951 magna cum laude, with a
degree in Greek and classical lan-
guages.
What a prize. What a man to have in
our CIA. Welch's mother and wife
were both from Rhode Island and a
brother and sister of his still live
there. His uncle was a probate judge in
one of our towns and a former clerk in
the family court.
Richard Welch was not somebody in
a trenchcoat, wandering around; as
many CIA officers are characterized
incorrectly. He was, as many CIA offi-
cers are, a well-educated, able, and in-
telligent family mah. He gave up what
could have been an easy life at home
for an important, though dangerous,
series of assignments overseas for this
Nation and for us. We sent him there.
We, the Members of Congress, have
set up the CIA. We have supported it
with funds. We encourage the recruit-
ment of young American men and
women to go into the CIA, and we rec-
ognize that they will be sent abroad on
dangerous missions.
Richard Welch believed in the pri-
mary purpose and mission of the CIA,
which is to collect foreign intelligence
so that the U.S. policymakers can
make informed judgments here at
home. He died for those beliefs be-
cause a small clique of individuals
make their living by naming names.
Last week, I was pleased to receive a
letter from Harvard University stating
that a Richard S. Welch Memorial
Fund is being established at Harvard
for the consideration of intelligence
and its role in the formulation and im-
plementation of U.S. policy. That fund
will be jointly administered by the
John F. Kennedy SMzool of Govern-
ment and the Center for International
Affairs at Harvard. The purpose of
this endeavor is to enhance the na-
tional understanding and appreciation
of the role of intelligence In our
Nation.
Mr. President, I can think of no
more timely opportunity for this me-
morial fund to be established. Nor can
I think of any better way to honor this
intelligent and patriotic U.S. citizen,
than to pass the legislation which will
effectively prevent the pernicious ac-
tivity of "naming names: " After all,
that activity was responsible for Rich-
ard Welch's murder.
Mr. President, I ask unanimous con-
sent to.have printed in the RECORD the
letter from Harvard in connection
with this memorial fund for Richard
Welch.
There being no objection, the letter
was ordered to be printed in the
RscoRn, as follows:
RICHARD S. WELCH MEMORIAL
FUND,
HARVARD UNIVERSITY,
Cambridge, Mass., December 1981.
DEAR SENATOR CHAVES, Dick Welch '51
died at the hand of an assassin in Athens on
December 23, 1975. Since then, many of us
have sought a way to remember that bright-
est and wittiest of spirits, that consummate
professional, that warmest of friends, that
special man.
Now we have the way. We are establishing
the Richard S. Welch Memorial Fund at
Harvard for the consideration of Intelli-
gence and its role in the formulation and
implementation of U.B. policy. Through this
endeavor to enhance the national under-
standing and appreciation of the intelli-
gence function, we commemorate Dick in a
combination of three of his great loves: his
college, his profession, and his quest for un-
derstanding in the cause of the United
States.
Harvard's Kennedy School of Govern-
ment and Center for International Affairs
will Jointly oversee the use of the money
from the Fund, under the direction of their
respective chiefs, Graham Allison and
Samuel Huntington, and three others.
The prime aim of the Memorial Fund will
be to encourage teaching and talking about
intelligence-with students, government of-
ficials, and others, at Harvard and across
the country. The subject matter will be the
rational and historical importance and con-
tribution of intelligence in the making of in-
formed foreign and national policy. We look
forward to cooperation between those work-
ing at Harvard under the aegis of the Me-
morial Fund and those teaching and talking
about intelligence elsewhere.
Dick Welch honored by his life and
death. Now we may hon him by perpet-
uating his memory in behalf of the causes
he cherished. We ask you to join us-our im-
mediate goal Is $50,000. Please make checks
payable to the Richard S. Welch Memorial
Fund, and send them to Dean Bayley Mason
at the Kennedy School, address above. All
contributions are tax-deductible, and are
credited to the current Harvard Campaign.
We also ask you to send a copy of this letter
with your personal note to others who knew
and/or esteemed Dick and what he stood
for. We shall keep you advised of the prog-
ress of the Fund and plans for its use.
Thank you.
Sincerely,
JOHN A- BROSS.
CHRISTOPHER MAY.
(Mr. DURENBERGER assumed the
chair.)
Mr. CHAFEE. Mr. President, some
of my colleagues have mentioned the
'case of Richard Welch and the case of
the Kinsman family. It will be recalled'
that the Kinsman family, on July 4,
1980, was stationed in Jamaica. His
name was published. He was alleged to
be a CIA officer. His license number,
his street address, and the color of.his
car were published in one of these bul-
letins. His house was shot up and an
explosion took place. A bomb was
thrown on his lawn. Fortunately, no
one was hurt. That was lucky. Bullets
went through his house, through his
young daughter's bedroom. Fortunate-
ly, she was not in the house at the
time.
There are others whose careers were
ruined because no longer can they
carry out the missions for which they
have been trained and for which this
Nation needs them.
It is important to understand that
this activity is not something that
took place only in the case of Welch
and Kinsman. It is taking place con-
stantly, and it is important to under-
stand that.
Two weeks ago, in Managua, Nicara-
gua, an American political officer was
the subject of official harassment be-
cause he was identified as a CIA agent
serving in the Embassy. This incident
was described In a recent article by
Roy Gutman in Newsday, a newspaper
published on Long Island with which
many of us are f . I ask unani-
mous consent that this excellent arti-
cle be printed in the RacoRn.
There being no objection, the article
was ordered to be printed In the
RECoRD, as follows:
[From Newsday. Mar. 12, 19821
BAN ON NAMING AimucAN SPIES NEARS
SENATE OK
(By Roy Gutman)
WASHINGTON.-On the pretext of a traffic
violation, Nicaraguan police , halted the U.S.
Embassy car on the side of a public highway
in Managua. They seized the driver's license
and car registration. State security men ar-
rived an hour later. When the embassy offi-
cer refused to accompany them, police took
the driver and car away, leaving the officer
on the street.
The incident, as reported in a U.S. Embas-
sy cable a little over two weeks ago, ended
peacefully, The driver was Interrogated for
two hours, and the car taken apart and
searched. By contrast, between Nov. 6 and
Dec. 16, three women employees at the em-
bassy were assaulted, bound and gaged by
armed men who overpowered guards and
broke into their homes in Managua.
What all four had in common is that they
were listed as CIA agents in a progovern-
ment Managua newspaper on Nov. 6. A few
weeks before the publication, Philip Agee
visited Managua and charged at a press con-
ference that at least 10 CIA agents were
"hiding" in the embassy's political section.
The former CIA agent, who has been de-
prived of his passport and is now reported
to be living in Greece, did not list the names
but said they "are probably in the hands of
state security already." The embassy re-
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S 2082 CONGRESSIONAL RECORD - SENATE
fused to say whether or not the people
named were, in fact, agents.
Successive administration and CIA direc-
tors have pleaded for laws to punish Agee
and the handful of other former agents or
private citizens connected with the Covert
Action Information Bulletin who have made
names for themselves by naming others.
Now the Senate is on the verge of approv-
ing the "Names of Agents" bill. Support is
overwhelming (the House voted 354-46 for it
in September), and there is no question it
will bass. The debate is over the spillover
effect on investigative journalism in this
country.
The bill before the Senate would set pen-
alties of up to $50,000 in fines and 10 years'
imprisonment for disclosure of names of
CIA agents by a former government employ-
ee and up to $15,000 and 3 years in prison
for disclosure by a private citizen.
While "getting the bad guys," as Sen.
Joseph Biden (D-Del.) put it in a Senate
debate last week, has wide support in Con-
gress, in the civil liberties community and
among many constitutional lawyers, editors
and publishers, the bill is viewed as an at-
tempt to use a sledge-hammer to smash a
gnat.
The American Civil Liberties Union has
called the bill unconstitutional and a threat
to the First Amendment guarantee of free-
dom of speech. But as the bill seems likely
to pass, the ACLU has backed efforts by
Biden and a majority of the Senate Judici-
ary Committee to insert more restrictive
language in it.
At the heart of the Senate debate so far is
whether the bill would discourage reporting
such as the New York Times series last year
that revealed that ex-CIA agents Frank
Terpil and Edwin Wilson had trained terror-
ists on behalf of Libyan leader Moammar
IChadafy.
The Times editorialized recently that no
matter how much those reports served the
U.S. public interest, "a wrathful prosecutor
armed with the pending bill" could attack
the newspaper for publishing them.
Of such concerns, the bill's chief sponsor,
Sen. John Chafee (R-R.I.) said: "That is ab-
solute nonsense. The people who say this
have not read the legislation. Wilson and
Terpil were former agents, and disclosure of
their names would not be penalized under
this bill."
The rebuttal that Terpil and Wilson still
claim to be CIA informants and might be
considered current agents, thereby trigger-
ing the law, has not yet been addressed in
the Senate debate. But staff aides to the
Senate Intelligence Committee said the CIA
had flatly denied that the two men were
still connected with the agency in any way.
Biden wants the law to require proof that
the revelation of an agent's name was in-
tended to harm foreign Intelligence-
gather-ing. The Chafee version, backed by the
White House, would require only the judg-
ment that damage was done. Each claims
that his version is the more protective of le-
gitimate Journalistic enterprise.
Senate Intelligence Committee staff chief
Rob Simmons said he though Chafee had
the votes at the moment. The Biden move,
if successful, might cripple the bill's chances
by forcing a conference with the House,
which already adopted language similar to
Chafee's "If we have a conference on this
issue, we may not have a bill this session,"
he said.
Mr. CHAFEE. Mr. President, it is my
understanding that there will be no
votes today. It is our hope that we can
get a vote on this matter tomorrow.
I hope that before we do vote, Mem-
bers will take the occasion to read and
study the record of this matter. I have
discussed this with the principal man-
ager on the other side, the Senator
from Delaware (Mr. BinEr). It is our
hope, too, that we can have perhaps
an hour and a half, evenly divided,
before we vote on the amendment,
then vote on the amendment, and
then vote on the bill.
I urge my colleagues to support the
amendment and the bill. If we do so
we are confident that we will have leg-
islation in this matter.
If the amendment is defeated and
the bill is passed, it will be quite differ-
ent from the measure that has passed
the House.
Mr. LONG. Mr. President, will the
Senator yield?
Mr. CHAFES. I yield.
Mr. LONG. I should like the Senator
to help me focus my view on the issue
that will be in dispute on the bill. It is
my understanding that the Senator's
view is that it should be against the
law for an American to needlessly
identify one of the agents of the CIA,
particularly an agent who tends to try
to gather information on a covert basis
for the United States.
Do I correctly understand that one
of the most controversial features is
the question of :whether the person
who identifies the CIA agent should
do so with the intent to adversely
affect the security of the United
States, or whether it should be ade-
quate that to identify the agent
should become a crime against the
laws of the United States, without re-
quiring the showing of an intent?
Mr. CHAFEE. I am not trying to
draw out my answer, but the answer to
the first question is this: The commit-
tee bill has language which states:
Whoever, in the course of an effort to
identify agents, with the intent to impair or
impede the foreign intelligence-
The language of the amendment I
have presented says:
Whoever, in the course of a pattern of ac-
tivities intended to identify an agent-
So there is an intent standard at
that point. I continue:
and with reason to believe that these activi-
ties would impair the intelligence activities
of the United States.
So the whole difference does not
hang on the reason to believe versus
the intent. I believe it would be an in-
adequate explanation of the difference
to say that the difference is solely
that.
Mr. LONG. Then, the Senator sug-
gests that the law would place a
burden on this Government to prove
that there was an intent on behalf of
the perpetrator to adversely affect the
security of the United States.
Mr. CHAFEE. Under the committee
language.
Mr. LONG. But I want to know what
the Senator's position is, what he is
advocating in this regard.
Mr. CHAFES. What I am advocating
is that the existing language in the
committee bill; namely, "Whoever, in
the course of identifying an agent,
March 15, 1982
with an intent to impair or impede the
United States" is chilling to the news-
man who publishes a series of articles
critical of the CIA, or of U.S. intelli-
gence activities. He has built up a
background which would be indicative
of his intent to impair or impede,
when it would not really be germane
to what he has done.
In other words, when you go into
somebody's intent in a matter such as
this, it is harmful to the person, and it
is difficult for the prosecution as well.
It is difficult for the prosecution, be-
cause the defendant says:
True, I disclosed the names of these
agents. Admittedly, I publish the "Covert
Action Information Bulletin." I revealed
Mr. Welch's name. But my intent was not to
impair or impede the intelligence activities
of the United States. My intent was to im-
prove them, because these people are spoil-
ing the reputation of the United States by
what they are doing in Nicaragua or Athens,
Greece, or wherever it is. They are impair-
ing the United States. Thank goodness for
me, the publisher of these documents, be-
cause I am helping our Nation.
Not only is that a defense that could
be undertaken, but, indeed, it is what
they are presently saying. That is one
side of it. That is looking at it from
the standpoint of the Government's
perspective.
Look at it from the other side, from
the side of a newsman who discloses
the name of an agent inadvertently.
But who has been extremely liberal,
let us say. He thinks that everything
the United States has done is wrong
and that the CIA has misbehaved. He
has published a long series of articles
on that. He also has pointed out that
the Justice Department is crooked.
They are for sale. They are bad actors.
He is critical, critical, critical. Then,
inadvertently, he discloses the name of
an agent.
He is prosecuted, and the prosecu-
tion says his Intent is clear, and they
bring in all these articles from the
past to show his intent.
In my judgment that is chilling on
writers and Journalists. The reason to
believe language is an objective stand-
ard. We ask whether a person would
have reason to believe that the disclo-
sure impedes the United States, rather
than try to get within the breast of
the defendant and ask what was his
intent?
Mr. LONG. I think the Senator has
a good point. It seems to me that it
would provide very little protection for
our agents if all one had to do was to
indicate that he has no sympathy
whatever for the CIA, he does not
think there should be a Central Intel-
ligence Agency; he thinks it has done a
horrible job and should be abolished.
Therefore, one could well argue, and
I would think with logic, feeling that
way, that it should be abolished, it
should not operate at all. There
should be no CIA; that under those
circumstances if he publishes the
names of every agent of whom he had
any knowledge and even if he had
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CONGRESSIONAL RECORD - SENATE S 2083
once been in the CIA and knew a lot of
agents he could take the view he was
not seeking to undermine the security
of the United States; what he was
doing, according to him, would be to,
further protect the security of the
United States because he does not
think we should fight a war with
anyone and that the CIA was likely to
create a war rather than prevent one.
So if one wanted to take that point
of view, he could very well take the
view that he is not guilty of crime at
all; he is simply doing what he thinks
is right and his intention Is not to vio-
late the security of the United States,
his intent is prevent the United States
from fighting anybody or even defend-
ing itself against anybody.
I can see how that if one Is going to
use the so-called subjective test, what
did that person have in mind, then if
that person, misguided though he may
be, thought that he was doing some-
thing that was in the ultimate best in-
terest of the United States he would
not be guilty of a crime.
I think that the test the Senator Is
suggesting makes better sense. If that
person would have reason to believe or
a reasonable person would have cause
to believe that to identify these agents
would adversely affect the security In-
terests of the United States he would
be guilty of a crime, and to me It
makes better sense.
Do not most of our criminal statutes
work on the basis of what a person
would reasonably expect under cir-
cumstance s rather than what. that par-
ticular person actually thought?
Mr. CHAPEE. I put in the RECORD a
series of statutes.
The argument given by many of the
former prosecutors around here is
that you always have to prove intent.
You have to have intent to prove
murder or what It might be, and that
this reason-to-believe standard Is a
new one that we have pulled up just to
get easier prosecutions. This Is not the
situation at all.
We have put a series of acts on our
books now in 18 U.S.C. dealing with
this very standard that the Senator so
eloquently spoke to.
It is not a new standard and, fur-
thermore, It is not just this element
alone that one has to prove: That he
would have reason to believe thAt he
would impair intelligence activities of
the United States. There are six other
standards of proof. There has to be, of
course, a pattern of activities. You
have to prove a pattern of activities in
which the person intended to identify
and expose covert agents. So there Is
that intent in our language.
Mr. LONG. I find myself wondering
whether the language that the Sena-
tor would suggest is actually strong
enough. I mean that would cause this
Senator to wonder. Actually what we
really want is to prevent those who
have the knowledge of our agents to
avoid needlessly Identifying those
agents to our enemies. That is what
we have in mind.
Mr. CHAFEE. That Is It.
Mr. LONG. I would hope that we
would have an effective statute by the
time we are through. I find myself
agreeing with the Senator. If you are
going to make it depend dpon the
intent of the person who Is revealing
the identity that person might be in
good faith in his mind In seeking to
identify them ' all. that he does not
think there should be a CIA anyway,
and If that were the case, I would
think one would feel that he was not
guilty of Intending to Injure the secu-
rity of the United States.
Mr. CHAFEE. Just on this point I
quote now on the very point the Sena-
tor is making. This is the testimony
before the House Committee on Intel-
ligence, on the last day of January last
year, January 1981. and this is one of
the publishers of the "Covert Action
Information Bulletin" which special-
izes In naming names. Listep to the
rationale of Mr. Schaap, the Publisher.
Our publication ... is devoted to expos-
ing what we view as the abuses of the West-
ern intelligence agency. primarily though
not exclusively the CIA, and to expose the
people responsible for those abuses.
We believe the best thug for the security
and well-being of the United States would
be to limit severely. if not abolish, the CIA.
Our intent both in exposing the abuses of
intelligence agencies and in exposing the
people responsible for those abuses is to in.
crease the moral force of this Nation, not to
lessen it. That the CIA would ass mne our
intent Is simply to Impair or impede their
foreign Intelligence also seems likely. Pa-
triotisn Is to some extent In the eyes of the
beholder.
In their eyes they are patriots. They
are doing a tremendous service.
And that Is exactly the point the
Senator Was making.
Mr. LONG. I thank the Senator.
Mr. CHAFES. I thank the Senator.
Mr. KENNEDY. Mr. President, I
support S. 891, the Agents Identities
Protection Act. We should not adopt
the substitute language offered by the
Senator from Rhode Island (Mr.
CCAras).
At the crux of this debate is the
intent Issue in section 801(c) of the
act. That is the basic difference be-
tween the bill reported by the Judici-
ary Committee, and the language of
the Chafee amendment.
The difference is a narrow but very
important one. Both versions of the
bill are expressly designed to permit
prosecution of a group of persons,
such as Philip Agee, who have made a
clearly determined effort to disclose
the identity of Intelligence agents and
officers for the sake of their exposure.
At the same time, advocates of both
versions seek to reach that small
group without encroaching upon the
first amendment rights of those who
seek informed public debate on foreign
affairs.
Many scholars, as well as the jour-
nalistic community have raised serious
questions about whether it is constitu.
tional to make criminal any publica-
tion based wholely on unclassified
sources. After careful study of that
issue I have concluded-that in careful- .
ly limited circumstances a criminal
penalty is appropriate and constitu-
tional. But the fact that we are tread-
ing near the line of the first amend-
ment in that regard, should make us
all the' more careful In writing the
standard for the defendant's state of
mind required for prosecution.
Let us be clear on the narrow issue
before us. NO Senator approves of In-
tentional efforts to endanger our con-
vert intelligence officers or to end
thbir usefulness. The question is how
to punish such attempts without ren-
dering our legislation unconstitutional
and without unnecessarily chilling a
vigorous free press.
But if we overreach in regard to this
legislation It will work against the ob-
jective of the legislation which we all
share.
Last year the Judiciary Committee
agreed to my amendment to make this
bill censtitutioaal. In a subsequent
effort to obtain agreement on the bill.
I proposed an alternative modification
to insure constitutionality. That pro-
posal became the bill approved by the
House Intelligence Committee and re-
cently by the Senate Judiciary Com-
mittee. We can pass that bill today.
We could have passed it last year.
Those of us concerned about the out-
rageous public disclosure of intelli-
gence agents ide>pt4tiee simply for the
sake of their exposure would like to
see legislation passed as soon as possi-
ble, which will be upheld In the courts
and put those reprehensible efforts
out of business.
The Judiciary Committee bill re-
quires proof of intent, to harm. As the
many hearing witnesses noted, such an
intent requiremep Is quite common in
our criminal statutes. Senator Caam
seeks to replace that Intent require-
ment with a so-called objective
"reason to believe" test. Under that
test, a violation could be found regard-
less of the defendant's Intent.
The CIA and the Justice Depart-
ment have Indicated on the record
that while they have a preference.
they can live with either version.
The CIA has cited the recent Su-
preme Court decision in Haig against
Agee that upheld revocation of Agee's
passport. In his July 18 letter to Sena-
tors. Director Casey wrote that:
The Court's opinion should dispel any re-
sidual concerns about the constitutionality
of the identities legislation.
In fact, Mr. President. the opinion
does precisely the opposite. That case
indicates that without the specific
intent standard in the committee bill.
the legislation would raise first
amendment question. Chief Justice
Burger, writing for the Court, noted
that the passport revocation "rests in
part on the content of Agee's speech
specifically his repeated disclosures of
intelligence operations and the names
of intelligence personnel." Justice
Burger dismissed the first amendment
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CONGRESSIONAL RECORD - SENATE March 15, 1982
problems because of Agee's expressed
intent to harm intelligence activities.
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. (Haig v. Agee
(Slip opinion, p. 27) (1981) (emphasis
added).)
Some officials have argued that
prosecution, would be easier under a
"reason to. believe" standard. In my
view, a more thoughtful analysis sug-
gests that It could be more difficult for
the Government to prosecute under
that standard.
Under a "reason to believe," test, de-
fendants could create an Insurmount-
able "greymail problem" by threaten-
ing to expose other sensitive informa-
tion at the trial. For example. defen-
sants could question the anonymity of
the agent who was exposed. Defend-
ants also could seek discovery of coun-
terintelligence Information about the
effectiveness of cover arrangements
and whether hostile Intelligence serv-
ices or terrorists had in fact already
identified the agent. In many cases
this could present an Insuperable grey-
mail problem for the Department of
Justice, despite the greymail statutes
passed in - the last Congress, because
the matters on which discovery might
be sought would be relevant to the de-
fense under an objective reason to be-
lieve standard. The greymail statute
allows the court to bar discovery only
on issues which are not directly rele-
vant to the elements of the offense.
Under the reason to believe test de-
fendants might even be able to ask for
the names of other agents whose iden-
tities had been exposed and the
damage assessments of such expo-
sures. That information would be rele-
vant to determine whether there was
reason to believe that the disclosure of
the particular Identity Involved would
significantly damage the Intelligence
efforts of our Government.
Under the subjective-intent stand-
ard, such greymail discovery would be
of slight relevance and much easier to
limit. These prosecutorial difficulties
of a reason to believe standard under-
line the disturbing possibility that It
would not deter or punish those at
whom it is aimed, and that it would
merely chill legitimate journalistic
analysis of U.S, policy and activities
abroad.
Last-minute floor statements in the
context of conflicting elements of leg-
islative history in both bodies may not
be sufficient to protect even specific
categories of activities which everyone
wants to exempt. In addition, those
few examples cannot possibly antici-
pate and exhaust the variety of cir-
cumstances in which legitimate activi-
ty could be deterred by this criminal
statute with severe penalties.
A broad spectrum of constitutional
scholars. civil libertarians, and leaders
of the news media have expressed
deep concern about the substitute lan-
guage proposed by ,Senator CnAFzz.
The requirement of "intent to
impede or impair" the intelligence ac-
tivities of the United States is a rea-
sonable and necessary limitation to
protect the first amendment activities
of journalist, scholars, and others
whose purpose Is reporting, analysis,
and criticism of controversial or ques-
tionable actions by the Government.
The Chafee amendment language
would reach beyond the Philip Agee's
in our midst. It would put university
presidents concerned about covert in-
telligence agents among their faculty,
or journalists reporting on the activity
of rogue intelligence employees on
behalf of foreign terrorist regimes, in
danger of intimidation by Government
investigators, if not actual prosecu-
tion.
The reason to believe standard
simply is not adequate protection for
legitimate first amendment activities.
Correspondents may have some reason
to believe that the results of their in-
vestigative reporting could have some
temporary impact on secret intelli-
gence activities. In fact, the Justice
Department witness told the Senate
Judiciary Committee that in the De-
partment's view the Chafee amend-
ment would subject newsmen to crimi-
nal prosecution even for mere negli-
gence. This would create a very chill-
ing effect on a free press and be as
dangerous to our society as the evil at
which the bill is properly aimed.
Hope my colleagues will support the
effective and constitutional provisions
of the committee bill.
? Mr. ROTH. Mr. President, I intend
to vote against the amendment offered
by the distinguished Senator from
Rhode Island (Mr. CxnF=s) to S. 391,
the Intelligence Identities Protection
Act. Although I -was a cosponsor of
Senator CRarac's original legislation. I
believe the modifications made in the
Judiciary Committee, at the Instiga-
tion of my able colleague from Dela-
ware, Senator Bmnw, preserve the
basic purposes of the bill while elimi-
nating any chilling effect that the
threat of prosecution could have on le-
gitimate news reporters and organiza-
tions.
As a member of the Intelligence
Committee, I am determined, as I am
sure every Member of the Senate is de-
termined. to take,strong steps to pro-
tect the identities of our Nation's in-
telligence agents, The deliberate dis-
closure of names of our agents, some
of whom are stationed In areas where
violent forces inimical to U.S. interests
operate virtually unchecked, is a seri-
ous threat to our national security,
not to mention to the lives and safety
of the agents themselves and their
families. The systematic disclosure of
agents' names and assignments under
the guise of investigative journalism Is
a reprehensible practice that must be
halted by providing for the criminal
prosecution of those individuals who
deliberately endanger the lives of
agents with the intent of sabotaging
U.S. intelligence activities.
As urgent as this need is, however,
we must take care that our response to
it not impinge on the constitutional
rights and freedoms of legitimate news
organizations and reporters. I believe
that Congress should always tread
carefully when legislating in areas
that touch on our basic constitutional
rights, and that any potential intru-
sion on such fundamental tenents of
our democracy as freedom of the press
must be minimized. Our way of life
and our system of government have
survived and prospered for all these
years largely because a free, unfet-
tered and aggressive press has func-
tioned to insure an informed citizenry.
I would not want to see this Congress
take action that might blunt the vital
watchdog role of the press in seeking
out and exposing wrongdoing by Gov-
ernment officials or agencies, unless
such action was absolutely necessary
to protect our national security or the
lives and safety or our citizens.
Those who oppose the Chafee
amendment, including representatives
of virtually every major news organi-
zation in this country, argue that the
"reason to believe" language of the
Chafee amendment would place re-
porters and broadcasters at risk of
criminal prosecution for reporting in-
formation that could lead to the iden-
tification of Intelligence agents-even
if such information had already been
made public, and even if the intent of
the reporter or broadcaster was to fur-
ther the public interest. For example,
they argue that the recent disclosure
of questionable activities by former
CIA agents by a number of newspa-
pers, including my own hometown
paper. the Wilmington News-Journal.
could subject those responsible for the
articles to criminal prosecution be-
cause they had "reason to believe"
such disclosures would Impair U.S. for-
eign Intelligence activities.
After a careful review of these argu-
ments, as well as those offered by sup-
porters of the Chafee amendment, I
have concluded that the reason-to-be-
lieve standard is unnecessarily broad,
and that it could tend to deter legiti-
mate news organizations from pursu-
ing and reporting information the dis-
closure of which would be in the
public interest. The -intent standard in
the bill reported ` by the Judiciary
Committee appears to be sufficient to
halt the systematic and deliberate
publication of the names and assign-
ments of U.S. intelligence agents. In
fact, the staff of the Covert Action In-
formation Bulletin. a publication spe-
cializing in publishing the names of in-
telligence agents with the clear intent
of disrupting U.S. intelligence activi-
ties. announced In the October 1981
issue of the Bulletin that the "immi-
nent passage" of S. 391 had forced
them to discontinue their despicable
practice of "naming names" of intelli-
gence agents "until such time as the
constitutionality of the act has been
decided by the courts." Thus. with re-
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March 15, 1985 CONGRESSIONAL RECORD - SENATE
spect to this particular publication at
least, this legislation appears to have
had its desired effect even before it be-
comes law.
Mr. President. the question of con-
stitutionality raised by the editors of
the Covert Action Information Bulle-
tin is also of concern to me, but for an
entirely different reason. I believe it is
vitally important that this legislation
clearly stand the test of constitution-
ality at the time It becomes law, no
there will be no question of swift pros-
ecution and punishment for those In-
dividuals who deliberately disclose the
Identities of intelligence agents. If the
bill's constitutionality is suspect, some
hardcore purveyors of agents' Identi-
ties may be wining to continue their
pernicious activities In the belief that
the law will eventually be overturned
by the courts. I believe this risk is a se-
rious one. No less a constitutional au-
thority than Prof. Philip Kurland,
professor of law at the University of
Chicago. has said of the reason-to-be-
lieve standard:
I have little doubt that it Is unconstitu-
tional. I cannot we how a law that inhibits
the publication, without malicious intent, of
Information that Is in the public domain
and previously published can be valid ? ? ? I
should be very much surprised if ? ? ? the
? ? ? courts were to legitimize what 1s, for
me. the clearest violation of the First
Amendment attempted by Congress in this
era.
Rather than approving legislation of
questionable constitutionality, and
absent any convincing showing that
those responsible for such publications
as the Covert Action Information Bul-
letin would be able to avoid conviction
under the "Intent" standard of the Ju-
diciary Committee bin, I believe the
wisest course for the Senate to follow
at this juncture is to pass the bill with
the "intent" standard Intact, thus
minimizing any possible intrusion into
first amendment rights, and then ob-
serve its effect on those who would
damage our national security by sys-
tematically disclosing the names of
our intelligence agents. If this practice
continues, and if it subsequently be-
comes clear that juries are unwilling
to convict those who violate the law,
the Congress could then reconsider
and strengthen the law to Insure the
certain prosecution and conviction of
those whom the law is intended to
reach. Thus, in opposing the Chafee
amendment at this time, I would re-
serve the right to support a broader
standard for prosecution at some time
in the future if such a standard proves
necessary to protect the Identities of
our agents and the vital activities of
our Intelligence community.
Mr. President, I ask that an editorial
from the Wilmington Morning News
entitled, "Spies Must Spy but Freedom
Must Be Preserved," be printed in the
REOORD.
The editorial follows:
S 2085
IF!om the Wilmington. (Del) Meaning Ingo with international terrorists, possibly
News, Oct. 37. I/ 11 damaging to the United States, are precisely
arms MUST err gas lksasos Moan Bs the kind of information the public has a
pk right to know.
Utseaaieheat has always smTOUnded em- The Senate version would protect legitl-
met 6 effee0s to aecrne Imetn lam- mate journalistic endeavor and, by exten?
tinily. Bpying my be a necessary eompo~ aion. protect the right of Americans to gain
neon of nn. _ _-' security. The D pima Of knowledge of and thereby judge the artful -
freedom and self-determination that perme-
ate our society, however, demand that such
government operations be constantly and
vigilantly supervised.
We are used to assurances that the Cen-
tral Intelligence Agcy does not so beyond
the bounds of acceptable saorality-albeit
such bounds are stretched to the breaking
intrigue.
point in the circles of International
We are also aware that such assurances
have been. far too frequently, little more
than lies.
Tomorrow the Senate is expected to vote
on a bill that could make It all but Impossi-
ble for American citizens to be Informed
about abuses In covert activities being car-
ried out, presumably. on their behalf.
The bill, S. 391. called "The Names of
Agents Bill" is aimed at protecting U.S.
secret agents. There is no quarrel with the
intent. As distasteful as some secret activi-
ties might be, only fools believe that the
United States can deal effectively In these
times without some form of covert Interna-
tional intelligence operations..
Those who disclose the names of secret
agents with the expressed Intent of jeopard-
izing the agents' positions should be held ac-
There was considerable testimony in Con-
grew that the House version Y unconstitu-
tionaL Philip Kurland, the conservative con-
stltutional scholar from the University of
Chicago, described the 'reason-to-believe"
version as "the clearest violation of the
First Amendment attempt by Congress In
this era." If the Home version passes, It
likely will be overturned in court. But. In
the interim the law would base a chilling
effect on legitimate journalistic pursuit.
Those who seek the broad prohibitions on
disclosure use an old tactic. "If you don't
buy the whole package, they say "then you
must be one of those who are trying to tear
down the country." It doesn't wash.
Secret agents must be protected. But
there have been abuses of power in covert
Intelligence operations. When covert agents
act outside the circle of morality defined for
them they damage national security. They
cannot operate unbound.?
Mr. CHAFES. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll -
been recent, wen-publicized examples oft can the roll.
such reprehensible actions. Such disclosures
put the agents' lives and the lives of their
families and friends In danger. And such dis-
closures could severely damage the security
of the United States.
Insofar as S. 391 and the similar House
version. H.E. 4. address the protection of
agents and the safeguarding of national se-
curity, they are supportable. But the House
bill, in one provision, extends the govern.
ment's right of self-protection into a consti-
tutionally unacceptable area. The Senate
bill, thanks largely to the efforts of Dela-
ware's Sen. Joseph R. Biden Jr? does not.
But when the bill Is debated tomorrow, ef-
forts will be made on the Senate floor to
make the House version official policy.
The House version would subject to crimi-
nal penalties those who disclose identities
"In the course of a pattern of activities in-
tended to identify and expose covert agents
and with reason to believe that such activi-
ties would Impair or Impede the foreign in-
telligence activities of the United States.-
The Senate version, with the Bider
amendment, would apply only to those who
disclose identities "in the course of an effort
to identify and expose covert agents with
the intent to Impair or impede the foreign
intelligence activities of the United states
by the fact of such identification and expo-
sure."
At stake are the constitutional guarantees
of freedom of speech and freedom of the
presrc The Senate version would, rightly.
Punish people like Phillip Agee whose dis-
closure of agents' names put their lives and
national security In danger. The House ver-
sion would not only short-circuit Mr. Agee's
kind of behavior but also gag responsible
disclosure of intelligence abuses. It would
punish even those who secured their infor-
mation through documents open to the
public scrutiny.
Under the House version, the News-Jour-
nal and other papers which disclosed the
highly suspect activities of former American
spy Edmund Wilson would be In jeopardy.
Mr. Wilson's current CIA links and his deal-
ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it Is so ordered.
WELCOME PRBBIDCNT SIAD
BARBS, DEMOCRATIC REPUB-
LIC OF SOMALIA
Mr. HAYAKAWA. Mr. President, on
March 10 Maj. Gen. Sind Barre, Presi-
dent of the Democratic Republic of
Somalia, began his official visit to the
United States.
On this occasion, I would like to wel-
come President Barre to our country
and express to him the good will and
sympathy which the U.S. Senate has
for Somalia. We wish to work with
him for better and more cordial rela-
tions in the future. Both the United
States and Somalia desire to limit
Soviet and Cuban Influence in Africa
and Insure the continued development
and security of Somalia.
The United States has made sub-
stantial contributions to Somalia, both
directly and through the United Na-
tions High Commissioner for Refu-
gees. The purpose of these contribu-
tions is to help alleviate the suffering
of the innocent victims of the Ogaden
war, develop Somalia's economy and
supply needed arms to the Somalian
army. We realize these efforts have
not solved the underlying problems of
refugee influx and Inadequate arms,
but in the next fiscal year we will
extend increased economic aid and
FMS, foreign military sales, to help to
develop the country and provide for its
defense needs. In turn, the Somali
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S 2086 CONGRESSIONAL RECORD - SENATE
Government extends to the United
States use of air facilities at Mogadi-
shiu and Berbera and naval facilities
at the port of Berbera. We are fortu-
nate to have friends like Somalia in
the strategic Horn region, which is
threatened by Soviet adventurism.
RESOLUTION TO REQUIRE
ABSCAM/FBI INVESTIGATION
BY THE COMMITTEE ON
RULES AND ADMINISTRATION
Mr. THURMOND. Mr. President,
the rules of the Senate and precedent
establish that the Committee on the
Judiciary has oversight responsibility
for the operations of the Department
of Justice and the Federal Bureau of
Investigation. With respect to the FBI,
that responsibility has been delegated
by the committee to its Subcommittee
on Security and Terrorism.
Accordingly, under ordinary circum-
stances, a proposed investigation of
the activities of the FBI would be
properly conducted only in the Com-
mittee on the Judiciary. However, in
the case of the proposed investigation
of FBI and Department of Justice ac-
tivities in the Harrison Williams
matter, in my judgment, the Commit-
tee on Rules and Administration is the
proper forum because of the direct in-
volvement of a former member of the
Senate and because of the issues
which will necessarily arise due to that
connection.
So long as the proposed Investiga-
tion remains narrowly focused in the
manner prescribed in the Senate reso-
lution now under consideration in the
Committee on Rules and Administra-
tion, as chairman of the Committee on
the Judiciary, I would have no objec-
tion to the Committee on Rules and
Administration acting on behalf of the
Senate as that resolution specifies.
THE NATIONAL CEMETERY IN
FLORENCE, S.C.
Mr. THURMOND. Mr. President, I
recently received a concurrent resolu-
tion of the South Carolina Legislature
memorializing Congress to promptly
take such measures as are necessary to
purchase land presently available for
acquisition for the purpose of expand-
ing the Florence, S.C., National Ceme-
tery.
Mr. President, the Veterans' Admin-
istration has projected that the Flor-
ence National Cemetery will reach its
capacity by the middle of this year. If
it is not expanded, only one national
cemetery, in Beaufort, S.C., will
remain available to the 336,000 veter-
ans of our State. No longer will the
families and survivors of these veter-
ans be assured that their loved ones
will be interred locally, rather than at
some distant cemetery.
I, therefore, urge the Veterans' Ad-
ministration to explore all available
methods for expanding the Florence
National Cemetery. I would also like
to restate my willingness to assist in
this effort in any way that I can.
Mr. President, in behalf of my dis-
tinguished colleague, Mr. HOLLINGS,
and myself, I ask unanimous consent
that the concurrent resolution of the
legislature of South Carolina be in-
cluded in the RECORD at the conclusion
of these remarks.
There being no objection, the con-
current resolution was ordered to be
printed in the RECORD, as follows:
CONCURRENT RESOLUTION
Whereas, the National Cemetery in Flor-
ence County, South Carolina, provides
grave-sites for veterans and serves the com-
mendable purpose of permitting the inter-
ment of veterans in a special local place of
honor; and
Whereas, ninety-five veterans were buried
in the National Cemetery last year, leaving
only fifty-one gravesites available for subse-
quent interments; and
Whereas, it is necessary and desirable that
additional gravesites in adequate numbers
be made available for deceased veterans of
South Carolina so that the families and sur-
vivors of such veterans are assured that
their loved ones will be interred locally
rather than at some distant cemetery: Now,
therefore, be it
Resolved by the House of Representatives,
the Senate concurring: That the Congress of
the United States is memorialized to
promptly take such measures as may be nec-
essary to purchase land presently available
for acquisition and contiguous to the Na-
tional Cemetery in Florence County, South
Carolina, to provide for the expansion of
the cemetery by providing additional grave-
sites for veterans. Be it further
Resolved That copies of this resolution be
forwarded to the President of the Senate,
the Speaker of the House of Representa-
tives and each member of the South Caroli-
na Congressional Delegation in Washington.
D.C.
REGULATORY REFORM ARTICLE
BY SENATOR LAXALT
Mr. THURMOND. Mr. President, I
would like to call the attention of my
colleagues to an article which ap-
peared this morning in the Washing-
ton Post. The article, entitled "Don't
Be Scared Off By Regulatory
Reform," was written by Senator
LAxALT, who chairs the Regulatory
Reform Subcommittee of the Judici-
ary Committee. As I am sure most of
my colleagues are aware, Senator
LAxALT is the primary sponsor of S.
1080, the Regulatory Reform Act,
which will shortly be coming before
the full Senate.
In his article, Senator LAxALT de-
scribes in general the provisions of S.
1080, discusses in greater detail the
oversight provisions of the bill, and re-
sponds to the criticisms and concerns
expressed by Senator GLENN in his
February 25 Washington Post article
regarding executive oversight of inde-
pendent agencies. In light of the im-
portance of issues raised by this legis-
lation and of the fact of imminent
floor consideration, I commend Sena-
tor LAXALT's very helpful and inform-
ative discussion of S. 1080 to my col-
leagues. I therefore ask unanimous
March 15, 1982
consent that the article be printed in
the RECORD.
There being no objection, the article
was ordered to be printed in the
RECORD, as follows:
[From the Washington Post, Mar. 15, 1982]
DON'T BE SCARED OFF REGULATORY REFORM
(By PAUL LAXALT)
Judging by opinion polls, the American
people are presenting Congress with a
unique challenge in "regulatory reform": we
must curb regulatory excesses while main-
taining our commitment to important na-
tional goals-worker safety, clean air and
water and the like. The Regulatory Reform
Act, sponsored by Sens. Patrick Leahy, Wil-
liam Roth, Thomas Eagleton, myself and 77
other senators, and soon to be considered by
the Senate, responsibly meets this chal-
lenge. Enactment of this kind of legislation
is long overdue.
Unfortunately, some would unnecessarily
shield an important part of the activities of
so-called "independent" agencies from effec-
tive public accountability. The views of
these advocates are wrong based on long-
standing rules of law; they are wrong based
on the provisions of the Regulatory Reform
Act; and they are wrong based on the bal-
anced policies our constituents expect us to
put in place.
This bill is designed to update our admin-
istrative procedures to meet the regulatory
challenges of today, to improve the effec-
tiveness of federal regulation, to decrease its
unnecessary burdens and to increase the ac-
countability' of federal agencies. How to
ensure that federal agencies comply with
the law and execute their missions fairly re-
mains one of the central challenges of ad-
ministrative law. To achieve agency ac-
countability, the Regulatory Reform Act
contains a carefully crafted balance of limit-
ed judicial and presidential oversight, a bal-
ance that preserves the rule-making author-
ity given to all agencies. Amendments to
weaken or upset this balance are simply un-
acceptable.
The heart of this act is the requirement
for the regulatory analysis of major rules, a
process by which agencies must publicly
evaluate the tradeoffs of their regulatory
proposals to improve their effectiveness and
reduce their costs. Yet because detailed Ju-
dicial review of such a technically complex
process is generally considered to lead to un-
necessary delay and judicial second-guessing
of substantive agency expertise, the act pre-
cludes regulatory analysis from being an in-
dependent subject of judicial review.
To ensure some oversight of such a cen-
tral element of regulatory reform, the act
authorizes the president to establish proce-
dures for regulatory analysis. Contrary to
suggestions that such a proposal is unprec-
edented, the regulatory reform bills report-
ed both by the Senate Governmental Af-
fairs Committee and by the House Judiciary
Committee during the 96th Congress con-
tained broad provisions for OMB review of
regulations without any distinction between
"executive" and "independent" agencies.
The real novelty of the Regulatory Reform
Act is that its executive oversight is much
more carefully circumscribed than the pro-
posals of the last Congress.
The president may establish procedures
for regulatory analysis only after publishing
them and receiving public comment. If the
president delegates this authority to an offi-
cial other than the vice president, that offi-
cial must be confirmed by the Senate. Most
importantly, the act explicitly ensures that
the decision-making authority of all agen-
cies is not altered.
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