THE INTELLIGENCE IDENTITIES PROTECTION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200060013-6
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 3
• Document Creation Date: December 21, 2016
• Document Release Date: September 25, 2008
• Sequence Number: 13
• Publication Date: March 3, 1982
• Content Type: OPEN SOURCE

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March 3, 1982 CONGRESSIONAL RECORD - SENATE 1) S 1447
over 5,000, worked in senior centers;
and 8.5 percent, over 4,000, worked in
outreach and referral services.
At its February hearing on the food
stamp and nutrition programs, the
State director of aging in Ohio and the
executive director of the Philadelphia
corporation on aging told the Special
Committee on Aging that they would
have no way of replacing senior aids
who are currently working in these
programs.
Therefore, the loss of these commu-
nity service jobs will threaten the abil-
ity of local agencies to continue to pro-
vide other services funded under the
Older Americans Act.
In addition to these damaging facts,
it is a serious human problem to ne-
glect the important of employment op-
portunities to the economic security,
the health, and the personal fulfill-
ment of older Americans. Virtually
every survey of older men and women
indicates that a majority want to have
the opportunity to continue some
form of work. And an overwhelming
majority-90 percent in the latest
Harris poll released in November-
favor abolishing the mandatory retire-
ment age:
At the same time we are struggling
to restore financial stability to the
hard-pressed social security system, we
are discouraging older workers who
want to work from doing so.
The administration indicates train-
ing and employment should be the re-
sponsibility of the private sector. I
agree that business and industry must
,play a far greater role in providing job
opportunities for older people. But we
face a long history of age discrimina-
tion, employment practices and pen-
sion policies which make it difficult-
and sometimes impossible-for older
workers to find jobs.
Merely saying that the private
sector should play a greater role is not
going to make it happen. We must
educate employers so that they will
recognize older workers for the essen-
tial resource they are to this Nation.
As a matter of fact, with the declining
number of younger workers projected
for the decade ahead, we will need to
have older workers stay on the job if
we are to maintain our standard of
living and improve our productivity.
PROTECTION ACT
Mr. DURENBERGER. Mr. Presi-
ent, the debate on the Intelligence
Identities Protection Act of 1981 is
both important and, in a sense, inevi-
table. We are proposing to write new
criminal law, and we know better than
to rush. into this with any sense of
celebration.
The crux of this debate is the matter
of intent in section 601(c). The Intelli-
gence Identities Protection Act as re-
ported has a specific intent standard
that many people find especially allur-
ing..I can sympathize with their desire
to insure that the bill we pass will not
penalize all Americans for the sins of a
few would-be destroyers of our intelli-
gence services. Like my colleagues, I
have listened to the points made by
news media, as well as those of consti-
tutional scholars and civil libertarians.
I understand their concern.
When you look at the actual lan-
guage, however, the differences be-
tween the bill as reported and the lan-
guage of the Chafee amendment are
limited. Both versions are designed to
put a stop to the leaking of intelli-
gence identities and to the disclosure
of such identities by persons whose
purpose in life is to expose our intelli-
gence officers and agents. Both at-
tempt to do this without infringing
upon the rights of the rest of us.
If you look at the report lahguage,
moreover, you'find that both versions
list similar actions that would not be
subject to criminal sanctions. And the
Chafee version, too, has - an intent
standard, although it is somewhat dif-
ferent from that in the bill as report-
ed.
The committee report that discusses
the Chafee language, No. 96-896, was
issued in 1980 by the Select Commit-
tee on Intelligence. There is no legisla-
tive history in this session on the
Chafee language, with the exception
of some remarks on the House floor
that were not intended to create a
formal record.
I would like, therefore, to make the
rest of my points in the form of a col-
loquy with the distinguished Senator
from Rhode Island. To the extent that
these points might be inconsistent
with the language of Report No. 97-
or co
e ma
One o
enior community services employ- tions in the common interest. Our nation is 201, they would, if Senator CHArEE's
th
e s
wi be
ment program is its demonstration of cal at such a winners if time the now. T Administration noand the tthe e amendment is approved, supersede
the significant contribution older Congress fail 'to accommodate differences such language.
workers can and do make to our soci- and cooperate in dealing with current seri- Is it your intent that pages 18 and
ety. ous economic problems. The threat to our 21-23 of Report No. 96-896 shall con-
It is a program that has more than nation demands prompt, effective and bi- stitute the legislative history of this
repaid the Federal Government's in- partisan action. amendment?
Llewellyn Jenkins, President, American Mr. CHAFEE. Yes, it is.
vestment of tax dollars in benefits to Bankers Association; James F. Ayl-
port
',bur communities. I urge my colleagues ward, President, Mortgage Bankers As- Mr. . 97-201 DUR DUR NBandERGER. Report Both No. Report
to continue their strong support for sociation; Fred Napolitano. President, No. that:
the title V program and to join me in National Association of Home Build-
opposing its elimination. ers; Robert R. Masterton, Chairman, The standard adopted in section 601(c) ap-
National Association of Mutual Sav- plies criminal penalties only in very limited
ings Banks; Julio S. Laguarta, Presi- circumstances to deter those who make it
ntributions of
j
f th
AN OPEN LETTER TO THE
PRESIDENT AND CONGRESS
ON THE ECONOMY
Mr., RIEGLE. Mr. President, today
in the-Washington Post there is a full
page advertisement, which Is, in the
form, of an open letter to President
Reagan and Members of Congress, by
the presidents of six major national
organizations expressing their concern
about the economy and urging an im-
mediate effort to try to bring about an
immediate course correction in eco-
nomic planning.
I ask unanimous consent that the
text of the ad be printed in the
RECORD.
There being no objection, the adver-
tisement was ordered to be printed in
the RECORD, as follows:
[From the Washington Post, Mar. 3, 1982]
AN Opm Izrrza TO PRESIDENT Ras OAR AND
MEMBERS of CONGRESS: MARCH S. 1982
(Joint Statement of: American Bankers
Association, Mortgage Bankers Association
of America, National Association of Home
Builders, National' Association of Mutual
Savings Banks, National Association of
Realtors?, and U.S. League of Savings
Associations.)
Prolonged high interest rates are creating
an economic' and financial crisis in this
country. In order to bring interest rates
down. Immediate action must be taken to
reduce massive federal budget deficits. More
than anything else, it is the spectre of an
overwhelming volume of deficit financing
which haunts housing and financial mar-
kets and poses the threat of economic and
financial conditions not seen since the
1930s.
Given these circumstances, there is no al-
ternative to: (1) slowing down all spending,
not excluding defense and entitlement pro-
grams; and, if necessary. (2) deferring previ-
ously enacted tax reductions or increasing
taxes. In order to have the necessary impact
on financial markets, these actions should
be taken prior to any increase in the ceiling
on the federal debt.
Even with these actions, the restoration of
financial stability and safety will be a pro-
longed process. It is necessary, therefore, to
adopt immediate but temporary measures to
address the critical problems of the indus-
tries which finance, market and produce
housing for American families. These indus-
tries have unfairly borne the brunt of de-
strpctively high interest rates. Unless imme-
diate and effective short-run measures are
adopted, the continued devastation of these
industries will, directly and indirectly, ag-
gravate the federal budget deficit and great-
ly increase the prospect of a general eco-
nomic and financial crisis.
In times of past crises in this nation, our
political leaders have come together in a bi-
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S 1448 CONGRESSIONAL RECORD - SENATE March 3, 1982
their business to ferret out and publish the other goals, forms an important safe-
identities of agents. At the same time, it guard for civil liberties. The amend-
does not affect the First Amendment rights ment before us would bring that safe-
of those who disclose the identities of guard into play, would it not?
prise agents as an integral
media part
reporting rti another of Intel- enter- Mr. CHAFEE. Yes it would, Senator
as news
ligeence failures a such fo or m abuses, academic oa studies DURENBERGER, and that is one reason
cemi
of U.S. government policies and programs, why I believe that my version Is actu-
or a private organization's enforcement of ally better for civil liberties than the
Report No. 97-201, however, adds a
caveat that was not in Report No. 96-
896:
Provided it is not done so in the course of
an effort to Identify and expose such agents
with the intent to impair or Impede the for-
eign Intelligence activities of the United
States.
Am I correct In my understanding
that this caveat is not required with
the Chafee amendment, because of
the.nature of the intent requirement
in that language?
Mr. CHAFEE. That is correct.
Mr. DURENBERGER. Under the
Chafee amendment, there would be
three elements of proof not found in
sections 601 (a) or (b). The United
States must prove
That the disclosure was made in the
course of a pattern of activities, I.e., a series
of acts having a common purpose or objec-
tive;
That the pattern of activities was intend-
ed to identify and expose covert agents; and
That there was reason to believe such ac-
tivities would impair or Impede the foreign
intelligence activities of the United States.
Note that It is the pattern of activi-
ties that must be Intended to identify
and expose covert agents. This more
objective requirement makes It clear
that the-defendant must be engaged in
a conscious plan to. seek out undercov-
er intelligence operatives and expose
them in circumstances where such
conduct would Impair U.S. intelligence
efforts. Report No. 96-896 had some
important language regarding this
conscious intent:
It is important to note that the pattern of
activities must be Intended to Identify and
expose such agents. Most laws do not re-
quire intentional acts, but merely knowing
ones. The difference between knowing and
intentional acts was explained as follows In
the Senate Judiciary Committee report on
the Criminal Code Reform Act of 1980:
As the National Commission's consultant
on this subject put It, "it seems reasonable
that the law should distinguish between a
man who wills that a particular act or result
take place and another who is merely will-
ing that It should take place. The distinc-
tion is drawn between the main direction of
a man's conduct and the (anticipated) side
effects of his conduct." For example, the
owner who burns down his tenement for the
purpose of collecting insurance proceeds
does not desire the death of his tenants, but
he is substantially certain (i.e., knows) It
will occur.
A newspaper reporter, then, would rarely
have engaged in a pattern of activities with
the requisite intent "to identify and expose
covert agents." Instead, such a result would
ordinarily be "the (anticipated) side effect
of his conduct."
This crucial distinction between the
main direction of one's conduct and
the side-effects that one anticipates
but allows to occur, because of one's
bill as reported out of committee.
Mr. DURENBERGER. Because the
intent standard in this amendment is
an intent "to identify and expose
covert agents," rather than an intent
"to impair or Impede the foreign intel-
ligence activities of the United
States," It is crystal clear that the fact
that a journalist had written articles
critical of the CIA which did not iden-
tify covert agents could not be used as
evidence that the intent standard was
met. Is that not correct?
Mr. CHAFEE. That is indeed correct,
and it Is a major reason why I intro-
duced this language in 1980, to replace
the "intent to impair or Impede"
standard that the CIA had originally
proposed. The Department of Justice
was very concerned that a subjective
Intent standard could have a chilling
effect on public debate regarding intel-
ligence, and I shared this concern.
The Intent standard in the bill as re-
ported by the Judiciary Committee
last year is somewhat different from
that in the bill as introduced in 1980,
but I still feel that my language estab-
lishes more clearly than theirs the
crucial point that a person's views re-
garding Intelligence policy cannot be
used to convict him. His or her acts
are what matter. '
Mr. DURENBERGER. Both Report
No. 96-986 and Report No. 97-201 con-
tain some very important language in-
dicating what activities are--and are
not-meant to be considered criminal
acts:
To meet the standard of the bill, a disclos-
er must be engaged In a purposeful enter-
prise of revealing names-he must, in short.
be in the business of "naming names.",
The following are illustrations of activities
which would not be covered:
An effort by a newspaper to uncover CIA
connections with it, including learning the
names of Its employees who worked for the
CIA.
An effort by a university or a church to
learn if any of Its employees had worked for
the CIA. (These are activities intended to
enforce the Internal rules of the organiza-
tion and not Identify and expose CIA
agents.)
An investigation by a newspaper of possi-
ble CIA connections with the Watergate
burglaries. (This would be an activity under-
taken to learn about the connections with
the burglaries and not to Identify and
expose CIA agents.)
An investigation by a scholar or a reporter
of the Phoenix program in Vietnam. (This
would be an activity intended to investigate
a controversial program and not to reveal
names.)
Am I correct in my understanding
that the approval of this amendment
would in no way change the fact that
it is the intent of Congress to exclude
such activities from the coverage of
this act?
Mr. CHAFEE. You are correct.
Mr. DURENBERGER. Report No.
96-896 emphasizes that:
The government, of course, has the
burden of demonstrating that the pattern of
activities was with the requisite intent to
identify and expose covert agents. The gov-
ernment's proof could be rebutted by dem-
onstrating some alternative intent other
than identification and exposure of covert
agents.
Looking at recent cases, there have
been a number of press stories naming
persons allegedly involved in Wilson
and Terpil's activities with Libya. It
would seem to me that such stories
would be protected, even though they
might identify covert agents, because
their intent is to investigate possible
involvement of CIA personnel in il-
legal-or at least highly controver-
sial-activities.
Similarly, David Garrow's recent
book, "The FBI and Martin Luther
King, Jr.: From 'Solo' to Memphis,"
purports to name some covert agents.
Now I am not thrilled by that act on
Garrow's part, and I am not sure that
he had to do it. But he was sure he
had to, and clearly his intent was to
explain what drove the FBI to wiretap
Martin Luther King, rather than to
identify and expose covert agents.
In both of these cases, the proposed
amendment would not threaten the
authors, because the exposure of any
covert agents would be the anticipated
side effect of their disclosures, rather
than the main direction of their ef-
forts. Is that not the case?
Mr. CHAFEE. You state the case
correctly, Senator DVRENBERGER, al-1,
though I, too, am disturbed by Mr.
Garrow's book.
Mr. DURENBERGER. In fact, this..
amendment would leave unchanged
the rights of all sorts of people to say
what they want, so long as they did
not engage in such a pattern of activi-
ties intended to Identify and expose
covert agents.
Thus, gadflies and radicals, as well
as more responsible individuals, may
continue to engage in all manner of in-
vestigations to try to prove this or
that about the CIA. So long as the
main direction of their conduct is
those investigations, the Government
would be hard put to demonstrate that
their intent was to identify and expose
covert agents, is that right?
Mr. CHAFEE. That is right, and it Is
an important point. We are not merely
protecting our friends who write for
the Providence Journal or the Minne-
apolis Tribune. If this amendment is
approved, nobody need fear prosecu-
tion other than those in the business
of naming names.
Mr. DURENBERGER. Report No.
96-896 goes on to state that:
The government must also show that the
discloser had reason to believe that the ac-
tivities would impair or impede the foreigni
intelligence activities of the United States.
For example, a reporter could show that by
printing a name of someone commonly
known as a CIA officer he could not reason-s
ably have expected that such disclosure
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March 8, 1982 CONGRESSIONAL RECORD - SENATE S 1449
would impair or impede the foreign intelli- The PRESIDING OFFICER (Mr. to build upon with as many nations of
gence activities of the United States. WARNER). The Senator from Pennsyl- the world as possible.
on December
It was
This is an important point, for some vania (Mr. SPECTER):
2 years ago, that ficepformthe Government to claim th t SenaMr. te JoinSPE R~lutilon 142~to au- launched,a full-scathe le Soviet ofniA
such a disclosure would impair or thorize and request the President to ghanistan. Within 72 hours, Soviet
impede its foreign intelligence activi- issue a proclamation designating troops had successfully executed a vio-
ties. But the word reasonably makes March 21, 1982, as Afghanistan Day, lent coup in Kabul, overthrowing the
clear that there is room for a discloser to protest the occupation of their independently oriented Amin and his viet Amin
was argue that the Government's claim bi artis byisan effort by he,U.S. Conngress Goovernment with the puppet regime
wAA unjustified.
Government warning to a news re- with the international cooperation of of Babrak Karmal. Rarely in recent
porter that a particular intended dis- the North Atlantic Assembly. history has the world witnessed such
closure would impair or impede our My personal participation in this harsh and inhumane aggression
foreign intelligence activities might matter began when I attended the against any nation or its people.
prevent the reporter from later argu- North Atlantic Assembly meeting in In other parts of the world, the situ-
ing that such a consequence never oc- Munich last October. I was requested, ations are more ambiguous, as already
curred to him. But he could still con- along with Congressman EiaaoTr LEW- noted, than that which exists in Af-
test the logic of that warning and use. TAS of Georgia, to take the lead in ghanistan. In Afghanistan. the brutal-
Day. ity o of Soviet the wor ion is unrivaled
that as a defense in any legal proceed- sponsoring oi ~ 198a 2 as resolution nisdeclaring
ing, could he not? That date was chosen because it is the What is most amazing about the
does The not day which Afghan people traditionally tragedy in Afghanistan. however, has
Mr. CHAPelie a standard Yes, he could.
mean that the Government can simply celebrate their New Year. been the powerful and heroic resist-
assert that the will that a disclosure osure will impair or I was pleased to join in this effort arcs of the Afghan freedom fighters. tactics- As impede foreign intelligence activities. tip IneAfghanisstan presents a he situa- unique s None of nd deSoviet stroy missions, the ermas-
As report No. 96-896
must, n says: opportunity for the freedom-loving na- sacres, the napalm, nor the explosive
A nis st. in other words, be In the
business, , or m or have made e it it his practice, to bons of the world to unite in con- onfinthe~Aighhr dom 1 fighters
ferret out and then expose undercover offi- demning Soviet aggression
cers or agents where the reasonably foresee- At the present time, Soviet insur- Through the installation of over
able result would be to damage an intelli- gence and Soviet adventurism is taking 80,000 troops, the creation of a puppet
Bence agency's effectiveness place in many nations of the world, government and active use of terrorist
1 tactics the Soviet Union has main-
l 1
dent, I thank the distinguished Sena- of Soviet influesice is subjewet
tor from Rhode Island for his patience stantial dispute. The underlying factu- and yet the courageous Afghan free-
and cooperation. I believe that our col- al issue-stated simply, "Who is right dom fighters continue to struggle
loquy has demonstrated my basic and who is wrong?" is not raised in Af- against all odds. brutali
has.
a point, that this bill will be limited in ghanistan, which represents a unique- toII vi the Afghan people Staavgrion on . its focus, as much in the amended ver- ly clear-cut situation.
sion as it is in the version reported out We are all aware of conditions in and massacre have taken many thou-
of committee. Poland where debate still rages as to sands of lives. And, by this point, over
In light of that essential fact, I see the extent of Soviet involvement. 2,500,000 Afghans have fled their
no bar to our adopting the language There are many other countries in the homeland to become refugees in Paki-
that the administration clearly pre- world where Soviet influence is sug- atan?
fers. They feel that the version passed gested to be particularly prevalent, We cannot know when this tragedy
by the Select Committee on Intelli- such as El Salvador, Cuba, Guatemala, will end. We' can only hope that with
gence in 1980 will do a better Job. Angola, Zimbabwe, Libya, Chad, the passage of time, the Afghan
I, in turn, believe that Senator Jordan, Syria, Iraq, North Korea, people will be successful in their his-
CHAFEE's careful drafting and his par- Laos, Cambodia, and Vietnam.. toric struggle to regain control of their
ticipation in this colloquy will go far But, unlike the Afghan situation, in homeland and live in peace. this to insure against the sort of abuses many of these countries, there Isrsub- Witho ehe~ passage
a clean rn uessag ,
CONCLUSION OF MORNING
BUSINESS
The PRESIDING OFFICER. Morn-
ing business is closed.
The PRESIDING OFFICER. Under
the previous order, the Senate will
now proceed to the consideration of
Senate Joint Resolution 142, which
the clerk will state by title.
The bill clerk read as follows:
A Joint resolution (S.J. Res. 142) to au-
thorize and request the President to issue a
proclamation designating
Afghanistan tan Day, a day commemorate
the struggle of the people of Afghanistan
against the occupation of their country by
Soviet forces.
The Senate proceeded to consider
the joint resolution.
Mr. DURENBERGER. Mr. Press- but in most situations the actua
QevTM tained~ a death grip on Afghanistan,
boviets are euuuiusavcs, w& 7-& - -
actions. And, while many of us feel that gharistan Day will be recog-
that they are wrong in many, if not nized by the Soviets as notice that
all, of those situations, no one can such aggression will not be tolerated
deny the gross impropiety of the and can only damage the interests of
Soviet action in Afghanistan. the Soviets themselves.
ecial
Soviet aggression in Afghanistan led By joining together to pay a sp
the United Nations General Assembly tribute to the tenacious Afghan free-
to pass a resolution on October 18, dom fighters, who continue'to fight re-
1981, by the overwhelming vote of 116 lentlessly and courageously for peace,
to 23, with 12 abstentions, calling for we convey our support for all people
"the immediate withdrawal of the for- around the world who fight against
eign troops from Afghanistan." And, the bonds of tyranny and oppression.
on December 16, 1981, the European Mr. GRASSLEY. Mr. President, as a
Parliament acted to commemorate cosponsor of Senate Joint Resolution
March 21, 1981, as Afghanistan Day, 142, I am pleased to see the Senate
with 237 of the 434 members signing take such prompt action to consider
the resolution. the measure, which would authorize
This exennplifies the kind of solid .the President to declare March 21,
support which, obviously, can be mus- 1982, as Afghanistan Day. This would
tered on an issue which is as clear cut interface with the European Commu-
and as plain as the Soviet invasion of nity's designation of March 21 as Af-
Afghanistan. This is the kind of sup- ghanistan Day and, with the coopera-
port that we should utilize, therefore, tion of Third World countries, would
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