INTELLIGENCE IDENTITIES PROTECTION ACT HEARINGS BEFORE THE SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES ON H.R. 5615

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200080004-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 116
• Document Creation Date: December 21, 2016
• Document Release Date: October 31, 2008
• Sequence Number: 4
• Publication Date: August 19, 1980
• Content Type: OPEN SOURCE

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INTELLIGENCE IDENTITIES PROTECTION ACT
HEARINGS
SUBCOMMITTEE ON
CIVIL AND CONSTITUTIONAL RIGHTS
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
NINETY-SIXTH CONGRESS
SECOND SESSION
ON
H.R. 5615
Serial No. 92
U.S. GOVERNMENT PRINTING OFFICE
74-8820 WASHINGTON : 1981
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COMMITTEE ON THE JUDICIARY
PETER W. RODINO, JR., New Jersey, Chairman
JACK BROOKS, Texas
ROBERT W. KASTENMEIER, Wisconsin
DON EDWARDS, California
JOHN CONYERS, JR., Michigan
JOHN F. SEIBERLING, Ohio
GEORGE E. DANIELSON, California
ROBERT F. DRINAN, Massachusetts
ELIZABETH HOLTZMAN, New York
ROMANO L. MAZZOLI, Kentucky
WILLIAM J. HUGHES, New Jersey
SAM B. HALL, JR., Texas
LAMAR GUDGER, North Carolina
HAROLD L. VOLKMER, Missouri
HERBERT E. HARRIS II, Virginia
MIKE SYNAR, Oklahoma
MICHAEL D. BARNES, Maryland
DAN GLICKMAN, Kansas
BOB CARR, Michigan
BILLY LEE EVANS, Georgia
ROBERT McCLORY, Illinois
TOM RAILSBACK, Illinois
HAMILTON FISH, JR., New York
M. CALDWELL BUTLER, Virginia
CARLOS J. MOORHEAD, California
JOHN M. ASHBROOK, Ohio
HENRY J. HYDE, Illinois
THOMAS N. KINDNESS, Ohio
HAROLD S. SAWYER, Michigan
DAN LUNGREN, California
F. JAMES SENSENBRENNER, JR.,
Wisconsin
JOSEPH L. NELLIS, General Counsel
GARNER J. CLINE, Staff Director
FRANKLIN G. POLK, Associate Counsel
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS
DON EDWARDS, California, Chairman
ROBERT W. KASTENMEIER, Wisconsin HENRY J. HYDE, Illinois
JOHN F. SEIBERLING, Ohio JOHN M. ASHBROOK, Ohio
ROBERT F. DRINAN, Massachusetts F. JAMES SENSENBRENNER, JR.,
ELIZABETH HOLTZMAN, New York Wisconsin
HAROLD L. VOLKMER, Missouri
CATHERINE A. LEROY, Counsel
JANICE E. COOPER, Assistant Counsel
DEBORAH OWEN, Associate Counsel
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CONTENTS
Page
August 19, 1980 ................................................................................................................ 1
August 20, 1980 ................................................................................................................ 73
Text of H.R. 5615 .............................................................................................................. 2
WrrNxssas
Abrams, Floyd, partner in the firm of Cahill, Gordon, Reindel ............................. 60
Prepared statement ................................................................................................. 58
Aspin, Hon. Les, a Representative in Congress from the State of Wisconsin...... 82
Prepared statement ............................................ .. .................................... 82
Hitz, Frederick P., legislative counsel, Central Intelligence Agency ..................... 17
Prepared statement ............................................................... ....... 22
Keuch, Robert L., Associate Deputy Attorney General, Department of Justice. 17
Prepared statement ................................................................................................. 18
Lewis, Robert, chairman, Freedom of Information Committee, representing
the Society of Professional Journalists and Sigma Delta Chi ............................. 109
Prepared statement ........................................................... .............................. 109
McClory, Hon. Robert, a Representative in Congress from the State of Illinois. 78
Prepared statement .............................................................. .......... ............ 79
Rowan, Ford, associate professor, Northwestern University and attorney, San-
ford, Adams, McCullough & Beard ........................................................................... 96
Prepared statement ................................................................................................. 96
Wright, Hon. Jim, a Representative in Congress from the State of Texas........... 73
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INTELLIGENCE IDENTITIES PROTECTION ACT
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS,
COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met at 2:10 p.m., pursuant to call, in room
2237, Rayburn House Office Building, Hon. Don Edwards (chair-
man of the subcommittee) presiding.
Present: Representatives Edwards, Seiberling, Drinan, Hyde, and
Sensenbrenner.
Also present: Catherine A. LeRoy, counsel; Janice E. Cooper,
assistant counsel; and Deborah Owen, associate counsel.
Mr. EDWARDS. The subcommittee will come to order.
This afternoon, the subcommittee begins hearings on H.R. 5615,
the Intelligence Identities Protection Act. The bill creates criminal
penalties for identifying certain covert agents, informants, and
sources operating on behalf of U.S. intelligence agencies.
The bill was reported favorably by the House Intelligence Com-
mittee on July 25. It has been sequentially referred to the Judici-
ary Committee at Chairman Rodino's request because it contains
several provisions which fall within the jurisdiction of the commit-
tee.
In referring the bill to this subcommittee, the chairman has
asked that we focus our close attention on those provisions of
concern to him and to the committee in the short time we have
available.
H.R. 5615 has a criminal justice dimension and a constitutional
dimension equal in importance to its national security dimension.
That is why the bill was referred to the Judiciary Committee and
that will be the focus of our hearings.
[A copy of H.R. 5615 follows:]
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96TH CONGRESS
2D SESSION
.R.5615
[Report No. 96-1219, Part I]
To amend the National Security Act of 1947 to prohibit the unauthorized
disclosure of information identifying certain United States intelligence offi-
cers, agents, informants, and sources.
IN THE HOUSE OF REPRESENTATIVES
OCTOBER 17, 1979
Mr. BOLAND (for himself, Mr. ZABLOCKI, Mr. BuRLISON, Mr. MURPHY of
Illinois, Mr. ASPIN, Mr. ROSE, Mr. MAZZOLI, Mr. MINETA, Mr. FOWLER,
Mr. ROBINSON, Mr. ASHBROOK, Mr. MCCLORY, Mr. WHITEHURST, and Mr.
YOUNG of Florida) introduced the following bill; which was referred to the
Permanent Select Committee on Intelligence
AUGUST 1, 1980
Reported with an amendment, referred to the Committee on the Judiciary for a
period ending not later than August 26, 1980, for consideration of such
provisions of the bill and amendment as fall within its jurisdiction under
clause 1(m), rule X and ordered to be printed
[Strike out all after the enacting clause and insert the part printed in italic]
A BILL
To amend the National Security Act of 1947 to prohibit the
unauthorized disclosure of information identifying certain
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United States intelligence officers, agents, informants, and
sources.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
That this Aet may be eited as the "Intelfigenee identities
Protection Act"
SEe: (a) The National Security Aet of 164-7 is
amended by adding at the end thereof the following new fide-
IITTTTX IT PROTECTION OF GERTAJN #~
EGUMT-Y DWOMAWON
Id PBOT1169MON Of fBDN9PffE88 6'F 6 OBTAIN
e
99PA4'BO TRED13BOOIFEB RMPHhEAEMPME OFFIOBBO,
*EIHNIFS, IFFOUMANTO, AND 96TJBOE6
". lam. (a3 Whoever, having as having had author
ised access to elessi?ied information that
?(4.) identifies as an effeer or employee of an in-
telligeaee agency, as as a member of the -ed
Forces assigned to ditty with r a intelligence agency,
any individual (A) who in fast is sash an o fieer, em-
ployee, er member, (B) whose identity as sash an effi-
eer; employee, as member is elassi?ied informatiea, and
(b) who is serving outside the United States of has
within the last five years served outside the United
States; or
=(4) identifies as being or having been as agent
o?; or informant as wares of operational assistanee te;
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1 an intelligence agency any fin al (4 who in feet is
2 OF hoe been stteh an agent, in?ermant, or source, and
3 (9) whose identity ae soeh an agent, informant, or
4 source is classified in?ermation,
5 ifitefitiona4 discloses to any individual net authorised to re-
6 eeive classified information any information that identifies art
7 individiW described in pafagraph (44 or (2) as seek an o fieer,
8 employee, or member or as seeh an agent, inf-emeat, or
9 sett knowing or having reason to knew that the in?orma
10 ties disclosed so identifies sash individueA and that the United
11 States is taking affirniative measures to conceal stseh individ
12 ealo intelligence relationship to the United Mates, shall he
13 fined net mere than $6000 of imprisoned stet more than ten
14 years, of both.
15 1104 Whoever with the intent to impair or if&pede the
16 foreign intelligence activities of the United States discloses to
17 any dal net authorised to receive classified information
18 any information that
19 444 identifies as an officer or employee of an in-
20 ` lligenec agency, or as a member of the Armed
21 Forces assigned to duty with an intelligenee agency,
22 any individual (A) who in feet in sash an officer, em-
23 pleyee or member, (B4 whose identity as stteh an offi-
24 eery employee, or member is classified in?ermatien, and
25 (P) who is serving outside the United States or has
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4
1 within the five years served outside the United
2 States; of
3 14.'4 identifies as being of having been an agent
4 of er infeman of seuree of operational assistance te;
5 an intelligence agency any individual (A4 who in bet is
6 or he been sneh an agent, infemant, of source, and
7 (9) whose identity as such an agent, infemant, of
8 seuree is classified information,
9 knowing er having reason to know that the information dis-
10 elesed no identifies soak 4idividoai and that the United States
11 in taking ftffimfttive measures to conceal soak ml's
12 intelligence relationship to the United States, shall be fined
13 net faere than $5000 er imprisoned net mere than one year;
14 er bath.
1594 en8 H*eHPqIIeNs
16 " . ?W. (a) It is a defense to a preseeutien under
17 section 504 that before the eemnission of the offense with
18 which the defendant is charged, the United States had pub-
19 lief aeknowledged er revealed the intelligence relationship
20 to the United States of the individual the diselesure of whose
21 intelligence relationship to the United States in the basis fee
22 the praseetitien.
23 146)(44 Subject to paragraph (~} no person other than a
24 person ee itting an offense under seetien 6" shall be sub-
25 feet to preseeution under seek section by virtue of seetien -9
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1 or 4 of We 4$ United States Code, or shall he mibjeet to
2 pr-eseeiation for eenspiraey to eemmit an offense tinder stteh
3 seetien.
4 424 Paragraph () shall net &pply in the ease of a
5 person who aeted with the intent to impair or impede the
6 foreign intelligence aetivities of the United States.
7 140 Ut any Pfesoetitieft tinder seetien h01(b), proof of
8 intentional diselesurre of in?ormatien deserihed in stteh see-
9 tiers-,, or in?erenees derived ?rent proof of soeh diselesttre, shall
10 net alone eenstitute P F04 of intent to impair or impede the
11 foreign intelligence activities of the United States.
12 d) 4t shall net he an offense under seetieft 60-1- to
13 transmit information deseribed in stteh seetien directly to the
14 Select Committee on Intelligence of the Senate or to the Per-
15 maned Select Ceffhfflittee OR ifitelligeftee of the Reuse of
16 Repres'cxrcative .
17 ~e
18 "SHe. There is jurisdietien ever an offense tinder
19 seetien 601 committed outside the United States if the indi-
20 vidual committing the eflense is a citizen of the United States
21 or an alien lawitAly admitted to the United States for perma
22 neat residenee (as defined in seetion 101(a)(20) of the Immi
23 gration and Nationality A,et)
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1 4d PBOVIDINe INFO ION TO OONEIBESS
2 "Sne. 594: Nothing in this title shall be cenetrue4 ae
3 authority to withheld information ?ree3 Congress OF ?roen a
4 cematitteee of either Reuse of Cengreeo.
6 "Sm. bey F-er the purpeses of this title-
7 ?!(44 The term 'Alessified infer on' means infer-
8 matien or material designated and clearly marked of
9 clearly represented, pursuant to the provisions of a
10 statute Of Executive order (er a regulation Of order
11 issued pursuant to a statute Of Exoaeutive order} as re-
12 guiring a opeeifie degree of protection against enau
13 therised diseleaure ?er reasons of national seeurity.
14 The terms `authorized when used with re-
15 speet to aeeees to classified information, means having
16 authority, right; or permission pursuant to the previ-
17 scene of a statute, Executive order, directive of the
18 head of ark department or agency engaged in foreign
19 intelligence or ee activities; Order of a
20 United States district court, or provisions of any Rule
21 of the Reuec of Repreeentatives of resolution of the
22 Senate which assigns responsibrhty within the respee
23 tine Renee of Congress ?er the oversight of intelligence
24 aetivitieo.
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1 49) The term 'diselose' means to comet nieate,
2 pre e, impart, trams, transfer, eenvey, publish, of
3 otherwise tt3ahe available.
4 ) The term 'intelligenee ageney' means the
5 Central latelligemee Agency Of arty intelligence eempe
6 nett of the Depart of De?ense.
7 ' {54 The tertrt 'informant' means arty dal
8 who furnishes of hoe ?urnished information to ao itttel-
9 ligenee agency in the coarse of a dial relation-
10 slog protecting the identity of each individual treat
11 public disclosure.
12 The terms attd 'scarce of
13 operational assistmee' de net include individuals who
14 are eiti$ens of the United States resitting within the
15 Unite states.
16 14-7) The tests atd 'employee' have the
17 ttteanings given shah terms by sections 24-04 and 2106,,
18 respectively, of title o United States Code.
19 48) The term 'Afmod Forties' means the
20 Navy, Air Feree, Marine Corps, and Coast Guard.
21 149) The terns 'Unite States', when trse4 its a ge-
22 egraphie sense, means all areas tinder the territorial
23 s vereignty of the United States and the Tenet Terri
24 tefy of the Pacific islands.".
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1 Pa) The table of eentents at the beginning of saeh Aet is
2 amended by adding at the end thereof the following.,
"TM L V PROTECTION 1 RT A W N
"SOS. 694 Preteetien of ideatiaiee of eer6&i, Uaked &Mee Undereever inteiiigenoe
effieere; 9gea6B, infermente, d eetveee:
Wee: No.- Defenses and exeeptieaae.
Agee- g9& ntemtorie} jwisdiegen
-See: 694 Providing informs ion to Gengreee:
!ee: f Deiaieieae=
3 That this Act may be cited as the "Intelligence Identities
4 Protection Act"5 SEC. 2. (a) The National Security Act of 1947 is
6 amended by adding at the end thereof the following new title:
7 "TITLE V-PROTECTION OF CERTAIN
8 NATIONAL SECURITY INFORMATION
9 "DISCLOSURE OF IDENTITIES OF CERTAIN UNITED
10 STATES UNDERCOVER INTELLIGENCE OFFICERS,
11 AGENTS, INFORMANTS, AND SOURCES
12 "SEC. 501. (a) Whoever, having or having had author-
13 ized access to classified information that identifies a covert
14 agent, intentionally discloses any information identifying
15 such covert agent to any individual not authorized to receive
16 classified information, knowing that the information dis-
17 closed so identifies such covert agent and that the United
18 States is taking affirmative measures to conceal such covert
19 agent's intelligence relationship to the United States, shall be
20 fined not more than $50,000 or imprisoned not more than ten
21 years, or both.
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1 "(b) Whoever, as a result of having authorized access to
2 classified information, learns the identity of a covert agent
3 and intentionally discloses any information identifying such
4 covert agent to any individual not authorized to receive clas-
5 sified information, knowing that the information disclosed so
6 identifies such covert agent and that the United States is
7 taking affirmative measures to conceal such covert agent's
8 intelligence relationship to the United States, shall be fined
9 not more than $25,000 or imprisoned not more than five
10 years, or both.
11 "(c) Whoever, in the course of an effort to identify and
12 expose covert agents with the intent to impair or impede the
13 foreign intelligence activities of the United States, discloses,
14 with the intent to impair or impede the foreign intelligence
15 activities of the United States, to any individual not author-
16 ized to receive classified information, any information that
17 identifies a covert agent knowing that the information dis-
18 closed so identifies such covert agent and that the United
19 States is taking affirmative measures to conceal such covert
20 agent's intelligence relationship to the United States, shall be
21 fined not more than $15,000 or imprisoned not more than
22 three years, or both.
23 "DEFENSES AND EXCEPTIONS
24 "SEC. 502. (a) It is a defense to a prosecution under
25 section 501 that before the commission of the offense with
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1 which the defendant is charged, the United States had pub-
2 licly acknowledged or revealed the intelligence relationship to
3 the United States of the individual the disclosure of whose
4 intelligence relationship to the United States is the basis for
5 the prosecution.
6 "(b)(1) Subject to paragraph (2), no person other than a
7 person committing an offense under section 501 shall be sub-
8 ject to prosecution under such section by virtue of section 2 or
9 4 of title 18, United States Code, or shall be subject to pros-
10 ecution for conspiracy to commit an offense under such
11 section.
12 "(2) Paragraph (1) shall not apply in the case of a
13 person who acted in the course of an effort to identify and
14 expose covert agents with the intent to impair or impede the
15 foreign intelligence activities of the United States.
16 "(c) In any prosecution under section 501(c), proof of
17 intentional disclosure of information described in such sec-
18 tion, or inferences derived from proof of such disclosure, shall
19 not alone constitute proof of intent to impair or impede the
20 foreign intelligence activities of the United States.
21 "(d) It shall not be an offense under section 501 to
22 transmit information described in such section directly to the
23 Select Committee on Intelligence of the Senate or to the Per-
24 manent Select Committee on Intelligence of the House of
25 Representatives.
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1 "PROCEDURES FOR ESTABLISHING COVER FOR
2 INTELLIGENCE OFFICERS AND AGENTS
3 "SEC. 503. (a) The President shall establish procedures
4 to ensure that any individual who is an officer or employee of
5 an intelligence agency, or a member of the Armed Forces
6 assigned to duty with an intelligence agency, whose identity
7 as such an officer, employee, or member is classified in forma-
8 tion and which the United States takes affirmative measures
9 to conceal, is afforded all appropriate assistance to ensure
10 that the identify of such individual as such an officer, em-
11 ployee, or member is effectively concealed. Such procedures
12 shall provide that any department or agency designated by
13 the President for the purposes of this section shall provide
14 such assistance as may be determined by the President to be
15 necessary in order to establish and effectively maintain the
16 secrecy of the identity of such individual as such an officer,
17 employee, or member.
18 "(b) Procedures established by the President pursuant
19 to subsection (a) shall be exempt from any requirement for
20 publication or disclosure.
21 "EXTRATERRITORIAL JURISDICTION
22 "SEC. 504. There is jurisdiction over an offense under
23 section 501 committed outside the United States if the indi-
24 vidual committing the offense is a citizen of the United
25 States or an alien lawfully admitted to the United States for
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permanent residence (as defined in section 101(a)(20) of the
Immigration and Nationality Act).
"PROVIDING INFORMATION TO CONGRESS
"SEC. 505. Nothing in this title shall be construed as
authority to withhold information from Congress or from a
committee of either House of Congress.
"DEFINITIONS
"SEC. 506. For the purposes of this title:
"(1) The term `classified information' means
formation or material designated and clearly marked
or clearly represented, pursuant to the provisions of a
statute or Executive order (or a regulation or order
issued pursuant to a statute or Executive order), as re-
quiring a specific degree of protection against unau-
thorized disclosure for reasons of national security.
"(2) The term `authorized', when used with re-
spect to access to classified information, means having
authority, right, or permission pursuant to the provi-
sions of a statute, Executive order, directive of the
head of any department or agency engaged in foreign
intelligence or counterintelligence activities, order of a
United States court, or provisions of any Rule of the
House of Representatives or resolution of the Senate
which assigns responsibility within the respective
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1 House of Congress for the oversight of intelligence
2 activities.
3 "(3) The term `disclose' means to communicate,
4 provide, impart, transmit, transfer, convey, publish, or
5 otherwise make available.
6 "(4) The term 'covert agent' means-
7 "(A) an officer or employee of an intelligence
8 agency, or a member of the Armed Forces as-
9 signed to duty with an intelligence agency-
10 "(i) whose identity as such an officer,
11 employee, or member is classified in forma-
12 tion, and
13 "(ii) who is serving outside the United
14 States or has within the last five years
15 served outside the United States;
16 "(B) a United States citizen whose intelli-
17 gence relationship to the United States is classi-
18 fied information and-
19 (i) who resides and acts outside the
20 United States as an agent of, or informant
21 or source of operational assistance to, an in-
22 telligence agency, or
23 "(ii) who is at the time of the disclosure
24 acting as an agent of, or informant to, the
25 foreign counterintelligence or foreign counter-
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14
1 terrorism components of the Federal Bureau
2 of Investigation; or
3 "(C) an individual, other than a United
4 States citizen, whose past or present intelligence
5 relationship to the United States is classified and
6 who is a present or former agent of, or a present
7 or former informant or source of operational as-
8 sistance to, an intelligence agency.
9 "(5) The term `intelligence agency' means the
10 Central Intelligence Agency, the foreign intelligence
11 components of the Department of Defense, or the for-
12 eign counterintelligence or foreign counterterrorist com-
13 ponents of the Federal Bureau of Investigation.
14 "(6) The term `informant' means any individual
15 who furnishes information to an intelligence agency in
16 the course of a confidential relationship protecting the
17 identity of such individual from public disclosure.
18 "(7) The terms `officer' and `employee' have the
19 meanings given such terms by sections 2104 and 2105,
20 respectively, of title 5, United States Code.
21 "(8) The term `Armed Forces' means the Army,
22 Navy, Air Force, Marine Corps, and Coast Guard.
23 "(9) The term `United States, when used in a
24 geographic sense, means all areas under the territorial
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1 sovereignty of the United States and the Trust Terri-
2 tort' of the Pacific Islands. ".
3 (b) The table of contents at the beginning of such Act is
4 amended by adding at the end thereof the following:
"TITLE V-PROTECTION OF CERTAIN NATIONAL SECURITY
INFORMATION
"Sec. 501. Disclosure of identities of certain United States undercover intelligence
officers, agents, informants, and sources.
"Sec. 502. Defenses and exceptions.
"Sec. 503. Procedures for establishing cover for intelligence officers and employees.
"Sec. 504. Extraterritorial jurisdiction.
"Sec. 505. Providing information to Congress.
"Sec. 506. Definitions.":
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Mr. EDWARDS. Our first witness is Mr. Robert Keuch, Associate
Deputy Attorney General for the Department of Justice. He has
been the primary departmental and administration spokesman
throughout the evolution of an agents' identities bill. Once legisla-
tion is enacted, it will be the Department's task to prosecute cases
under it, and to defend it from possible constitutional attacks.
Thus, as the Department's representative, Mr. Keuch is well quali-
fied to help us analyze the legislation before us.
Mr. Keuch, we welcome you and you may proceed.
TESTIMONY OF ROBERT L. KEUCH, ASSOCIATE DEPUTY AT-
TORNEY GENERAL, DEPARTMENT OF JUSTICE, ACCOMPA-
NIED BY FREDERICK P. HITZ, LEGISLATIVE COUNSEL, CEN-
TRAL INTELLIGENCE AGENCY
Mr. EDWARDS. Accompanying Mr. Keuch is Mr. Fred Hitz; is that
correct?
Mr. HITZ. Yes, sir.
Mr. EDWARDS. And your official title is what, Mr. Hitz?
Mr. HITZ. Legislative Counsel, Central Intelligence Agency.
Mr. EDWARDS. Right.
Mr. Keuch, we are delighted to have you.
Mr. Hyde?
Mr. HYDE. Thank you, Mr. Chairman.
H.R. 5615 is part of an important effort to combat a serious
threat to our intelligence-gathering efforts. That threat is the cal-
lous and unconscionable revelation of the identities of our covert
intelligence agents.
This unfortunate situation has existed for many years, at least as
far back as 1975 when the CIA Station Chief in Athens was assassi-
nated following public disclosure of his covert status.
This problem promises to continue unless prompt and firm
action is taken by Congress. Since the Administration and the
majority leader in the House have expressed strong support for
such legislation, we are all seemingly in agreement on the goal to
be achieved. The only question that remains involves mechanics.
We are also in agreement with respect to the proposition that
first amendment aspects of this legislation must be carefully con-
sidered and accommodated. We are faced with the difficult task of
balancing freedom of speech and our national security concerns. Of
course, if our national security is not preserved, our first amend-
ment rights may disappear as well.
It is important for us to identify the precise first amendment
rights that are involved here. Where individuals intentionally dis-
close the identities of undercover agents with reason to believe that
such disclosure will impair our intelligence activities, they should
not be permitted to hide their ulterior motives behind the claim of
first amendment liberties rights. Such individuals hamper the ef-
forts of conscientious journalists.
The House Intelligence Committee held hearings on this impor-
tant issue and, based on the testimony they heard, reported a bill
which attempts to balance our intelligence needs and first amend-
ment rights, particularly with respect to individuals who have not
had access to classified information. The Senate Intelligence Com-
mittee has made a similar effort.
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I look forward to hearing the comments of our witnesses on these
efforts, and hope that legislation can be enacted promptly so that
these evils can be quickly remedied.
Mr. EDWARDS. The gentleman from Massachusetts.
Mr. DRINAN. I thank the witnesses and look forward to their
presentation on a very important and complex subject. Thank you
very much.
Mr. EDWARDS. Mr. Keuch.
[The prepared statement of Mr. Keuch follows:]
STATEMENT OF ROBERT L. KEUCH, ASSOCIATE DEPUTY ATTORNEY GENERAL
Mr. Chairman and Members of the Subcommittee, 1 am pleased to appear today
to comment on the bill recently reported by the House Intelligence Committee and
referred to this Subcommittee in an area of critical importance-protecting the
confidential identities of intelligence agents and sources who serve this country
overseas. My remarks will be brief, because I have testified extensively about this
legislation during its development.
Seven months ago, when I testified before the House Intelligence Committee on
its earlier draft bill-that is, H.R. 5615 before it was amended-I expressed the
Department's concern about the potential breadth of the bill's coverage. We were
concerned, first, that the bill would have punished individuals who did not knowing-
ly identify covert agents and sources, but who only revealed indirect information
that they had "reason to know" would have an identifying effect. The Committee
has tightened the bill in that respect, now requiring that any identification be
knowing, and we agree with the wisdom of the change.
A second concern of the Department had been the breadth of coverage provided
for disclosures based on public record information. As originally put., the bill not
only criminalized use of classified information to identify agents, and disclosures by
former government employees, but it also criminalized any use by any individual of
information from the public record to reveal even a single covert identity, so long as
the government could demonstrate the requisite intent on the part of the person to
"impair or impede the foreign intelligence activities" of the United States. We were
concerned that legitimate news reporting on foreign policy and foreign affairs, and
even dinner-table political debate by citizens, might be chilled by the breadth of
that provision. The Committee has gone far to meet this concern by providing that a
single act of disclosure would be covered only if it is a part of an ongoing effort to
destroy intelligence covers-or to use the amended bill's exact language, only if it
occurs "in the course of an effort to identify and expose covert agents". The
Committee Report makes clear that the disclosure of the name of an agent or a
source, if integral to a serious discussion of the nature of American involvement in
a certain country or area or a question of intelligence policy, would not be the
target of the bill s prohibition. While, as I will note later, we believe this concept is
better described in the Senate bill, the embodiment of the concept in the draft bill is
an improvement which could be supported.
However, the bill as drafted carries forward the requirement of the original draft
that an individual must have had "intent to impair or impede the foreign intelli-
gence activities of the United States," in contrast to the Senate bill which requires
that an individual need only have had "reason to believe" that his activities "would
impair or impede the foreign intelligence activities of the United States." As I have
previously testified, the former scienter requirement causes serious prosecutorial
and constitutional concerns. In my testimony before the House Intelligence Commit-
tee, I said, and I quote:
"The scienter requirement-that an individual must have acted with "intent to
impair or impede the foreign intelligence activities of the United States"-is not a
fully adequate way of narrowing the provision. First, even such a scienter standard
could have the effect of chilling legitimate critique and debate on CIA policy. A
mainstream journalist, who may occasionally write stories based on public informa-
tion mentioning which foreign individuals are thought to have intelligence relation-
ships with the U.S., might be fearful that any later stories critical of the CIA could
be used as evidence of an intent to "impede" foreign intelligence activities. Specula-
tion concerning intelligence activity and actors abroad would be seemingly more
hazardous if one had even taken even a general position critical of the conduct of
our covert foreign intelligence activity.
"And yet, even as it may chill legitimate journalists, that same intent require-
ment would pose a serious obstacle in any attempted use of ? 501(b) to prosecute
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individuals who for no reasonable purpose of public debate expose wholesale lists of
our intelligence operatives. The intent element mandates that in every case where a
defendant fails to admit an intent to impair or impede, a serious jury question on
the issue of intent will arise. A defendant could claim that his intent was to expose
to the American people questionable intelligence gathering operations which he
"believed" to be improper, rather than to disrupt intelligence operations, and the
government may find it a practical impossiblitiy to ultimately establish the requi-
site intent beyond a reasonable doubt, thereby rendering the statute ineffective.
"Second, and perhaps more importantly, the intent element will facilitate "gray-
mail" efforts by a defendant to dissuade the government from proceeding with the
prosecution. Under ? 501(b) of the House bill, a defendant will be able to argue for
disclosure, either pretrial or at trial, of sensitive classified information relating to
the alleged activities of covert agents, on the ground that the information is rele-
vant to the issue of whether he intended the revelations of identity to "impede"
American intelligence activities or rather intended the revelations to lead to sup-
posed reform or improvement of future intelligence activities." -;
The addition of the "effort to expose" concept to the original House Intelligence
Committee bill is an attempt to meet these concerns. While the constitutional
questions have been narrowed, our concern remains and there are clear prosecuto-
rial advantages in the Senate version of the bill. Moreover, as is inherent in the
previous testimony which I quoted, the House Intelligence Committee's specific
intent requirement tends to invite a "good faith" defense-the claim by a defendant
that while his disclosure may have hampered the success of a particular intelligence
operation or project, his overall purpose was to alert the Congress and the American
public to a necessary reform of intelligence policy, or to point out an intelligence
operation that was unwise or illegal, and that he had no desire or intention to
injure our overall intelligence capability. The Senate "reason to know" standard
would, we believe, more easily exclude such a good faith defense.
Finally, as noted we would suggest that the narrowing phrase used by the Senate
bill in its public record provision better describes the sort of concerted, extended,
almost recidivist activity which we seek to criminalize, than does the phrase of the
House bill. The Senate bill covers a disclosure based on public record material only
when it is part of a "pattern of activities" intended to expose agents. The House bill
instead covers any disclosure made in the course of an "effort" to expose. Although,
the House Report makes reasonably clear that the two phrases have the same aim;
for instance, the House Report speaks of "systematized identification and disclo-
sure," and a "conscious plan to seek out" identities, and a "practice to ferret out
and then expose". But we believe that the Senate statutory language, the phrase
"pattern of activities", somewhat better captures the necessary concerted nature of
the activity than does the House phrase.
Mr. Chairman, legislation in this area is critical to the moral and continuity of
our intelligence service, to the confidence that foreign sources have in us, and to our
ability to protect national security in a hostile world. The Department strongly
recommends that the Judiciary Committee report out an agent identities bill with a
favorable recommendation, so that we can look forward to passage in this Congress.
Thank you very much.
Mr. KEVCH. Mr. Chairman and members of the subcommittee, I
am pleased to appear today to comment on the bill recently report-
ed by the House Intelligence Committee and referred to this sub-
committee in an area of critical importance-protecting the confi-
dential identities of intelligence agents and sources who serve this
country overseas.
My remarks will be brief, because I have testified extensively
about this legislation during its development.
Seven months ago, when I testified before the House Intelligence
Committee on its earlier draft bill-that is, H.R. 5615 before it was
amended-I expressed the Department's concern about the poten-
tial breadth of the bill's coverage.
We were concerned, first, that the bill would have punished
individuals who did not knowingly identify covert agents and
sources, but who only revealed indirect information that they had
"reason to know" would have an identifying effect.
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The committee has tightened the bill in that respect, now requir-
ing that any identification be knowing, and we agree with the
wisdom of the change.
A second concern of the Department had been the breadth of
coverage provided for disclosures based on public record informa-
tion.
As originally put, the bill not only criminalized use of classified
information to identify agents, and disclosures by former Govern-
ment employees, but it also criminalized any use by any individual
of information from the public record to reveal even a single covert
identity, so long as the Government could demonstrate the requi-
site intent on the part of the person to "impair or impede the
foreign intelligence activities" of the United States.
We were concerned that legitimate news reporting on foreign
policy and foreign affairs, and even dinner table political debate by
citizens, might be chilled by the breadth of that provision.
The committee has gone far to meet this concern by providing
that a single act of disclosure would be covered only if it is part of
an ongoing effort to destroy intelligence covers-or to use the
amended bill's exact language, only if it occurs "in the course of an
effort to identify and expose covert agents."
The committee report makes clear that the disclosure of the
name of an agent or a source, if integral to a serious discussion of
the nature of American involvement in a certain country or area
or a question of intelligence policy, would not be the target of the
bill's prohibition.
While, as I will note later, we believe this concept is perhaps
better described in the Senate bill, the embodiment of the concept
in the draft bill is an improvement which could be supported.
However, the bill as drafted carries forward the requirement of
the original draft that an individual must have had "intent to
impair or impede the foreign intelligence activities of the United
States."
This is in contrast to the Senate bill which requires that an
individual need only have had "reason to believe" that his activi-
ties "would impair or impede the foreign intelligence activities of
the United States."
As I have previously testified, the former scienter requirement
causes serious prosecutorial and constitutional concerns. In my
testimony before the House Intelligence Committee, I said, and I
quote:
The scienter requirement-that an individual must have acted with "intent to
impair or impede the foreign intelligence activities of the United States"-is not a
fully adequate way of narrowing the provision.
First, even such a scienter standard could have the effect of chilling legitimate
critique and debate on CIA policy. A mainstream journalist, who may occasionally
write stories based on public information mentioning which foreign individuals are
thought to have intelligence relationships with the U.S., might be fearful that any,
later stories critical of the CIA could be used as evidence of an intent to "impede'
foreign intelligence activities.
Speculation concerning intelligence activity and actors abroad would be seemingly
more hazardous if one had ever taken over a general position critical of the conduct
of our covert foreign intelligence activity.
And yet, even as it may chill legitimate journalists, that same intent requirement
would pose a serious obstacle in any attempted use of section 501(b) to prosecute
individuals who for no reasonable purpose of public debate expose wholesale lists of
our intelligence operatives.
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The intent element mandates that in every case where a defendant fails to admit
an intent to impair or impede, a serious jury question on the issue of intent will
arise. A defendant could claim that his intent was to expose to the American people
questionable intelligence gathering operations which he "believed" to be improper,
rather than to disrupt intelligence operations, and the government may find it a
practical impossibility to ultimately establish the requisite intent beyond a reason-
able doubt, thereby rendering the statute ineffective.
Second, and perhaps more importantly, the intent element will facilitate "gray-
mail" efforts by a defendant to dissuade the government from proceeding with the
prosecution.
Under section 501(b) of the House bill, a defendant will be able to argue for
disclosure, either pretrial or at trial, of sensitive classified information relating to
the alleged activities of covert agents, on the ground that the information is rele-
vant to the issue of whether he intended the revelations of identity to "impede"
American intelligence activities or rather intended the revelations to lead to sup-
posed reform or improvement of future intelligence activities.
The addition of the "effort to expose" concept to the original
House Intelligence Committee bill is an attempt to meet those
concerns. While the constitutional questions have been narrowed,
our concern remains and there are clear prosecutorial advantages
in the Senate version of the bill.
Moreover, as is inherent in the previous testimony which I
quoted, the House Intelligence Committee's specific intent require-
ment tends to invite a "good faith" defense-the claim by a defend-
ant that while his disclosure may have hampered the success of a
particular intelligence operation or project, his overall purpose was
to alert the Congress and the American public to a necessary
reform of intelligence policy, or to point out an intelligence oper-
ation that was unwise or illegal, and that he had no desire or
intention to injure our overall intelligence capability.
The Senate "reason to know" standard would, we believe, more
easily exclude such a good faith defense.
Finally, as noted, we would suggest that the narrowing phrase
used by the Senate bill in its public record provision better de-
scribes the sort of concerted, extended, almost recidivist activity
which we seek to criminalize, than does the phrase of the House
bill.
The Senate bill covers a disclosure based on public record materi-
al only when it is part of a "pattern of activities" intended to
expose agents.
The House bill instead covers any disclosure made in the course
of an "effort" to expose. The House report makes reasonably clear
that the two phrases have the same aim; for instance, the House
report speaks of "systematized identification and disclosure," and a
"conscious plan to seek out" identities, and a "practice to ferret out
and then expose."
But we believe that the Senate statutory language, the phrase
"pattern of activities," somewhat better captures the necessary
concerted nature of the activity than does the House phrase.
Mr. Chairman, legislation in this area is critical to the morale
and continuity of our intelligence service, to the confidence that
foreign sources have in us, and to our ability to protect national
security in a hostile world.
The Department strongly recommends that the Judiciary Com-
mittee report out an agent identities bill with a favorable recom-
mendation, so that we can look forward to passage in this Con-
gress.
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Thank you very much.
Mr. EDWARDS. Thank you, Mr. Keuch.
Mr. Hitz, I believe that you have a statement that, without
objection, will be made a part of the record, and you may proceed.
[The prepared statement of Mr. Hitz follows:]
STATEMENT OF FREDERICK P. HITZ, LEGISLATIVE COUNSEL
Mr. Chairman, I want to thank you and the other distinguished members of this
Subcommittee for the opportunity to discuss legislation which I consider to be
urgently needed and vital to the future success of our country's foreign intelligence
collection efforts.
I start this afternoon from the premise that our efforts to collect information
about the plans and intentions of our potential adversaries cannot be effective in a
climate that condones revelation of a central means by which those efforts are
conducted. The impunity with which misguided individuals can disclose the indenti-
ties for our undercover officers and employees and our foreign agents and sources
has had a harmfull effect on our intelligence program. Equally significant is the
increased risk and danger such disclosures pose to the men and women who are
serving the United States in difficult assignments abroad. It is outrageous that
dedicated people engaged or assisting in U.S. foreign intelligence activities can be
endangered by a few individuals whose avowed purpose is to destroy the effective-
ness of activities and programs duly authorized by the Congress.
Mr. Chairman, recent world events have dramatically demonstrated the impor-
tance of maintaining a strong and effective intelligence apparatus. The Intelligence
Community must have both the material and the human resources needed to
enhance its ability to monitor the military activities of our adversaries and to
provide insights into the political, economic, and social forces which will shape
world affairs in the 1980's. It is particularly important that every effort be made to
protect our intelligence officers and sources. It is imperative that the Congress
clearly and firmly declare that the unauthorized disclosure of the identities of our
intelligence officers and those allied in out efforts will no longer be tolerated. The
President has expressed his determination to "increase our efforts to guard against
damage to our crucial intelligence sources and our methods of collection, without
impairing civil and constitutional rights." We recognize that legislation in this area
must be carefully drawn; it must safeguard the nation's intelligence capabilities
without impairing the first amendment rights of Americans or interfering with
congressional oversight.
Mr. Chairman, at this point I would like to make clear for the record the damage
that is being caused by the unauthorized disclosure of intelligence identities. I
would then like to address briefly several fallacies and misconceptions that have
crept into public discussion and debate about the problem. Finally, I will deal with
the issue of how a legislative remedy can be structured so as to discourage these un-
authorized disclosures without impairing the rights of Americans or interfering
with Congressional oversight.
Obviously, security considerations preclude my confirming or denying specific
instances of purported identification of U.S. intelligence personnel. Suffice it to say
that a substantial number of these disclosures have been accurate. The destructive
effects of these disclosures have been varied and wide-ranging.
Our relations with foreign sources of intelligence have been impaired. Sources
have evinced increased concern for their own safety. Some active sources, and
individuals contemplating cooperation with the United States, have terminated or
reduced their contact with us. Sources have questioned how the United States
government can expect its friends to provide information in view of continuing
disclosures of information that may jeopardize their careers, liberty and very lives.
Many foreign intelligence services with which we have important liaison relation-
ships have undertaken reviews of their relations with us. Some immediately dis-
cernible results of continuing disclosures include reduction of contact and reduced
passage of information. In taking these actions, some foreign services have explicitly
cited disclosures of intelligence identities.
We are increasingly being asked to explain how we can guarantee the safety of
individuals who cooperate with us when we cannot protect our own officers from
exposure. You can imagine the chilling effect must have on a source to one day
discover that the individual with whom he has been in contact has been openly
identified as a CIA officer.
The professional effectiveness of officers so compromised is substantially and
sometimes irreparably damaged. They must reduce or break contact with sensitive
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covert sources. Continued contact must be coupled with increased defensive meas-
ures that are inevitably more costly and time-consuming. Some officers must be
removed from their assignments and returned from overseas at substantial cost.
Years of irreplaceable area experience and linguistic skill are lost. Reassignment
mobility of the compromised officer is impaired. As a result, the pool of experienced
CIA officers is being reduced. Such losses are deeply felt in view of the fact that, in
comparison with the intelligence services of our adversaries, we are not a large
organization. Replacement of officers thus compromised is difficult and, in some
cases, impossible. Once an officer's identity is disclosed, moreover, counterintelli-
gence analysis by adversary services allows the officer's previous assignments to be
scrutinized, producing an expanded pattern of compromise through association.
Such disclosures also sensitize hostile security services and foreign populations to
CIA presence, making our job far more difficult. Finally, such disclosures can place
intelligence personnel and their families in physical danger from terrorist or vio-
lence-prone organizations. I need only cite to you the recent disclosures in Jamaica
by Louis Wolf, one of the editors of the Covert Action Information Bulletin, and the
subsequent attempts made on the lives of U.S. Government employees there.
Mr. Chairman, it is essential to bear in mind that the collection of intelligence is
something of an art. The success of our officers overseas depends to a very large
extent on intangible psychological and human chemistry factors, on feelings of trust
and confidence that human beings engender in each other, and on atmosphere and
milieu. Unauthorized disclosure of identities information destroys that chemistry.
While we can document a number of specific cases, the Committee must understand
that there is no way to document the loss of potential sources who fail to contact us
because of lack of confidence in our ability to protect their identities.
Mr. Chairman, in a time when human sources of intelligence are of critical
importance, there can be no doubt that unauthorized disclosures of identities of our
officers, agents, and sources constitute a serious threat to our national security. The
threat may not be as direct and obvious as the disclosure of military contingency
plans or information on weapons systems. It is indirect and sometimes hard to
grasp. But the net key result is damaged intelligence capability and reduced nation-
al security.
Those who seek to destroy the intelligence capabilities of the United States, and
others, whose opposition to identities legislation is based upon genuine concern
about first amendment considerations, have propagated a number of fallacies and
misconceptions. Understandably, some of these have found their way into discus-
sions of identities legislation before the Congress and in the press.
One of these fallacies is that accurate identification of CIA personnel under cover
can be made merely by consulting publicly available documents, like the State
Department's Biographic Register, and that identities legislation would impinge on
discussion of information that is in the public domain. This is absolutely untrue.
There is no official unclassified listing anywhere that identifies undercover CIA
officers. The intelligence relationships which we are seeking to protect are classi-
fied, and a great deal of money and effort is expended to maintain their secrecy.
The names of individuals who are intelligence officers do appear in certain unclassi-
fied documents, but they are not identified as intelligence officers. This is consistent
with our need to establish and maintain cover to conceal the officer's intelligence
affiliation. The State Department Biographic Register, and unclassified document
until 1975, and similar documents cannot be used, without additional specialized
knowledge and substantial effort, to make accurate identifications of intelligence
personnel. It is only because of the disclosure of sensitive information based on
privileged access and made by faithless government employees with the purpose of
damaging U.S. intelligence efforts, that the public has become aware of indicators in
these documents that can sometimes be used to distinguish CIA officers. It is
noteworthy, however, that these indicators do not invariably lead to correct identifi-
cations. The substantial number of accurate identifications that are being made by
the Covert Action Information Bulletin long after the Biographic Register ceased to
be publicly available indicates that these disclosures are based on extensive addi-
tional investigation, presumably using many of the same techniques as any intelli-
gence service uses in its counterintelligence efforts. In this regard I would like to
quote to you from the Senate report:
.. [T]he Committee rejected the contention that the identities of imperfectly
covered intelligence personnel are . . . part of the public record. They are not.
Those seeking to learn them without the use of classified information must fre-
quently engage in physical surveillance, in search of personnel records, in inter-
views with neighbors and former colleagues. All of this amounts to a comprehensive
counterintelligence effort. It may be that one does not have to be or to have been an
intelligence officer in order to learn and reveal the identities of American undercov-
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24
er agents. But in that case one must often behave as a counterintelligence officer,
using systematic investigative techniques, against the United States. The Committee
[SSCI] has decided that certain identities should be protected both against betrayal
of classified information and against such self-appointed counterspies."
Another fallacy widely circulated by opponents of identities legislation is that
prohibition of the unauthorized disclosure of intelligence identities would stifle
discussion of important intelligence and foreign policy issues. This simply is not so.
Identities legislation is not designed to forestall criticism of intelligence activities,
prevent the exposure of wrongdoing, or "chill" public debate on intelligence and
foreign policy matters. Rather, such legislation would protect a narrow, essential
element of our nation's foreign intelligence programs for which the Congress appro-
priates taxpayer dollars year after year. In this regard, it is important to recall that
virtually all of the legitimate official and unofficial examinations of intelligence
activities which have taken place over the past several years have been accom-
plished without the revelation of intelligence identities of the kind we are seeking to
protect. Extensive public and congressional scrutiny and criticism of intelligence
activities has taken place without recourse to wholesale disclosure of the names of
intelligence personnel. Mr. Chairman, identities legislation is designed to discourage
activity that threatens the very lifeblood of our nation's intelligence apparatus. I
urge the Subcommittee to examine closely the claims of those who contend that
there are legitimate reasons for the unauthorized disclosure of intelligence identi-
ties and that such disclosures are in the public interest. These claims are without
merit and must be rejected when weighed against real and certain damage to the
national interest.
Another serious misconception which has arisen in connection with the debate
over identities legislation is the contention that such a statute would prevent
legitimate "whistle-blowing" by individuals whose intent is to expose alleged illegal-
ity or impropriety. A properly drafted statute will have no such effect. Provision can
be made to ensure that the transmittal of information to the House and Senate
Intelligence Committees is not covered by the statute's prohibitions, and we support
language such as that contained in subsection 502(d) of H.R. 5615. Identities legisla-
tion, therefore, need not impact at all on those whose legitimate purpose is to report
alleged wrongdoing.
Still another misconception is the contention that passage of identities legislation
would spell the end of efforts to enact comprehensive intelligence charter legisla-
tion. It has been suggested that the Intelligence Community would lose interest in a
comprehensive charter if an identities bill were to be enacted separately. Mr.
Chairman, the commitment of the Intelligence Community to comprehensive
charter legislation is well known and has been stated often. I state it again before
you today. We sincerely regret that it was not possible to proceed with a full charter
bill this year. The Intelligence Community's interest in charter legislation will not
evaporate upon passage of a separate identities bill. Identities legislation is urgently
needed and should proceed on its own merit. It must not be held hostage to
comprehensive charter legislation and be made to wait for the 97th Congress to
convene.
Mr. Chairman, I would like now to discuss how identities legislation can be
structured so as to effectively proscribe the most damaging unauthorized disclosures
without impairing the rights of Americans or interfering with Congressional over-
sight.
Congress should enact legislation which will fully remedy the problems we face.
Passage of a statute that is too limited in its coverage, that could be easily circum-
vented, or which would go unenforced because of unmeetable burdens of proof
would be counterproductive. Such a statute would give the impression of solving the
problem without actually doing so.
Legislation in this area should, first of all, hold current and former government
employees and others who have had authorized access to classified identities infor-
mation to a higher standard than persons who have not had such access. Such
individuals, because of their employment relationships or other positions of trust,
can legitimately be held accountable for the deliberate disclosure of any identity
they know, or have reason to know, is protected by the United States.
With regard to such individuals, the legislation should require proof that a
disclosure is made with culpable knowledge, or with knowledge of sufficient facts to
make the average person aware of the nature and gravity of his actions. This is an
important element because it must describe a state of mind which will support the
attachment of criminal sanctions, and at the same time be capable of proof in the
kinds of disclosure cases which have been damaging. If a person with authorized
access discloses information knowing that it identifies an intelligence officer under
cover, that person should be considered to have acted with culpable knowledge. The
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knowledge formulation must not be so difficult of proof as to render the statute
useless. We would oppose, therefore, any requirement such as the one contained in
Representative Aspin s Bill, H.R. 6820, for the government to prove that the specific
information disclosed was acquired during the course of the individual's official
duties.
Mr. Chairman, a statute in this area, if it is to be effective, must also cover those
who have not had an employment or other relationship of trust with the United
States involving authorized access to classified identities information.
Additional safeguards are in order with respect to the broader coverage which is
sought by the Administration. I will touch upon these in the context of discussing
the specifics of the two Bills recently reported by both House and Senate Intelli-
gence Oversight Committees, H.R. 5615 and S. 2216 respectively. These Bills were
reported late last month following the Jamaican incidents described earlier in my
testimony. They go a long way in attempting to fashion an effective legislative
remedy.
Both the House and Senate versions create three categories of the offense of
disclosures of intelligence identities:
A. Disclosures of a "covert agent" by persons who have or have not had author-
ized access to classified information that identifies such a covert agent. This catego-
ry covers primarily disclosure by intelligence agency employees and others who get
access to classified information that directly identifies or names agents and persons
under cover.
B. Disclosure of a "covert agent" by persons who have learned the identity as a
result of authorized access to classified information. This category covers disclosures
by any person who learns the identity of a covert agent as a result of government
service or other government relationship and access to classified information that
does not identify or name a specific agent or person under cover. For example, this
would cover the State Department employee who learns that the CIA occupies a
certain part of a given embassy building.
C. Disclosure of a "covert agent" by anyone who makes the disclosure in the
course of an effort to disclose covert agents with intent to impair or impeded
intelligence activities (House version) or as part of a pattern of activities intended to
identify and expose covert agents with reason to believe that such activities will
impair or impede foreign intelligence activities (Senate version). While the House
and Senate Intelligence Committees versions differ here, this category is intended to
encompass persons like Louis Wolf and to exclude "reputable" journalists. I will
discuss the difference in the House and Senate language more fully.
All three categories of the offense have, in both versions, several common ele-
ments:
a. First, the person disclosed must be a "covert agent." This is a defined term in
both versions and includes (1) officers and employees of intelligence agencies whose
identities are classified and who are serving or have, within the last five years,
served outside the United States; (2) agents and sources who are U.S. citizens and
who reside outside the U.S. or who are agents of or informants to the foreign
counterintelligence or foreign counterterrorism components of the FBI, and whose
identities are classified information; and, (3) foreign agents and sources of an intelli-
gence agency whose intelligence relationship to the United States is classified
information.
b. Second, the disclosure must be to a person not authorized to receive classified
information. This means that the government would have to prove that the identity
was revealed to some uncleared person. Thus, some employee disclosures, such as
disclosure by a CIA employee of a cover identity to someone in the Commerce
Department would not be an offense if the person receiving the identity was cleared
for access to classified information. The CIA employee would be subject to adminis-
trative disciplinary sanctions, however.
c. Third, the cover identity of the covert agent or such agent's intelligence
relationship to the United States must be classified.
d. Forth, the person making the disclosure must know that the United States is
taking affirmative measures to conceal the covert agent's intelligence relationship
to the United States. Affirmative measures include, but are not limited to, the
establishment and maintenance of a cover identity and the use of clandestine means
of communication.
e. Finally, the information disclosed which identifies any covert agent need not be
classified information. Any information which identifies a covert agent can be used
to establish the offense if the other elements are present. This is particularly
important under the third category of the offense which does not require the
government to prove that the person making the disclosure had authorized access to
classified information. Thus, under this category, if all the other elements are
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present, the government would be able to establish the offense even if the defendant
claims he obtained the information from publicly available sources.
The only difference in the substantive offenses created by the House and Senate
versions is found in the category which is intended primarily to cover nonemployees
and which does not require a showing that the person making the disclosure had
authorized access to the classified information.
The House version provides in subsection 501(c) that-
"Whoever, 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,
discloses, with the intent to impair or impede the foreign intelligence activities of the
United States, to any individual not authorized to receive classified information.
11
This formulation contains a dual intent requirement. Under it the government
would have to prove that the disclosure was made 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, and that the actual disclosure of the
covert agent was made with the intent to impair or impede such foreign intelligence
activities. The Department of Justice objects to this formulation for the following
reasons. First there could be very real difficulties in proving intent in some situa-
tions where the record may not be as clear as it is with Philip Agee or Covert
Action Information Bulletin. Secondly, the Department is concerned that such a
subjective intent standard will impermissibly "chill" speech and press criticism of
CIA in other areas as a result of fear that such criticism would be evidence of intent
to impair or impeded the foreign intelligence activities of the United States.
The Senate version provides in subsection 510(c) that-
"Whoever, in the course of a pattern of activities intended to identify and expose
covert agents and with reason to believe that such activities would impair or impede
the foreign intelligence activities of the United States, discloses any information that
identifies an individual as a covert agent to any individual not authorized to receive
classified information.. .
First, in contrast the House version, the Senate version has only a single intent
standard which would be easier to prove. Under the Senate language, the govern-
ment would only have to prove that the disclosure occurred in the course of a
pattern of activities intended to identify and expose covert agents, and would not
have to show that there was intent to impair or impede foreign intelligence activi-
ties. Second, the government would have to show that the person making the
disclosure had reason to believe that such pattern of activities would impair or
impede the foreign intelligence activities of the United States. This element would
be easier to prove than the second intent element in the House version ("intent to
impair or impede foreign intelligence activities of the United States") since the
element required is an "objective' one, based on what a reasonable man would be
expected to know. Under such a standard the U.S. Attorney General must convince
a jury that a reasonable man should know that impairment of foreign intelligence
would result from disclosures like those made by Covert Action Information Bulle-
tin. Finally, the "pattern of activities" language of the Senate version requires more
than proof of just a single effort at disclosures, as under the House version. While
this Senate language may mean that a single first-time disclosure standing alone
would not constitute a "pattern of activities," it provides the necessary protection to
assure the press that one-time disclosures for "legitimate" purposes are not covered.
However, the "pattern of activities" does not necessarily have to amount to a series
of disclosures, and could be established by showing the investigative acts designed to
identify and expose covert agents.
Both the Senate and House version have certain defenses in common:
A. Prior public acknowledgement or revelation by the United States of the intelli-
gence relationship that has been disclosed is a defense.
B. There is a bar to accomplice or conspiracy prosecution of persons who have not
had authorized access to classified information unless those persons act so as to
meet the element embodied in the third category of the offense. Thus, a newsman
could not be prosecuted as an accomplice of or for conspiracy with a cleared
employee unless the newsman also meets the standards of the third category of the
offense.
Mr. Chairman, the Senate Bill strikes the appropriate balance between the need
for immediate legislative relief and legitimate First Amendment concerns. As re-
ported, S. 2216 provides the government with an effective tool to prosecute both
present and former Intelligence Community and government employees as well as
those misguided individuals outside the Intelligence Community and government
who take it upon themselves to destroy the foreign intelligence apparatus of our
nation.
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Mr. Chairman, there is a pressing need for effective legislation to discourage
unauthorized disclosures of intelligence identities. The credibility of our country in
its relationships with foreign intelligence services and agent sources, the personal
safety and well-being of patriotic Americans serving their country, and the profes-
sional effectiveness and morale of our country's intelligence officers are all at stake.
As matters now stand the impunity with which protected intelligence identities
may be exposed implies a governmental position of neutrality. It suggests that U.S.
intelligence officers are "fair game" for those members of their own society who
take issue with the existence of CIA or find other perverse motives for making these
unauthorized disclosures. Specific statutory prohibition of such activity is critical to
the maintenance of an effective foreign intelligence service. It is imperative that a
message be sent that the unauthorized disclosure of intelligence identities is intoler-
able.
On behalf of Admiral Turner, I urge you to proceed to report legislation that will
provide an effective remedy.
Mr. HITZ. Yes, sir. I understand that we are somewhat pressed
for time this afternoon so I will attempt to summarize my state-
ment.
It is a pleasure to be here to speak in favor of this legislation. I
think recent world events have dramatically demonstrate4 the im-
portance of maintaining a strong and effective intelligence appara-
tus.
The intelligence community must have both the material and the
human resources needed to enhance its ability to monitor the
military activities of our adversaries and to provide insights into
the political, economic, and social forces which will shape world
affairs in the eighties.
It is particularly important that every effort be made to protect
our intelligence officers and sources.
I would like to make clear for the record at this point, Mr.
Chairman, the damage that is being caused by the unauthorized
disclosure of intelligence identities. I would then like to briefly
address several fallacies and misconceptions that have crept into
public discussion and debate about this problem.
Obviously, security considerations preclude my confirming or
denying specific instances of purported identification of U.S. intelli-
gence personnel.
Suffice it to say that a substantial number of these disclosures
have been accurate. The destructive effects of these disclosures
have been varied and wide ranging. Our relations with foreign
sources of intelligence have been impaired. Sources have evinced
increased concern for their own safety. Some active sources and
individuals contemplating cooperation with the United States have
terminated or reduced their contact with us.
Sources have questioned how the U.S. Government can expect its
friends to provide information in view of continuing disclosures of
information that may jeopardize their careers, liberty, and very
lives.
Many foreign intelligence services with which we have important
liaison relationships have undertaken reviews of their relations
with us. Some immediately discernible results of continuing disclo-
sures include reduction of contact and reduced passage of informa-
tion.
In taking these actions some foreign services have explicitly cited
disclosures of intelligence identities. We are increasingly being
asked to explain how we can guarantee the safety of individuals
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who cooperate with us when we cannot protect our own officers
from exposure.
You can imagine the chilling effect it must have on a source to
one day discover that the individual with whom he has been in
contact has been openly identified as a CIA officer.
The professional effectiveness of officers so compromised is sub-
stantially and sometimes irreparably damaged. They must reduce
or break contact with sensitive covert sources, continued contact
must be coupled with increased defensive measures that are inevi-
tably more costly and time-consuming; some officers must be re-
moved from their assignments and returned from overseas at sub-
stantial cost. Years of irreplaceable area experience and linguistic
skill are lost. Reassignment mobility of the compromised officer is
impaired. As a result, the pool of experienced CIA officers is being
reduced.
Such losses are deeply felt in view of the fact that in comparison
with the intelligence services of our adversaries, we are not a large
organization. Replacement of officers thus compromised is difficult
and in some cases impossible.
Once an officer's identity is disclosed, counterintelligence analy-
sis by adversary services allows the officer's previous assignments
to be scrutinized, producing an expanded pattern of compromise
through association.
Such disclosures also sensitize hostile security services and for-
eign populations to CIA presence, making our job far more diffi-
cult.
Finally, such disclosures can place intelligence personnel and
their families in physical danger from terrorist or violence-prone
organizations.
I need only cite to you the recent disclosures in Jamaica by Louis
Wolf, one of the editors of the Covert Action Information Bulletin,
and the subsequent attempts made on the lives of U.S. Government
employees there.
Those who seek to destroy the intelligence capabilities of the
United States and others whose opposition to identities legislation
is based upon genuine concern about first amendment consider-
ations have propagated a number of fallacies and misconceptions.
Understandably some of these have found their way into discussion
of identities legislation before the Congress and in the press.
One of these fallacies is that accurate identification of CIA per-
sonnel undercover can be made merely by consulting publicly
available documents like the State Department's Biographic Regis-
ter. And that identities legislation would impinge on discussion of
information that is in the public domain.
This is absolutely untrue. There is no official unclassified listing
anywhere that identifies U.S. undercover CIA officers.
The intelligence relationships which we are seeking to protect
are classified, and a great deal of money and effort is expended to
maintain their secrecy. The names of individuals who are intelli-
gence officers do appear in certain unclassified documents, but they
are not identified as intelligence officers.
This is consistent with our need to establish and maintain cover
to conceal the officer's intelligence affiliation. The State Depart-
ment Biographic Register, an unclassified document until 1975, and
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similar documents cannot be used, without additional specialized
knowledge and substantial effort, to make accurate identifications
of intelligence personnel.
It is only because of the disclosure of sensitive information based
on privileged access and made by faithless Government employees
with the purpose of damaging U.S. intelligence efforts, that the
public has become aware of indicators in these documents that can
sometimes be used to distinguish CIA officers.
It is noteworthy, however, that these indicators do not invariably
lead to correct identifications. The substantial number of accurate
identifications that are being made by the Covert Action Informa-
tion Bulletin long after the Biographic Register ceased to be public-
ly available indicates these disclosures are based on extensive addi-
tional investigation presumably using many of the same techniques
as any intelligence service uses in its counterintelligence efforts.
Another fallacy widely circulated by opponents of identities legis-
lation is that prohibition of the unauthorized disclosure of intelli-
gence identities would stifle discussion of important intelligence
and foreign policy issues.
This simply is not so. Identities legislation is not designed to
forestall criticism of intelligence activities, prevent the exposure of
wrongdoing or chill public debate on intelligence and foreign policy
matters. Rather, such legislation would protect a narrow, essential
element of our Nation's foreign intelligence programs for which
the Congress appropriates taxpayer dollars year after year.
In this regard it is important to recall that virtually all of the
legitimate official and unofficial examinations of intelligence activi-
ties which have taken place over the past several years have been
accomplished without the revelation of intelligence identities of the
kind we are seeking to protect.
Extensive public and congressional scrutiny and criticism of in-
telligence activities has taken place without recourse to wholesale
disclosure of the names of intelligence personnel.
Another serious misconception which has arisen in connection
with the debate over identities legislation is the contention that
such a statute would prevent legitimate "whistleblowing" by indi-
viduals whose intent is to expose alleged illegality or impropriety.
A properly drafted statute will have no such effect.
Provision can be made to insure that the transmittal of informa-
tion to the House and Senate Intelligence Committees is not cov-
ered by the statute's prohibitions, and we support language such as
that contained in subsection 502(d) of H.R. 5615.
Identities legislation, therefore, need not impact at all on those
whose legitimate purpose is to report alleged wrongdoing.
Mr. Chairman, I would like now to discuss briefly how identities
legislation can be structured so as to effectively proscribe the most
damaging unauthorized disclosures without impairing the rights of
Americans or interfering with congressional oversight.
Legislation in this area should, first of all, hold current and
former Government employees and others who have had author-
ized access to classified identities information to a higher standard
than persons who have not had such access. Such individuals,
because of their employment relationships or other positions of
trust, can legitimately be held accountable for the deliberate disclo-
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sure of any identity they know or have reason to know is protected
by the United States.
A statute in this area, Mr. Chairman, if it is to be effective, must
also cover those who have not had an employment or other rela-
tionship of trust with the United States involving authorized access
to classified identities information.
Both the House and Senate versions create three categories of
the offense of disclosures of intelligence identities:
A. Disclosures of a "covert agent" by persons who have or who
have had authorized access to classified information that identifies
such a covert agent. This category covers primarily disclosure by
intelligence agency employees and others who get access to classi-
fied information that directly identifies or names agents and per-
sons under cover.
B. Disclosure of a covert agent by persons who have learned the
identity as a result of authorized access to classified information.
This category covers disclosures by any person who learns the
identity of a covert agent as a result of Government service or
other Government relationship and access to classified information
that does not identify or name a specific agent or person under
cover.
C. Disclosure of a covert agent by anyone who makes the disclo-
sure in the course of an effort to disclose covert agents with an
intent to impair or impede intelligence activities, which is the
House version, or as part of a pattern of activities intended to
identify and expose covert agents with reason to believe that such
activities will impair or impede foreign intelligence activities,
which is the Senate version, and I associate myself with the re-
marks of Mr. Keuch in suggesting that as far as the administration
is concerned there is a preference for the language in the Senate
version on that particular point. While the House and Senate
Intelligence Committees' versions differ here, this category is in-
tended to encompass persons like Louis Wolf and to exclude rep-
utable journalists.
I will discuss the difference in the House and Senate language
more fully.
All three categories of the offense have, in both versions, several
common elements:
A. First, the person disclosed must be a "covert agent." This is a
defined term in both versions and includes (1) officers and employ-
ees of intelligence agencies whose identities are classified and who
are serving, or have, within the last 5 years, served outside the
United States; (2) agents and sources who are U.S. citizens and who
reside outside the United States or who are agents of or informants
to the foreign counterintelligence or foreign counterterrorism com-
ponents of the FBI, and whose identities are classified information;
and (3) foreign agents and sources of an intelligence agency whose
intelligence relationship to the United States is classified informa-
tion.
B. Second, the disclosure must be to a person not authorized to
receive classified information. This means that the Government
would have to prove that the identity was revealed to some un-
cleared person.
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Thus, some employee disclosures, such as disclosure by a CIA
employee of a cover identity to someone in the Commerce Depart-
ment would not be an offense if the person receiving the identity
was cleared for access to classified information. The CIA employee
would be subject to administrative disciplinary sanctions, however.
C. Third, the cover identity of the covert agent or such agent's
intelligence relationship to the United States must be classified.
D. Fourth, the person making the disclosure must know that the
United States is taking affirmative measures to conceal the covert
agent's intelligence relationship to the United States.
Affirmative measures include, but are not limited to, the estab-
lishment and maintenance of a cover identity and the use of clan-
destine means of communication.
Finally, the information disclosed which identifies any covert
agent need not be classified information. Any information which
identifies a covert agent can be used to establish the offense if the
other elements are present.
This is particularly important under the third category of the
offense which does not require the Government to prove that the
person making the disclosure had authorized access to classified
information.
Thus, under this category if all the other elements were present,
the Government would be able to establish the offense even if the
defendant claims he obtained the information from publicly availa-
ble sources. The only difference in the substantive offenses created
by the House and Senate versions is found in the category which is
intended primarily to cover nonemployees and which does not re-
quire a showing that the person making the disclosure had author-
ized access to the classified information.
Mr. Chairman, I think there is a discussion in my submitted
testimony of the differences between the House and Senate ver-
sions of 501(c) that will probably be the area in which you have
questions.
Why don't I skip that in terms of reading it and just make a
final statement that as far as the Central Intelligence Agency is
concerned and the intelligence community as a whole, there is a
pressing need for effective legislation to discourage unauthorized
disclosures of intelligence identities.
I know of no issue, for instance, that is more on the minds of
staff employees of the Central Intelligence Agency. Officers whose
careers have been interrupted in the sense of a normal career
track which might have given them the opportunity to serve in x
country but where, because their names have been published in
one of the Covert Action Information Bulletin publications or in
Dirty Work 2, that assignment is not advisable or feasible at this
time.
It seems to me that the House Intelligence Committee has
worked extremely diligently to report out a bill that deals with this
conduct in a way that preserves legitimate first amendment con-
cerns, and let me say for the Director of Central Intelligence,
Admiral Turner, we would be most enthusiastically supporting the
efforts of this subcommittee in reporting out this bill, H.R. 5615, as
reported by the House Intelligence Commmittee.
Mr. EDWARDS. Thank you, Mr. Hitz.
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The gentleman from Ohio, Mr. Seiberling.
Mr. SEIBERLING. Thank you. I have listened to your testimony
with great interest. Of course, your point that such disclosures can
cripple our intelligence activities is obvious to anybody who knows
anything about the problem from the standpoint of collecting; that
is a valid point.
I was interested in your statement that, without extensive coun-
terintelligence-type activities, it is not possible in the usual run of
things to ascertain who our intelligence agents of the United States
are merely by going over unclassified material.
As far as I am concerned, and I think probably as far as this
committee is concerned, that is one of the crucial issues. There is a
freedom of speech and freedom of press problem here and I think
we have to be very careful that we do not make substantial inroads
on that.
Let me ask you two questions. Would you feel that a bill would
be satisfactory that required that any classified information, in
order to be protected, shall have been properly classified? In other
words, a court could look into the question of whether it should
have been classified?
Mr. HITZ. Look behind the authorizing official. I think, and I
would defer to Mr. Keuch with respect to the particular problems
of prosecution, but I would think that it would create an additional
and perhaps substantial burden if the court had to review de novo,
whether or not the information was properly classified beyond the
judgment of the duly authorized classifying official.
Mr. SEIBERLING. Well, it is not beyond the memory of the mem-
bers of this committee that we had experience with classifications
that were indulged in by everyone from the President of the
United States down to lesser officials simply to cover up improper
activities. That is one of the reasons why the Freedom of Informa-
tion Act permits the judge to look behind the classification.
I would like to get Mr. Keuch's comments on this.
Mr. KEUCH. If you are talking about a statute only limited to the
compromise of classified information per se, as I guess we learned
in the debates over some of the early formulations of the Uniform
Criminal Code, that does raise serious constitutional questions. But
the statute here does more than that. That is, it requires a compro-
mise of a specific type of classified information, that relating to a
covert agent.
There is engrafted into the legislation what I consider to be the
litigative history of cases in the espionage area, classified and
compromises area, which do provide that there are defenses to
prosecutions of that category of cases, if the information is indeed
in the public domain, if the Federal Government has not taken the
necessary steps to protect the information.
But here the very definition in the statute in both the House and
Senate versions of covert agent and the definition of classified
information and the requirement specifically in the language of the
bill that the individual must make the compromises knowing that
the Federal Government has been taking steps to protect the infor-
mation, and specifically providing that it is a defense to the pros-
ecution if the information has been revealed by the Federal Gov-
ernment, I think would answer the concerns that you are raising.
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It is not merely classified information compromises that the
statute reaches, but compromise of classified information relating
to a specific type of information, that is the identities of covert
agents.
Mr. SEIBERLING. It does seem to me that the classification of the
identity of covert agents should obviously be a proper classification.
I don't think really there is much of a problem if that is the only
kind of classified information that we are likely to be dealing with.
While there are other types of information that might reveal iden-
tities, the mere fact that that information could be used to extract
the identity of an agent ought to be sufficient grounds for classifi-
cation.
So I wouldn't think there would be a problem but I wanted to
make sure I was right in that conclusion. What you are telling me
is that that is a correct conclusion.
Mr. KEUCH. I think that is correct.
Mr. SEIBERLING. So, the additional burden would not really be a
very great one, would it?
Mr. KEUCH. It would not be a great one, Mr. Congressman.
I guess my point is that if the statute, in all the ways I outlined,
requires the very thing you say would be the ultimate test, that is
if indeed it does reveal a covert agent, which would be required by
the statute, if it reveals a covert agent that has not been revealed
by the Federal Government or in some other manner and that the
Federal Government has taken pains to protect the identity of that
agent, you are saying if all that is established then it must be
properly classified. To engraft an additional level of proof--
Mr. SEIBERLING. I am saying maybe it doesn't need to be the fact
that has to be proved by the prosecution but merely an affirmative
defense, that the information that he used was not properly classi-
fied, even if it was classified.
Mr. KEUCH. I guess my only lingering concern might be that I
would still want to protect the properly protected identity of the
covert agent irrespective if there had been a technical mistake in
the application of the classified stamp.
For example, the Executive order on classified information, as
those of us who deal with it day after day realize, is a very
technical order. The regulations issued by the various departments
are also very specific and very precise.
I would not like to see an argument made that you have to go in
every case and you would have to prove that the individual who
signed the classification stamp was at the proper level, and had the
proper authority. Nor would I like to see that defense for an agent
who otherwise meets all the criteria of the statute. We are not
merely talking about the compromise of a piece of classified infor-
mation. It is a piece of classified information involving a very
specific thing with the statutory definition for covert agent and
very definite affirmative defenses.
For example, if someone who did not have top secret classifica-
tion erroneously marked the document "Top Secret", or the stamp
erroneously marked the document, or some other technical require-
ment was not complied with, I would not like to see that be a
defense.
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When I balance that kind of mischief that could come up in a
criminal case against the need, then I guess I would be opposed to
such a provision.
Mr. SEIBERLING. My time has expired but if the only defect in the
classification were a technical one and otherwise it was informa-
tion that should be classified, then if the statute could make that
kind of distinction, I think it should.
Mr. KEUCH. I believe the statute as drafted would meet that in
effect because these materials are in fact confined by the statutory
definition by their very terms--
Mr. SEIBERLING. You mean the statutory definition of what is
proper classification would have to be in the statute and not just a
technical definition under the regulation?
Mr. HITZ. Parenthetically, Mr. Seiberling, as a closing comment,
the House Intelligence Committee felt strongly enough about this
matter of maintaining cover, maintaining the secrecy the executive
branch taking all efforts to take effective measures to provide
intelligence officers with sufficient cover abroad, that they added a
section., 503(a), to direct the President to do so. So it is a concern.
Mr.EDWARDS. Mr. Hyde?
Mr. HYDE. Thank you, Mr. Chairman.
Mr. Hitz, would you describe some of the recent incidents that
involved revelations of the identities of covert agents?
Mr. HITZ. Well, the most--
Mr. HYDE. Aside from Welch case, which we all know about.
Mr. HITZ. The most telling identification and one has to be
careful here, was one that occurred on July 4 this year, Mr. Hyde,
in Jamaica, where 15 officers of the American Embassy were iden-
tified by Mr. Louis Wolf, one of the contributors to the Covert
Action Information Bulletin in a press conference in Kingston and
shortly thereafter, followed by a day or two, Mr. Richard Kinsman,
who was named in that press conference as the Chief of the CIA
station in Jamaica, his home was beset in the nighttime by a gang
armed with .45 caliber weapons, they shot up the house, they shot
through the bedroom of Mr. Kinsman's daughter, who luckily was
not in the room at that time, and threw a grenade in the front
yard.
Luckily there were no casualties but this was an attempt which
was followed several days later by the attack on another of the
named individual's house, or, rather, that was an attempted attack,
and they were apprehended before its consummation.
Again, no loss of life. But that is the most recent incident.
These--it is interesting to note that the press conference and the
identifications of these 15 individuals was accompanied also by a
description of their automobiles, the license plate numbers that the
automobiles carried, the addresses of their houses, the home tele-
phone and office telephone of the individuals involved.
Mr. HYDE. We have been talking about a chilling effect on first
amendment rights. However, the fact that this information can be
disclosed, as it is, must have a very chilling effect on informants,
and sources providing your agency with information. If their covert
status may be leaked like a sieve, and spread with impunity before
the world. Why should anybody risk his life, his job, or anything to
reveal information?
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I suspect that these incidents must have really inhibited the
operation of your agency. Is that correct?
Mr. HITZ. Yes, that has had a very telling effect and I think as
you can imagine, that will extend beyond the individual incident.
Mr. HYDE. Certainly.
Mr. HITZ. It will be harder, I would suppose to convince middle
ranking officers to just take these jobs.
Mr. HYDE. Mr. Keuch, I am troubled by the one-bite-of-the-apple
theory with respect to section 501(c). Unless you can prove an
ongoing effort or a pattern of activities under the various formula-
tions, which require more than a single incident, correct me if I am
wrong and I hope I am wrong, an individual disclosure seems to be
permitted, even if it is going to impair intelligence efforts, so long
as it is not part of a string of events or an ongoing effort.
I am troubled by that, because I can see that as a loophole. I can
see me having this information and giving it to her, if she makes
one revelation that is not an ongoing effort, I am really the culprit.
Mr. KEUCH. I understand. I share your concerns. I have two
responses. One, of course, as is obvious from all the testimony and
debates both before the House and Senate committees, this formu-
lation is an attempt to draft a statute that does reach narrowly,
that is, reach those people who should be most subject to the
legislation.
I quite agree with you that the one time, the first time revelation
may be egregious, may be a very severe problem but, again, it is an
attempt to reach the types of individuals that the legislation is
supposed to reach and to hopefully, provide protections for those
areas that are protected by the first amendment.
I would like to stress, however, it would certainly not be our
interpretation of the statute that you had to have a series of
revelations. You would have to have an effort to expose. Whether
you take the Senate or House version, you have to have this
pattern of activities intended to expose. In our judgment, it could
be a pattern of efforts, attempts to get that information, attempts
to reach it in different ways.
Let me also say, though it is not a complete answer, the disclo-
sure you mentioned while not covered by this legislation, depend-
ing on the facts, would be reached by the normal espionage stat-
utes. In my judgment and in the Department of Justice, the situa-
tion you described would be a violation of 793, either subparagraph
(c) or (d), depending on whether you had authorized access or
unauthorized access to the information.
The pattern that I have identified avoids a great many problems,
such as graymail, that we would have in the normal espionage
statute which has a much broader reach. It also provides a very
specific piece of legislation indicating that this type of information
should be given special protection.
Mr. SENSENBRENNER. Will the gentleman yield?
Mr. HYDE. My time isn't up, but I yield.
Mr. SENSENBRENNER. How many prosecutions has the Depart-
ment of Justice instituted under the existing espionage statutes in
cases similar to the ones you have described?
Mr. KEUCH. None.
Mr. SENSENBRENNER. Why not?
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Mr. KEUCH. There are a variety of reasons. If we want to talk
about specific cases I would have to do that in executive session.
There are problems with espionage prosecutions. One, is the stand-
ard is very broad. It is not a specific type of information. It must
mean information relating to the national defense. Very often we
find ourselves in a situation where we must disclose a great deal of
classified information in order to bring the prosecution itself. That
is a problem.
You are in effect hurting the national security to protect the
national security. There is a problem of confirmation of informa-
tion again under the broader standard. That is always a problem.
Certainly the questions of proof and discovery of the individual
who has disclosed or compromised is always present. But the first
of the two are our major concerns generally, that is the breadth of
information we have to provide and the fact we provide confirma-
tion in bringing those cases. Other reasons I would have to go into
in executive session.
Mr. SENSENBRENNER. If this bill were enacted into law, what
assurance would you give this subcommittee that the Department
of Justice would more vigorously enforce this law than they have
enforced existing espionage laws?
Mr. KEUCH. Well, I hope it is not a question of a lack of vigorous
enforcement by the Department of Justice under the existing laws.
We investigate when referrals are made to us. We have attempted
to bring prosecutions in those matters in which we felt we could.
We will continue to do so. If you want a guarantee that we will
apply this law vigorously, we certainly will.
If you want a guarantee as to a list of prosecutions, say I come
back next year and say we have 10 cases now that we didn't have
last year; I can't make that promise. It depends on the facts after
this legislation is passed.
The Department clearly feels this is an important piece of legis-
lation and we will certainly enforce it to the best of our ability.
Mr. SENSENBRENNER. I thank the gentleman from Illinois for
yielding.
Mr. EDWARDS. The gentleman from Massachusetts, Mr. Drinan.
Mr. DRINAN. Thank you, Mr. Chairman.
I agree with you on the Philip Agee case but I am not certain
you have a remedy for Mr. Wolf. Do you think if this law passed
Mr. Wolf would just cease and desist publication of his CovertAc-
tion? Assuming he would not, you go to court and he makes the
case that he made in a memo to this committee. He says that I am
opposed to the CIA in its covert activities, that we believe that the
CIA does not exist primarily to gather intelligence but to interfere
in the affairs of other nations, to manipulate the events covertly
and they are opposed to that and that is why they are taking these
means.
You would say that he has criminal intent, he has the mens rea,
he has the desire to impede the intelligence activities.
Can you make that a crime? He is sincerely opposed as millions
of people are opposed to covert activities of this kind.
Mr. KEUCH. First I think you can make it a crime. It is possible
to debate the activities of the intelligence agency and what they
are doing without revealing seriatim a long list of individuals who
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are enjoying or trying to have the protection of the covert status
who, whether you agree with the wisdom of the programs or not,
are there to serve their country.
Mr. DRINAN. There is an Official Secrets Act. We keep these
covert actions and operatives as official secrets. But, if he sincerely
opposes them, if he believes they are interfering with the democra-
cy of other nations, he has no remedy.
Mr. KEUCH. I don't think we have official secrets. You don't have
to reveal the identity of covert agents. The legislation recognizes
the fact, as Mr. Hitz's statement says, that there are opportunities,
channels open to the person who sincerely believes that what we
are doing is incorrect and wrong, illegal, immoral and the rest, to
enter into that debate, bring it to the attention of the appropriate
subcommittees and the Congress.
That debate can continue without the revelation of covert opera-
tives. To strip away the protection from people who are acting for
their country in rather dangerous circumstances, to subject them
to the type of activity that faced the gentlemen in Jamaica and
may have faced Mr. Welch, in the interest of public debate, I don't
think is a sincere argument.
Mr. DRINAN. It may be constitutionally, though. This is his only
way of exposing what he thinks the United States of America, his
country, should not be doing.
Mr. KEUCH. As the Department expressed, we do have some
constitutional concerns about the intent element of the bill.
Mr. DRINAN. Because you might lose in court?
Mr. KEUCH. The intent element as it is specified in the bill. Let
me stress, our constitutional concerns are not to the fact that
legislation attempts to reach a compromise of covert agents. If that
is the situation, if our Constitution bars us from providing that it is
a criminal act to reveal the names of our covert agents, then I
think we had perhaps better wipe up our intelligence business and
get out of the business entirely.
Mr. HITZ. That is, Congressman Drinan, I think the House Intel-
ligence Committee report is particularly eloquent on this particular
subject, at page 12, bottom of the page. They state in dealing with
section 501(c):
The added requirement that the disclosure be in the course of an effort to identify
and expose undercover officers and agents makes it clear that the defendant must
be engaged in a conscious plan to seek out undercover intelligence operatives and
expose them with the intent to destroy United States intelligence efforts.
Mr. DRINAN. Mr. Wolf is engaged in that and you are saying it is
a crime?
Mr. HITZ. No, the House Committee, I believe, is trying to argue
that it should be a crime. The defendant, in other words, has made
it a practice to fer > et out and then expose undercover officers or
agents for the purpose of damaging an intelligence agency's effec-
tiveness and the disclosure which is the subject of the prosecution
must be made with that intent. And--
Mr. DRINAN. Mr. Wolf has that intent. I am saying it is not
necessarily a criminal intent. This is the only way he can carry out
his objective of preventing U.S. forces carrying out this interfer-
ence with the governments of other countries.
Mr. KEUCH. I don't think that is the correct way, it is not the
only way he can carry it out. Indeed, I suggest they have selected
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one of the most ineffective ways. There does sit the House and
Senate Intelligence Committees; there is a Presidential Intelligence
Oversight Board--
Mr. DRINAN. You are missing the point. All of those agencies
believe in covert activity. They think it is fine if we can destabilize
a country, change it to democracy, if we can alter the Government
of Nicaragua and lean them to us, they believe in it but there is no
remedy for Mr. Wolf.
Mr. KEUCH. Whether or not covert activities should be carried
on, I suggest can be debated in the public forum. We have just gone
through a minute's argument showing how, without revealing one
covert agent. I would suggest that could be done.
Mr. HYDE. Would the gentleman yield?
Mr. DRINAN. I don't have any time but I yield.
Mr. HYDE. I think what Father Drinan appears to be saying is
that, because this gentleman disagrees with the intelligence pro-
grams and policies which have been thrashed out in our democratic
forum, he should be able to obstruct them with impunity, because
it comes under his first amendment right of free speech. His mo-
tives, as distinguished from his intent, are beneficent and aimed at
saving humanity, but his intent is to reveal these identities and
jeopardize our intelligence efforts, because that is exactly the effect
of his acts. Further, the suggestion seems to be that, even though
he lost in the social policy arena, he still should have the right to
make these disclosures and be immune from criminal prosecution.
I just don't buy this approach.
Have I misstated the argument made by the gentleman from
Massachusetts?
Mr. HITZ. But it is resting on also a supposition that this is not
the proper forum to confirm or deny. And that is whether or not
we are engaged in the activities which he has a violent moral
objection to. He makes that assumption that is something that--
Mr. HYDE. I believe that Father Drinan would argue that he is
entitled to make that assumption. It is at least controversial.
Mr. DRINAN. It is at least historically true.
Mr. HITZ. The other issue, it seems to me, is if he takes this view
with respect to that activity, might he not have-and I hope this is
an entirely fatuous example-but he might take the same kind of
moral objection to paying his income taxes or anything else.
The point I am--
Mr. HYDE. On the ground that his taxes are going to be used for
the purchase needed for the defense of this country.
Mr. HITZ. Indeed.
The point is that if the Congress of the United States through
the oversight mechanism, appropriation of monies annually-au-
thorization and appropriation of monies for the existence of an
intelligence community, an intelligence agency, and the review
procedures which exist for covert action activity, representatives of
U.S. citizens in effect concurring on the wisdom or unwisdom of
that matter, if he is not willing to abide by those judgments, it
seems to me that it is proper for the Congress to make this particu-
lar activity unlawful.
Mr. EDWARDS. Would the gentleman yield?
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I find that a rather extraordinary statement, Mr. Hitz. Are you
saying that citizens of the United States and the press and scholars
and just ordinary citizens do not have an oversight responsibility
and that they must bow to the judgments of congressional commit-
tees on the behavior of police officers?
Mr. HITZ. Not as a general matter, Mr. Edwards. I am saying in
the activity of which we are speaking, the clandestine collection of
intelligence information, it is not a matter in which the American
public, as a mass, is going to have access to the details of the
operations.
Now, they will have to do that through surrogates, their elected
representatives. And the existence of an organization whose func-
tion is to collect this information and whose activities are author-
ized and appropriated for each year by the Congress, has to contin-
ue to do its work without having to fear that some individual is
going to expose the identities of these intelligence officers with the
declared intent of trying to make it impossible for them to do their
job and, indeed, endanger their lives.
Mr. DRINAN. I ask unanimous consent to proceed for 3 additional
minutes.
Mr. EDWARD. Without objection.
Mr. DRINAN. Let's come back to the jurisdictional point on which
this subcommittee came in; namely, the FBI. Would you tell me,
Mr. Keuch, about how many FBI agents might be involved in this?
Why did the FBI apparently ask for the expansion of this bill in
the Intelligence Committee?
Mr. KEUCH. Mr. Congressman, I would like to give you the num-
bers at a later time. I would be guessing if I gave them to you now.
I don't have them. The reason is quite simple. I believe the first
time I testified on this legislation before the House it was franky
an oversight; the fact is that the FBI does have individuals in the
foreign counterintelligence field that are really in the same posture
and face the same dangers and the same detriment to their careers
and lives and physical safety as do people from the CIA and DIA
and the rest.
Mr. DRINAN. Mr. Wolf hasn't heard about them yet.
Mr. KEUCH. That is correct. Perhaps there has not been the same
number of disclosures. I suppose there have not been the same
number of disclosures of the DIA and other intelligence agencies
covered by that legislation.
It did not seem to make logical sense to exclude people from the
FBI who are engaged in exactly the same kind of efforts. I would
stress it is that part of the FBI engaged in foreign intelligence
activities and they would have to meet the same definition of
covert agent that anyone else would, so it would be someone serv-
ing overseas.
Mr. DRINAN. It is my information there are some 40 or 50 FBI
employees in the foreign liaison offices. They deal with drugs,
narcotics and other things, but give me again the reason why their
inclusion seemed to be important? I am impressed that they
weren't thought of until the last hour. All of a sudden, without
hearings, they also have this new immunity.
Mr. KEUCH. I am not so sure it was the last hour. The first time I
testified would be when 5615 was first being considered. We sup-
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ported the inclusion of the FBI. It was raised by the staff prior to
that time. The reason, again, is that those people serving in the
foreign counterintelligence aspect of the Bureau are in exactly the
same logical and factual position as the individuals who are assets,
covert agents serving other agencies.
There seems to be no reason to draw a distinction. Again, they
would have to meet the definition of covert agent. Those in FBI
who served exclusively in this country would not be reached by
this legislation.
Mr. DRINAN. The key question ultimately, if this bill passes, is
that if Mr. Wolf gets information not from classified sources but
from some other source, he would be punished and put in jail for
an act of publication and the civil libertarian community and the
newspaper publishers of America and many other people say that
is precisely what the first amendment forbids.
Mr. KEUCH. Of course he would be, an individual would be pun-
ished under this statute if he published the identity of the covert
agent, that he has intentionally made that publication, knowing
two things, one that the information he is releasing would identify
such an agent, knowing that the U.S. Government had taken steps
to protect the identity of that agent, and if he did show a pattern of
activities that was intended to create such exposure or part of an
effort to create such exposure, that is absolutely correct. There is a
debate as to whether that can be constitutionally reached. The
Department feels that it can, and we have so testified.
Mr. DRINAN. The publisher of the New York Times can go to
jail?
Mr. KEUCH. If he satisfied the statutory standards. I always
believe that the law should be applied evenly. It wouldn't matter to
me whether it was the publisher of the New York Times or pub-
lisher of the Covert Action Bulletin if he satisfied the standards
and the terms of the bill. That is what we believe the law is all
about.
Mr. SENSENBRENNER. Mr. Hitz, I have the last two issues of the
Covert Action Information Acts Bulletin. In the back, there is a
section entitled "Naming Names," which lists foreign agents sta-
tioned in foreign countries. Incidentally, one was a law school
associate of mine whose whereabouts were unknown until I picked
up this issue today.
Mr. DRINAN. If the gentleman will yield, I had that same experi-
ence. It is a useful guide.
Mr. SENSENBRENNER. Some of the information in this section
looks as if it might have been gleaned from a biographical publica-
tion issued by the State Department. If this bill were passed, would
you would have the requisite framework to prosecute the publish-
ers of this bulletin, since it looks like it might be a regurgitation of
information which might be elsewhere in the public domain.
Mr. Hrrz. "Naming Names" is a regurgitation from some com-
pendium. The State Biographical Register, as you know, is a recent
phenomenon. Others could, I suppose, be taken from most reports
or other kinds of documents that may have been in unclassified
context. There is a statement, a listing of the personnel in a given
embassy or mission with the biographies set forth in that fashion
indiscriminately, as to their real affiliation with State, commercial
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fisheries, or whatever. But clearly, one would have to be very
careful as to what one uses as a basis for prosecution in this area.
Mr. SENSENBRENNER. Considering the standard of proof in any
criminal prosecution is guilty beyond a reasonable doubt, would it
be criminal to and merely stating that a certain individual was
posted to this embassy or that embassy, spent time in the State
Department headquarters in Washington, and now, "Our records
indicate he has been posted to an embassy in country X."?
Mr. HITZ. They are identifying that individaul as a covert agent
in the context of this bill and if they meet the requirements of
section 501(c), that, I think would not apply. Jump in Bob, if I am
overstating that.
In short, what they appear to be taking it from is a garden
variety biographical compendium. They are saying this is past
history, but presently he is the CIA station chief in country X and
that is the exact relationship to the Intelligence Agency which is as
a classified matter.
Mr. SENSENBRENNER. May I ask the Associate Deputy Attorney
General how the Justice Department proposes to get around the
problem I have outlined?
Mr. KEUCH. The affirmative defense in the statute provides that
if the U.S. Government publicly reveals the information it would
be a defense. Also as I indicated earlier, there is a litigative history
in the whole area of compromise and classified information which
states if the information were taken clearly from the public record,
you would have a very difficult time meeting your standard of
proof. But you keep in mind, the standard requires the pattern of
activities, the fact the individual knows the information he is dis-
closing will reveal covert agents and that he knows the United
States had made an effort to protect the indentity of covert agents.
I do not frankly think, Mr. Congressman, as you pointed out, the
criminal statute is applied appropriately in the first amendment
area. I think given those facts under a proper set of circumstances,
we could meet the proper standards.
Mr. SENsENBRENNER. I yield back the balance of my time.
Mr. EDWARDS. I think most of the members of the subcommittee
would agree that most of the legislation is certainly necessary and
appropriate. A sticky point which has been suggested in the ques-
tions that have been asked today has to do with 501(c). That section
to my knowledge, is the first time in the history of the country it
has been made a felony to take public information and disclose it-
information which is nonclassified and which you might pick up in
a bar, read in a newspaper, et cetera. Is that correct?
Mr. KEUCH. Again I have to stress while this did not specify the
individual had to have access to classified information, either au-
thorized or unauthorized it requires the information must be of a
type as it applies to a covert agent. That requires there must be
steps taken to protect the information, the individual knows of the
steps being taken, the individual knows that the information he is
disclosing will identify that covert agent. I think the statute is a
long way from public.
Mr. EDWARDS. The information could be something he read in
the newspaper.
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Mr. KEUCH. It would depend then what is done with that infor-
mation. The statute would certainly not reach the individual who
reads in the Washington Post or the New York Times that the
individual was an agent of the CIA then discloses that to his
friends at the local country club or on the Hill that day in his
Department of Justice Office.
It is designed to reach the individual who reveals information
which he knows has not been revealed by the U.S. Government,
which the U.S. Government has taken steps to protect.
Mr. EDWARD. You have not responded to my suggestion that he
might pick up the information in the neighborhood bar or in the
paper. It is not classified information.
Mr. KEUCH. If he just heard a statement in the neighborhood
bar, that Bob Keuch is a CIA agent then if he repeats that infor-
mation, he must know that the U.S. Government is making some
effort to protect it, et cetera.
Mr. EDWARD. So if he goes out and tells somebody, tells his wife,
then he is guilty of a crime?
Mr. KEUCH. If it is a true statement and he gets it under those
conditions--
Mr. EDWARD. I can read, so can you. That is what 501(c), says.
Apparently, it was directed toward one particular newspaper.
Mr. HITZ. That is correct.
Mr. EDWARDS. Are there other publications?
Mr. HITZ. There are several. There is one called Counter Spy.
There is a compendium, a book form called Dirty Work II. There is
the promise of a Dirty Work III.
Mr. EDWARDS. All those will be sent for criminal prosecution.
Ms. LERoY. Who is responsible for the publications you just
named?
Mr. HITZ. I can find that out.
Mr. EDWARDS. We understand they are the same group of people.
Mr. HITZ. I did not know Counter Spy was.
Mr. EDWARDS. Essentially 501(c) is directed at the activity of this
particular group of people--
Mr. HITZ. That lead to the firing on Mr. Kinsman's house.
Mr. DRINAN. Suppose you go in and suppress this ad for Dirty
Work II. Somebody will immediately go in and reproduce a million
copies.
Mr. HITZ. Will they have the requisite intent, the reproducing?
Mr. DRINAN. Yes, he does have it. He did not think we should be
doing this and he wants to expose covert agents and identify them.
He thinks this is outrageous that we should be doing this. I never
heard of Dirty Work II until this morning. I am sure if you pros-
ecute them, everybody in the world will be buying it.
Mr. HITZ. Just the notion, sir, that we have been unhappy about
Dirty Work II has increased their sales.
Mr. DRINAN. Thank you very much, Mr. Chairman for yielding.
Mr. EDWARDS. Mr. Keuch, in your previous testimony you argued
that a mainstream journalist, thought to have intelligence relation-
ships, may fear that any other stories by him, critical of the CIA
may be taken as evidence of intent to impair foreign intelligence
activities.
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Take the case of a reporter from the New York Times or Wash-
ington Post who did not like what was going on in Chile, the
activities of the CIA. He believes in all sincerity, that they have
engaged in criminal activity, break-ins, bribery, et cetera.
Now he better not write that under 501(c).
Mr. KEUCH. I am not so sure I agree with you, Mr. Chairman.
Again, it must be done as part of a pattern of activities which
either under the Senate version or under the House version, re-
sults in the exposure of covert agents, et cetera. If it did not meet
that test, it is not prosecutable. The first test applies across the
board as do the criminal statutes. But again, as I suggested earlier,
that kind of debate, if it is a first article and a first discussion and
there are disclosures, it comes back to Mr. Hitz' statement that it
may not be covered by the statute. Espionage statutes have been on
the books for 20-some years. I have not noticed an effect on the
aggressive reporting by the press on these issues. But here again, it
has to be part of the pattern of activities to meet the remainder of
the statutory standard, I think your questions point up our con-
cern, as I expressed it at the time. I was talking about the intent
formulation presently in the House committees bill. That is, there
must be the intent to impede. We are concerned that if that is the
case, the statute may seem to reach those individuals who have
been critical of the intelligence operations of the Government or
our programs and it may have a chilling effect. That is why I
indicated in my testimony, numerous times before the House and
Senate committees that we prefer the formulation in the Senate
bill.
The claimed intent, is, indeed, to protect our intelligence oper-
ations because they will get us out of the dirty business. There was
an espionage matter where an Army officer revealed a great deal
of highly sensitive information about our missile program because
he wanted to call attention to the Congress and American people
as to how far behind the Russians we are in the missile program.
We will get back again to the fact the individual can write about
operations in Chile. I can go on for paragraphs about the fact we
should not use Government officials in Chile. We should not pump
in money, send arms. I can do it vigorously and effectively and I
have not put one individual's life into jeopardy; and I cannot see
why the public debate cannot be carried out forcefully without
indicating the names of people trying to serve their country in
their way.
Mr. EDWARDS. I yield to my colleague from Ohio.
Mr. SEIBERLING. Take Jack Anderson whose activity has to do
with disclosures. Back in the days of Watergate there were a lot of
disclosures about the United States in Chile, for example. Let us
assume that he, in the course of such exposures, reveals the identi-
ties of covert agents and that he does it with intent to prevent
those kinds of activities as part of his usual pattern of revealing
information.
Is that going to be caught by the Senate bill or the House bill?
Is that not a clear infringement of freedom of the press?
Mr. KEUCH. It gets back to the question of whether because you
disagree with a Government program or action you have a unilat-
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eral right to declassify any document protected by a national secu-
rity concern. There are certainly people who feel that way.
If that is the case, as I indicated earlier, I think we can wrap up
our intelligence operations and get out. We will not be able to
continue intelligence programs if everybody who disagrees with
them, has a right to declassify them.
Mr. SEIBERLING. Are you saying when intelligence programs con-
flict with the Constitution the Constitution has to give way?
Mr. Hrrz. That is an exception.
Mr. SEIBERLING. You are making an exception to the categorical
language of the first amendment. From what you are saying, Drew
Pearson could not have written some of the articles he wrote about
as to some of the activities in Chile, if these statutes had been on
the books.
Mr. KEUCH. The Supreme Court has refused to apply the first
amendment as an absolute.
Mr. HYDE. Does that mean you cannot pray in school?
Mr. KEUCH. I am saying there are types of public speech and
public expression that can be reached by criminal laws without
doing violation to the first amendment.
Mr. SEIBERLING. You have to make a very strong and compelling
case and tie it in with an overriding national need and show there
is no other way of accomplishing the objective.
Mr. KEUCH. In my sincere judgment, the disclosure of covert
agents is not necessary for vigorous public debate on these issues.
Mr. SEIBERLING. Let me ask you one other thing. I am putting
aside the fellow who gets his information because he has been with
a Federal agency. That is a pretty clear case. But say a private
individual with no access to Government information figures out
certain people are foreign agents and he publishes that and does so
with the intent to stop their activity.
Now, if he can do it why cannot any foreign government with
much better intelligence presumably than private individuals do
the same thing? If so, what objective have you accomplished other
than keeping the public in certain countries from being involved in
the act?
Mr. HITZ. We agreed that those professional intelligence officers
involved know they run the risk of being identified by other gov-
ernments and they make every effort to avoid detection. What they
did not sign up for is a situation where citizens in their own
country, in effect make the moral judgment themselves that the
activity in which this intelligence officer is engaged, is improp-
er--
Mr. SEIBERLING. My question is not what they signed up for, but
if a foreign government can do it, then why cannot they do a lot
more than the individual who decides to publish this information?
Mr. KEUCH. Inherent in this concept that is in effect we have a
hostile force that can get access to our secrets, then we will say, we
will take no steps to protect that information because we accept
the fact they are very good, and efficient and are working at it. I
cannot tell you that we can prevent an aggressive intelligence
service from coming up with the same information we have, but
they have problems. There is a certain time delay built in.
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I am pleased that you find an exception to the categorical lan-
guge of the first amendment for those of us who have gotten this
information under a position of trust. I think the damage is the
same. The recognition of the different statutes is based on the
different penalties involved.
Mr. HITZ. We are in effect saying, Mr. Seiberling, that this
activity should be made unlawful. It meets the standards you have
set for it in your question. It is free speech that goes beyond a
certain limit.
Mr. SEIBERLING. I am not saying there are not legitimate--
Mr. HITZ. Each one endangers the lives of those engaged in the
activity.
Mr. SEIBERLING. I do not accept the doctrine of bureaucratic
infallability. There are times when it is in the public interest to
disclose things that have been classified and there are times when
the actions of covert agents, even if authorized from on high, are so
reprehensible, that they ought to be disclosed.
Mr. HITZ. The action is, but perhaps not the identities.
Mr. SEIBERLING. Perhaps sometimes the only way you can blow
the whistle is to disclose the identities. Maybe you have to have
people willing to take the risk of prosecution when they think
something is so bad they will have to disclose it. Like the revela-
tion of the Pentagon Papers. It may have been a crime, but it is
certainly in the public interest as viewed by a lot of people.
So I think maybe what we will have to do is figure out how to
draw that line in a way that provides what is required.
Mr. EDWARDS. Mr. Hyde.
Mr. HYDE. I would point out to my departing colleague that
section 502(d) contains the whistle-blowing provisions. While one
would not get the publicity attendant with public disclosure on
certain items, one could at least have the spiritual relief by going
to the Intelligence Committee of either house to blow the whistle.
Mr. SEIBERLING. In the present Congress that might be a solu-
tion, but there have been times in the past when I did not have a
very high regard for some of the committees in Congress and I do
not think the public had either, as with some of the ways things in
Vietnam were carried on that were subsequently disclosed as being
wrong and yet the committees did not take many pains to find out
what was going on or did not want to know. So I do not think a
disclosure to a committee is necessarily an acceptable alternative.
Mr. HYDE. Perfection is always elusive.
Let me ask very quickly, what about aiding and abetting and
conspiracies? Are they covered by the bill at all?
Mr. KEUCH. Those sections only apply, again if it is during a
portion of a pattern of activity. That would mean that the individu-
al who, for example, giving information to our counsel, she would
not be prosecutable as an aider or abettor unless that act was part
of the same pattern of activities. So, generally, they are taken out
of the statute but put back in for the cases in which the pattern, is
established.
Mr. HYDE. They are useful for establishing a pattern?
Mr. KEUCH. Yes.
Mr. HYDE. I was thinking of the poor guy who is identified
wrongfully as the CIA station chief in Bangladesh and his life and
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family are endangered. He has absolutely no remedy. When you
are rightly or wrongly identified and it injures your life and your
family, that ought to be a tort. If I am named as a CIA agent, I
should have a civil action against the discloser. He has put my life
in jeopardy as well as the lives of my family. There ought to be
some substantial liquidated damages due and, where willful and
wanton conduct is found, he should go to jail. That is one way to
get at such conduct. Maybe it would have a grave therapeutic
effect.
Mr. KEUCH. We believe they have a civil remedy. There are torts
for interference with constitutional rights, et cetera. Some consid-
eration was given to the possibility of drafting civil sanction in
addition to the criminal sanctions. There are problems. One is
jurisdiction. While criminal statutes may have penalties that would
apply, even though they remain outside the United States, that
would be very difficult, if not impossible, under the civil rules. The
availability of civilian penalties, in behalf of government is unique
in this area.
Mr. HYDE. If this were considered libel--
Mr. KEUCH. The individual has a remedy.
Mr. HYDE. What is his remedy?
Mr. KEUCH. The question is if he is erroneously identified. It
would be our view, that there would be civil action called for.
Mr. HYDE. I am confused as to what the remedy is.
Mr. KEUCH. I think you could assume, as Mr. Hitz' statement
pointed out, we have record of where individuals have been
harmed because of identification of agents. We have had homes
fired on.
Mr. HYDE. You would not advise suing for slander or libel?
Mr. KEUCH. No, for a deprivation of constitutional rights.
Mr. HYDE. Thank you, I have no further questions.
Mr. EDWARDS. Mr. Drinan.
Mr. DRINAN. We are having Congressman Les Aspin testify here
tomorrow. Mr. Aspin offered an amendment in the Intelligence
Committee which I understand was the original position of the
Justice Department. The Aspin amendment, which did not carry,
said in effect there should be a defense on the part of the person
accused of this crime. The defense would be that the disclosure was
not based on classified information. Is that the position of the
Justice Department?
Mr. KEUCH. As to the category of individual in 501(c), that is
those individuals in the public sector who did not have access to
classified information.
Mr. DRINAN. Your position changed.
Mr. KEUCH. It became clear during the course of the hearings
both before the House and the Senate, that we did not have the
votes for the administration bill, the Department of Justice bill. At
that time there was a meeting between the various staffs, the
agency-the CIA-and ourselves and we came up with the concept
of activities as a different way than the one we supported to meet
the problems.
Mr. DRINAN. If reason prevailed and the Les Aspin amendment
passed, would you still accept the bill?
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Mr. KEUCH. I would have to answer the question yes, since that
was our original position.
Mr. EDWARDS. The subcommittee will recess for 10 minutes.
[Brief recess.]
Mr. HrTZ. May I be heard on the last question raised by Con-
gressman Drinan.
Mr. EDWARDS. Yes.
Mr. HrTZ. If the Aspin amendment were adopted, the intelligence
community would lose interest in this bill. It would render 501(c)
practically nugatory in terms of that which we want to achieve.
The Aspin amendment is strongly opposed by the CIA and the
intelligence community.
Mr. DRINAN. I thank you for your observation and I am sure
those people who are publishing this newspaper are causing you a
great deal of anguish. But our obligation is to look at this matter
very seriously to see whether or not after 200 years of American
history, that we can take this giant step which has real constitu-
tional problems-this step which you as a lawyer understand just
because four or five people who are taking unclassified informa-
tion. However I think from your testimony there may be some real
intelligence leaks they might be privy to. Is that correct?
Mr. HrTZ. One ventures perilously into the area of defining what
precise sources might be available to these publications, but clearly
the Covert Action Information Bulletin and some of the recent
publications spoken of here speak of our sources in Rome and
Athens. They are not specific as to the cities, but they refer to this.
Mr. EDWARDS. Perhaps you should get your house in order vis-a-
vis leaks that may be coming from your own shop.
Mr. HrTZ. That is why I indicated there is something in the bill
to do something about cover.
Mr. EDWARDS. In addition to that, I have a sense of deja vu about
the entire issue, because the intelligence agencies have been
coming to this committee and other committees with regard to the
same complaints about the Freedom of Information Act-that the
Freedom of Information Act is making it impossible to have com-
munications with other foreign governments and the FBI and CIA
cannot get informants anymore.
Mr. HITZ. We feel strongly about that issue also.
Mr. EDWARDS. So we might have an amendment to this bill to do
away with the Freedom of Information Act too.
Mr. HrTZ. Even that goes beyond our optimism as to what can be
achieved in the few days remaining in this Congress.
Mr. EDWARDS. Mr. Drinan.
Mr. DRINAN. The Senate bill has an exception permitting an
individual to identify himself and the House bill does not. It is my
understanding the administration in the last month objected to
this exclusion.
Mr. KEUCH. We have no objection to exclusion. However we feel
this is a protection in the House bill. It is unlikely that an individ-
ual who reveals himself does so in a pattern of activities. Even in
those circumstances, one of the hypotheticals given to me was the
ex agent who, by revealing his own identity, under most egregious
circumstances, could affect an ongoing investigation. As an argu-
ment as to why that should not be in the bill, my answer was that
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kind of revelation, if it met the standard of 18 U.S.C. 793 could be
covered by other sections of the law. We have no objection to that
kind of exclusion. I cannot speak for the agency.
Mr. HITZ. We have--
Mr. DRINAN. I would like to propose that amendment be
inserted.
It is my understanding from reading the bill that FBI agents in
the United States are not covered, only those abroad. If that is so I
will also make an amendment to make certain that people investi-
gating Communists at Harvard, employed by the FBI, are not
covered by this bill. What is your understanding?
Mr. KEUCH. Direct employees of the agency would have to have
some overseas assignment. It would not have to be an established
post overseas, but during the past 5 years, have had a post over-
seas. As you note, the covert agent has a number of subdefinitions.
Those persons who are CIA assets would be covered as are the
agents who are assets to the CIA or whatever. But as to "agent,"
my concept is the same as yours. They have to have had some
overseas assignment.
Mr. DRINAN. The informants that the FBI rents in New York
City, they would be under the bill?
Mr. KEUCH. They would, because the definition of covert agent,
in part 4, title 6 on page 13-of the Xerox I have anyway-in
defining the covert agents part says: "an officer or employee of an
intelligence agency, or a member of the Armed Forces assigned to
duty with an intelligence agency-first whose identity as such an
officer, employee, or member is classified information, and second
who is serving outside the United States or has within the last 5
years served outside the United States," then there is an and/or,
"who is at the time of the disclosure acting as an agent of, or
informant to, the foreign counterintelligence or foreign counterter-
rorism components of the Federal Bureau of Investigation," then C,
of course would be specifically what is being referred to: "An
individual, other than a United States citizen, whose past or pres-
ent intelligence relationship to the United States is classified and
who is a present or former agent of, or a present or former inform-
ant or source of operational assistance to, an intelligence agency."
The only exclusion would be a U.S. citizen who has not served
outside the United States but is an informant or agent of the FBI.
Mr. DRINAN. I would ask counsel to prepare an amendment to
exclude that. This is an invention of the 11th hour and I know of
no justification for the phrases beginning on page 13. I yield back
the balance of my time.
Mr. KEUCH. So the record is clear, it would not cover domestic
security investigations. It would only cover the foreign counterin-
telligence investigations of the FBI.
Mr. EDWARDS. That would include the Communist Party or any
informants who might possibly have an overseas connection in
their particular division of the FBI?
Mr. KEUCH. It would include any individual meeting the criteria
of the FBI's guidelines.
Ms. LERoY. It would also apply to persons involved in counterter-
rorist activities.
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Mr. KEUCH. It is my recollection, that terrorism activities are
definable in terms that require something more than domestic acts
of terrorism. It would have to be something that is part of an
international pattern. I will check the guidelines and answer in
detail.
Mr. DRINAN. I would ask the counsel to prepare a memorandum
of what is covered on page 13, covert agents and informants of the
FBI, stateside. Thank you very much.
Mr. EDWARDS. Mr. Seiberling.
Mr. SEIBERLING. Have we gotten into the counsel giving us a
memo on classified information as defined on page 12. This gets
into the initial thrust of our questions. The bill does not require
that the term "classified information" mean information that is
properly classified. It merely has to be designated and marked.
Mr. EDWARD. Without objection, counsel is so ordered. Mr. Sei-
berling, any questions?
Mr. SEIBERLING. I think perhaps we ought to get on with the
next witness.
Mr. EDWARD. Counsel?
Ms. LERoY. Both witnesses have emphasized in their testimony
the exposure of agents themselves but obviously the bill goes far
beyond just protecting agents. I wonder about the example you
gave, Mr. Keuch, referring to CIA activities in Chile, where you
thought a thorough investigative analysis of those activities could
be published in the press without revealing names of agents. Would
your answer be the same in terms of sources of operational assist-
ance? There were allegations that the CIA was funneling millions
of dollars into various newspapers into Chile and into political
campaigns and to political candidates. I assume any article describ-
ing those allegations would make it easy to find out who those
people or organizations were. Do they fall into the category of
sources of operational assistance?
Mr. KEUCH. They may. I would have to go back and read the
statute again. I would also answer you that I believe the argument
could well have been had without running afoul of the statute.
Even putting aside the pattern of activities and attempts to expose,
et cetera.
It may well be that the allegations that the agency is using
newspapers providing the satute is specific, that is that the individ-
ual reveals information that he knows. I would like to check that
but I do not think it meets the full definition in the statute.
However, in those instances where there is some doubt, as I
indicated, where there is a need for an aggressive public debate
and if there are those kinds of situations, the specific identities of
covert agents is necessary. I believe there are ways for individuals
to achieve that intention. I have indicated that they can have that
debate as far as possible.
Ms. LERoY. Well, how would you write the story that was in the
newspapers not too long ago about the CIA giving money to King
Hussein without indicating who he was?
Mr. KEUCH. If your objection is that the CIA under any circum-
stances, set of circumstances provides money to a foreign leader,
and therefore in some way pollutes the political processes of that
country, you can certainly make that argument. You would have to
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make that disclosure in the context of a concerted effort or pattern
of activities that has had the purpose or the intent or the result of
exposing individuals, et cetera.
I would think that a newspaper or a reporter who either pub-
lishes or who writes and presents that article has not met those
statutory standards. But again, let's assume it is an individual that
has, it is an individual who has engaged in such a pattern; he feels
that was wrong and he feels a need to have that debated.
Again I guess I would argue that the balance can be drawn that
that information can be protected but, at the same time, the con-
cept of whether or not we should be doing it can be subject to
public debate. The fact that the individual has information and in
fact we did provide money to King Hussein or any other govern-
ment leader can be given to a number of both executive and
legislative branch oversight committees.
Ms. LERoY. In your prepared testimony before this subcommit-
tee, Mr. Keuch, you commented favorably on the Intelligence Com-
mittee report which makes it clear that the disclosure of the name
of an agent or a source, if integral to a serious discussion of the
nature of American involvement in a certain country or area or a
question of intelligence policy, would not be the target of the bill's
prohibition. And, a moment ago, you seemed to reiterate that
position.
My question is, who decides and on what basis, whether an
article or a publication is engaged in serious discussion of a ques-
tion of intelligence policy.
Mr. KEUCH. It is not that. It is the fact that-what I think I was
trying to indicate was that we felt that the formulation of the need
for a pattern of activities, the other requirements we have been
discussing here this afternoon--
Ms. LERoY. Can I interrupt you at that point?
Mr. KEUCH. Certainly.
Ms. LERoY. But it is my understanding that the pattern of activi-
ty that you are talking about doesn't itself have to be the disclo-
sure of identities or sources or names; in fact, it could be a series of
articles that were critical of the foreign intelligence activities of
this country.
Mr. KEUCH. No, I do not think that is correct. I think it has to
be-what I indicated was actual disclosure had not been made as a
part or pattern of that effort. But both the Senate and House bill,
the Senate requires a pattern of activities intended to expose and
identify; the House language provides in the course of an effort to
identify and expose covert agents. So it is more than just criticism.
It is more than just an analysis of alleged or known intelligence
operations. It is indeed a pattern that has as its purpose or intent
such identification.
I tried to indicate that it would not have to be proved that 20
other agents were identified to show this particular revelation met
the statutory standard. But that type of effort would have to be
made.
I am concerned and the Department is concerned, I have indicat-
ed in my testimony before, that with the present formulation of the
intent requirement in the House bill that there is a concern that
you are required to look at an individual's past writings and past
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expressions of view. That causes us constitutional concern. We
have not been very shy about saying that. As far as that is con-
cerned, I have certainly not retreated from that position.
Ms. LERoY. Is there not a similar provision in the Senate bill
about intent to impair and impede?
Mr. KEUCH. No. The provision in the Senate bill is that the
individual makes the revelation with reason to believe it could
impair and impede. We believe that is an objective rather than a
subjective standard.
Ms. LERoY. Are you saying that you like that provision better
because it improves your prosecutorial abilities or are you saying
that in fact it answers some of the constitutional questions that
you raised earlier?
Mr. KEUCH. Both.
Ms. LERoY. How?
Mr. KEUCH. I think I tried to outline why we think it improves
our prosecutorial abilities.
Congressman Drinan's questions pointed out that the individual
could well claim that he has absolutely no evil motive to impair or
impede your intelligence operations. He is operating for the best of
all reasons. He is going to improve the efficiency of our intelligence
operations by revealing the series of covert agents so we will stop
doing certain of the things he objects to or she objects to and
therefore we will have a leaner, cleaner, better intelligence oper-
ation.
It is the same type of example I use of the Army officer who
revealed highly classified missile information because he wanted
the Congress of the United States and the public to know how far
behind we were in the missile race. His overall objective and
motive was we would then catch up, expend funds to do a better
job, and in fact catch up with the Soviet Union.
So clearly, from a prosecutorial point of view we have problems
with the subjective intent. That is clear. Even the espionage stat-
utes themselves provide an individual in certain more serious cate-
gories must act with reason-I am sorry-with the intent to aid a
foreign government or harm the United States or with reason to
believe that the compromise or the transmittal that he makes
under the espionage statutes will aid a foreign country or harm the
United States.
We believe the objective standard obviously is clearer from a
proof point of view. Also, I pointed out there is a problem of
graymail that is more inherent in the subjective standard than in
the objective standard. The reason for this is a little bit circular.
It comes back to the fact that the individual wants to prove that
his motive was pure and proper, that he did not have an improper
intent. To do that he has to show a great deal about our intelli-
gence operations not only in the country involved but in a number
of countries. He may want to get into how efficient they are, how
much information we get, how many agents we actually have, et
cetera.
We believe with the subjective formulation alone in the statute,
there is a very good chance those graymail efforts will succeed.
Those are the prosecutive points of view.
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On the constitutional point of view, the statute also provides that
the active disclosure cannot be taken or accepted as proof of the
intent to impair or impede. As t,, what you are left with, you have
to go into the person's state of mind, what his motive was when he
made the disclosure. I see no other way of doing that, but to go
back and find out what he had been saying about intelligence
operations, about the U.S. Government, about the executive
branch, about America's place in the world prior to the time he
makes the disclosure.
To our way of thinking, that raises serious constitutional ques-
tions. It would certainly be clear if the reporter or the journalist or
the magazine--
Ms. LERoY. How does what you have just said respond to the
concern you had before the House and Senate committees about
the problem of creating a new category of political "born classified"
information?
Mr. KEUCH. That went to the fact of whether or not the individu-
al had reason to believe or knew of the category or type of informa-
tion he was disclosing. That was applying a negligence standard to
a very objective fact. That is the individual's knowledge of the
information he was revealing.
Ms. LERoY. Well, I find that a little bit inconsistent with what
you said before the Senate Intelligence Committee where you said
a speaker's statements about covert activities could be punished
even though they are not based on access to classified information,
do not use insider methodology acquired by the speaker in Govern-
ment service and are not imbued with any special authority from
former Government service.
Mr. KEUCH. That is right. What we were talking about there was
formulations in various proposals which would have permitted
criminal sanctions to be posed against an individual who had
reason to believe that the information he had revealed covert
identities.
The present bills before this committee I am testifying about now
say that the individual knew that the information would reveal a
covert agent plus some other things. And I realize that the phrase
"reason to believe" is the some in both cases, but in one case you
are looking at the fact, the knowledge of type of information being
compromised. In this case you are using reason to believe to apply
to the individual's intended motives. You are applying an objective
test.
You go back to the concept that the individual is presumed to
know the natural consequences of his act. If he acts in a way that a
reasonable individual would believe would impair and impede our
intelligence operations, we believe that should be reached.
Mr. EDWARDS. Counsel?
Ms. OWEN. I want to get any comments Mr. Hitz might have on
this same issue. Which language would pose more problems from
your point of view: the "reason to believe" that the activities would
impair our foreign intellience efforts, or the intent, specific intent
to impede those efforts?
Mr. Hrrz. Well, with respect to these two different formulations,
I did not read but supplied for the record in my testimony what
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was a preference in essence for the Senate formulation of that
area. I would concur with Mr. Keuch on that particular problem.
I think the agency rightly has taken a back seat on that particu-
lar matter since it is going to be the Department of Justice, as was
suggested earlier, that will bear the burden of bringing the pros-
ecutions in this context.
Ms. OWEN. So you feel the Senate language might have a greater
deterrent effect, which would make it more acceptable to your
Agency?
Mr. Hrrz. That would be our conclusion, yes.
Mr. EDWARDS. Mr. Keuch, are there people over in the Justice
Department that disagree with your change of views on this
subject?
Mr. KEUCH. First, I hope it is not seen as a major change of
views. Again I would like to say that we drafted a bill which we
felt met constitutional and other practical concerns. It became
clear during the course of the hearings in both the House and
Senate that that version did not have popular support and it was
then that the Department took the lead with the CIA's help and
with the help of the staffs of both committees in coming up with
another approach to meet constitutional concerns.
I am sure lawyers disagree with everything. I would have to say
yes.
Mr. EDWARDS. Are there people who share our concern about
making it a crime to disclose nonclassified, publicly available infor-
mation, about that particular point?
Mr. KEUCH. Congressman, I know of no such and know of no
great internal debate over this change, but again, based only on
the presumption that lawyers can disagree about anything, I am
sure there are.
Mr. EDWARDS. This is a serious matter. How high did this discus-
sion go; all the way to the Attorney General?
Mr. KEUCH. The initial formulation did go to the Attorney Gen-
eral. When the matter was before the Senate committee and the
new formulation, if that was-I term it as a change, the new
attempt to meet the same constitutional and legal concerns went to
the Deputy Attorney General. And the Deputy Attorney General
wrote a letter to the Senate committee, which I can make available
for the record, in which he expressed two views, one, the formula-
tion they were presenting to the Senate committee and asking
support on, alleviated the constitutional and practical concerns
expressed by the Department, and also supported the view. I be-
lieve it was given consideration at the highest levels of the Depart-
ment.
Mr. EDWARDS. Thank you.
? Mr. DRINAN. You say that the original formulation you discov-
ered did not have widespread support. You mean the intelligence
agencies were not satisfied with it?
Mr. KEUCH. No, I was talking about the staffs and the members
of the subcommittee, sir.
Mr. DRINAN. They are representing the intellience communities.
Mr. KEUCH. That is not my, certainly--
Mr. HITZ. We like to think that was the case but--
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Mr. DRINAN. If you went back to our original proposition, Mr.
Floyd Abrams would have no problems, I would have no problem,
and it would become law. Where did you find lack of wide support?
Mr. KEUCH. As I indicated, in the staffs and members of the
subcommittees.
Mr. DRINAN. You mean in the intelligence community?
Mr. KEUCH. No, Mr. Congressman, I do not mean that.
Mr. EDWARDS. May I suggest, the answer that is probably true is
that the Jamaican incident took place.
Mr. KEUCH. I know that certainly occurred before at least one of
the Senate appearances. There was an executive-that was certain-
ly not the reason for our change, Mr. Chairman.
Mr. EDWARDS. I meant that the subject came up about this sort
of change in the bill after the Jamaican incident took place, may I
suggest? That part of the bill was not a part of any suggested piece
of legislation until the thing happened in Jamaica on July 4, isn't
that correct?
Mr. KEUCH. Chronologically, as far as the idea of the new ap-
proach to meet our constitutional and proper concerns came up, it
is certainly accurate it came up after the Jamaican incident, but it
also came up after both the hearings on the House side and Senate
side when it became clear to us and to the agency that the original
administration formulation simply was not going to be the formula-
tion.
Mr. EDWARDS. I understand that. But I really think the record
ought to be clear and I think you both would agree with me that
had the Jamaican incident not taken place we probably would not
be discussing 501(c) or whatever it is; it was the triggering mecha-
nism to get the amendment into the bill, isn't that correct?
Mr. KEUCH. I do not think that is correct, sir. I think the concept
of-even the original bills tried to reach two categories of potential
defendants, those that had had access to classified information or
had had access to identities about agents and those who had not.
There were discussions, at least five or six drafts, I remember
trying to keep straight in my testimony before the House, and at
least four or five drafts before the Senate. Many of those drafts had
some provisions that had the comparable reach as 501(c) here.
Again, chronologically it was true, the attempt by the Depart-
ment of Justice and CIA and the staffs of the committee to come
up with a position we could all support and agree on to meet the
practical and constitutional questions may have chronologically
occurred after the Jamaican incident, but it certainly was not the
triggering event.
Mr. EDWARDS. My last question is-once again I think we ought
to make it clear-the New York Times case that I mentioned
before, the New York Times investigative reporter or two or three
of them are in a South American country; they are assigned there.
They feel, after a certain amount of investigation, that there are a
number of American CIA agents there who are indulging in crimi-
nal activities, bribery, black bag job, perhaps even poison, planting
poison in people's cigars. They feel that as part of their job as
American reporters, they should write some stories about this.
Now, if any name is mentioned, then it would be a crime, is that
correct?
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Mr. KEUCH. No, sir, I do not think so. If your question is if they
meet the other statutory definitions, if we were able to prove that
the New York Times or whatever publication it is, had been en-
gaged in a pattern of activities or an effort intended to expose and
reveal covert agents--
Mr. EDWARDS. Yes, covert agents engaging in criminal activity in
Chile.
Mr. KEUCH. But in your example, using an article about our
relations in Chile-that, standing alone, I do not think would meet
the necessary standards of this bill. I believe it meets 793(d) and
the fact that those statutes have been on the book for 20-some
years, without too much effect on our aggressive press and very
rightfully so, I think stands as very good testimony for the fact
that these statutes can be applied and will be applied in a manner
consistent with our constitutinal guarantees.
But under your example, would it meet this legislation? I think
the answer has to be no because you have not given me an example
of a series of articles or series of activities by whatever publication
is doing that exposure that would satisfy the statutory standard of
a pattern of activities or part of an effort to reveal and expose
covert agents.
Mr. HITZ. With the intent to impair or impede foreign intelli-
gence activities, they might be wanting to expose what they take to
be alleged criminal activity.
Ms. LERoY. If that same article that the chairman is referring to
were published, instead of in the New York Times, in the Covert
Action Information Bulletin, would you say you would be able to
prosecute under this bill in that situation?
Mr. KEUCH. If you can meet the statutory standards. Certainly
you could not apply the statute retroactively to prosecute what
took place prior to the legislation. There would be nothing wrong
with using proof of the announced and avowed intent of that
publication and others to do many of the things that they claim
they are trying to do.
Ms. LERoY. But the impact on the public and on the foreign
intelligence activities of this country are the same, aren't they,
regardless of the intent with which the material is published?
Mr. KEUCH. No, I am assuming from your question you were
talking about a publication that has presumably or hypothetically
a history of engaging in this kind of pattern. I thought that was
the distinction. If you mean does it matter what the name of the
publication is, the answer is no. In my view the first amendment
covers everything from the New York Times to any public expres-
sion. It does not have exceptions one way or the other. But the
point is, I thought your question presumed the fact that one publi-
cation met the statutory standard and the other did not. And that
is the question, do they meet the statutory standard?
Mr. EDWARDS. Mr. Seiberling?
Mr. SEIBERLING. I have read Mr. Abrams' prepared statement,
and you probably have heard his views before, but I would like to
get your reaction.
He says, "there is nothing wrong with republishing what people
already know-nothing wrong and nothing that in my view may be
made illegal, even if it is part of an effort to identify and expose
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covert agents." No legislation in this area can, I believe, be consti-
tutional unless it clearly exempts from its scope already published
information-regardless of why a second person republishes it.
I wonder if you would comment on that.
Mr. KEUCH. But insofar as the information has been revealed by
the U.S. Government, there is that protection in the statute.
Mr. SEIBERLING. Suppose it was not-that isn't his point. His
point is that if the first publication was done with the intent to
impede and all the other things which would make it a crime;
under this bill, then some other newspaper republishes it, the bill
would make the second publication also a crime, is that correct?
Mr. KEUCH. Well, I think, the one situation, one answer is that
the U.S. Government feeling-Mr. Abrams goes on in his testimony
to use the Powers case as an example.
Mr. SEIBERLING. Yes.
Mr. KEUCH. He goes on to point out that most of the revelations
made would not meet the statutory standards here, that is in the
pattern of activity to expose and disclose, the fact that the individ-
ual knew the information he was revealing would identify a covert
agent, et cetera. I simply think it would not reach republication
except when it met those statutory standards.
Mr. SEIBERLING. Let's take the situation where this newspaper,
whose name slips me at the moment, publishes the names of var-
ious CIA agents and does so and violates this bill. Then along
comes the New York Times and republishes that information. Is
the New York Times equally in violation?
Mr. KEUCH. Again it depends whether they meet the remainder
of the statutory standards.
Mr. SEIBERLING. Suppose they agree with the ideas of the origi-
nal publisher?
Mr. KEUCH. That is not enough. They have to have engaged in a
pattern of activities with an effort to expose or reveal with intent
to impair and impede our intelligence activities.
Mr. SEIBERLING. If they agree with the attitude of the publisher
of this Covert Action and if they republish everything that Covert
Action publishes that reveals names, that is a pattern of activities,
that also has the necessary intent.
Mr. KEUCH. I do not think one republication is a pattern of
activities.
Mr. SEIBERLING. Suppose it isn't one republication, they repeated-
ly publish?
Mr. KEUCH. If you were to ask me if they were to satisfy the
statutory standards are they engaging in a crime, my answer
would be "Yes." My answer to Congressman Drinan is that I
believe the statute and the law applies to everybody equally.
Mr. SEIBERLING. Once it is already published, what difference
does it make whether it is republished. What public objective is
achieved by prosecuting the second publication, even if it is done
with evil intent?.
Mr. KEUCH. Because it is obvious that the more disclosure you
make of that type of information, the greater harm is revealed. Of
course there would be an element, too, in any criminal statute and,
as Mr. Hyde pointed out, perhaps perfection is impossible to
achieve, you do have an element of prosecutorial discretion.
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Again, since we have had 20-some years of statutes which had
this comparable coverage, I think it is fairly good testimony of the
way these matters are handled, very carefully in the first amend-
ment area and very correctly so.
Mr. SEIBERLING. I think that clarifies your position.
Mr. EDWARD. I guess I do have one more question.
You have evidence to the effect of the damage that this has done
to the CIA. You have mentioned that although in Jamaica, Greece,
and so forth. Adding the FBI is right out of the blue. We have had
no testimony on it.
Does the Department of Justice have a number of instances that
would make this amendment necessary? We have had oversight
over the FBI for years and years. This subject never came up
before.
Mr. KEUCH. I will ask the FBI to offer that. I will be very candid.
As I indicated in response to an earlier question, I believe that the
support for the inclusion of the FBI was based on a logical consi-
tency rather than a past pattern. But I will ask the FBI to provide
that information.
Mr. EDWARDS. It is an entirely different situation.
Mr. KEUCH. It may well be.
Mr. EDWARDS. The CIA people are overseas, perhaps in danger,
but the thousands of FBI people being covered by this bill, infor-
mants connected with espionage or something, would not necessar-
ily at all be under the same amount of danger.
Mr. KEUCH. Again, I do not think that the number is that high. I
do not know. I would ask the FBI to provide you that background
information. There may well be a blackboard, We may well not be
writting on a clean slate.
Mr. EDWARDS. Unless there are further questions, we thank the
witnesses very much. We will recess for about 15 minutes to vote
and then we will have the pleasure of Mr. Abrams.
Mr. EDWARD. The subcommittee will come to order.
Our next witness is Mr. Floyd Abrams, a partner in the firm of
Cahill, Gordon & Reindel. Mr. Abrams is a well-known expert in
the area of first amendment law. He teaches at Yale Law School,
and he has also litigated a number of cases in which the right of
free expression and the demands of national security have been in
conflict. He is also chairman of the Committee on Freedom of
Expression of the Litigation Section of the American Bar Associ-
ation.
Mr. Abrams, we are very pleased to have you with us today.
I recognize my colleague from Massachusetts.
Mr. DRINAN. Thank you, Mr. Chairman. I echo that introduction.
I, too, welcome Mr. Abrams.
Mr. EDWARDS. You may proceed.
Mr. ABRAMS. Mr. Chairman, it is the end of a long day, one in
which you have had witnesses doing some dazzling legal footwork. I
will truncate my statement.
Mr. EDWARDS. It is an excellent statement; it will be included in
the record.
[The information follows:]
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STATEMENT OF FLOYD ABRAMS
Mr. Chairman and Members of the Committee: I am honored by your invitation to
appear today and to testify with respect to H.R. 5615, S. 2216 and related legislation.
I wish to emphasize, at the outset, that I appear and speak on my own behalf today
and not for any of the clients which I have sometimes represented. That being said,
I think it is useful for me to advise the Committee at the outset as to the personal
framework within which I approach any review of these proposals.
My own view is that the naming or listing of undercover intelligence officers,
agents, informants and sources by any of their colleagues is an outrage; and that
those who have engaged in such activities have disgraced themselves and disserved
both their colleagues and their country. I also appear as one who believes that
covert intelligence operations, within proper bounds, constitute one useful and
significant function of any nation's intelligence service. Without covert intelligence
operations, we would lose much of our ability to deter aggression before it occurs.
I appear, as well, however, as one who believes, as I am sure every member of the
Committee believes, that this Committee has a special role to play in assuring that,
before legislation is adopted, every step is taken and every effort made to conform
to constitutional requirements. And that, more specifically, it is essential to draft
narrow and not broad legislation-legislation which, in the course of seeking to
protect the identities of covert agents, does not prohibit the exposure of wrongful
CIA conduct, if it occurs, and does not, as well, make criminal the disclosure of
material already disclosed.
I have no doubt that any legislation in this area burdens, at least to some extent,
freedom of expression; it thus raises significant constitutional questions. The burden
is least substantial and a determination of [constitutionality most likely when two
principles are borne in mind. The first is that legislation making criminal disclosure
of information by agents or former agents themselves is far more constitutionally
defensible than is legislation which makes criminal the publication by third parties
of information obtained by them. The second is that the narrower the definition of
the information which may not be disclosed, the people who may not disclose it and
the circumstances under which it may not be disclosed, the more likely it is that
such a statute containing such a definition would be held constitutional. Put a bit
more concretely, I believe that narrowly drafted legislation barring disclosure of
certain information in this area may-and I believe, should be adopted-as regards
disclosures by former CIA employees or officials themselves; is constitutional, but
that such legislation should not be adopted as regards such statements by third
parties who have learned the information. In any event, and if some legislation
should be adopted barring what I will call third party disclosure, the language must
be-in the language of the Supreme Court-"precisely drawn",' certainly no more
expansively so than necessary to further the State's interest. . " 2] With those
principles (which I will attempt to flesh out during my testimony) in mind, I will
turn to H.R. 5615, as reported by the House Intelligence Committee and S. 2216, as
reported by the Senate Intelligence Committee.
I offer you, however, a final and perhaps too personal introductory note. [I have
done my best, in speaking to members of both the House and the Senate and their
staffs, to play as constructive a role as possible. I have suggested language which, on
occasion, has found its way into one bill or another; I have opposed other language
which-again on occasion-has been rejected. When I oppose today any version of
Section 501(c) of H.R. 5615 or S. 2216, it is because I have decided that-in legal
jargon-it "doesn't write"; that there is no way to phrase the ban sought without
violating the First Amendment. I will, in the course of my testimony, suggest that
some language is less offensive to me than other language. And, of course, I hope
that narrower rather than broad language is ultimately adopted, if any is. But my
own bottom line is this: I don't think any language that makes criminal or runs a
serious risk of making criminal disclosures by third parties of what they learn from
others in this area is or can be constitutional. Hence-and for reasons I will set
forth-I believe any version of Section 501(c) cannot pass constitutional muster and
should be rejected by you.]
As the Committee is well aware, both H.R. 5615 and S. 2216 deal with two
categories of persons: the first is those who have or have had "authorized access to
classified information" (Sections 501(a) and 501(b)); the other (Section 501(c)) relates
to all others. I will direct the entirety of my remarks to the second since it is in
dealing with that category of persons that I have concluded Section 501 is particu-
larly threatening.
' Consolidated Edison Co. v. Public Service Commission, No. 79-134 (June 20, 1980) at p. 9.
2Central Hudson Gas & Electric Corp. v. Public Service Commission, No. 79-656 (June 20,
1980) at p. 12.
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I believe Section 501(c), as contained in both H.R. 5615 and S. 2216, is facially
unconstitutional. I believe S. 2216 is phrased less offensively and is likely to inter-
fere less often with protected constitutional rights. But I believe it too cannot pass
muster. [On its face, Section 501(c) of H.R. 5615 would permit the criminal prosecu-
tion of any newspaper, broadcaster, publisher, author, journalist or any other citizen
who in any way (and however innocently) learns the name or other facts concerning
the identity of any agent, informant or the like, that the United States is attempt-
ing to keep secret and publishes or otherwise discloses it. That person and those
entities, under Section 501(c), may be charged with a crime and sentenced to one
year in prison or fined $5,000 so long as a jury finds that such disclosure has been
made in the course of "an effort to identify and expose covert agents" and that the
purpose of the disclosure was "to impair or impede the foreign intelligence oper-
ation activities of the United States."]
The effect of such a statute could be startling, as well as unprecedented. Under
the terms of the statute, when [Francis Gary Powers was captured by the Russians
for over-flying their air space in a U-2, every publication in the United States that
publishes Mr. Powers name would have been subject to criminal prosecution under
the statute until the Executive Branch of the United States "had publicly acknowl-
edged or revealed the intelligence relationship to the United States '] (Section 501(a))
of Powers. This would have been possible, notwithstanding [It is true, the fact that
Powers' name was widely, indeed internationally, known; that the Russians had
themselves revealed Powers' capture; and that, indeed, Powers was then facing
charges in the Soviet Union. It is true that under the statute, all who mentioned
Powers' name could have defended on the ground that they did not "intend to
impair or impede the foreign intelligence activities of the United States". It is also
true that there could be no conviction unless the publication was part of "an effort
to identify and expose covert agents." But there is nothing wrong with republishing
what people already know-nothing wrong and nothing that in my view may be
made illegal, even if it is part of "an effort to identify and expose covert agents". No
legislation in this area can, I believe, be constitutional unless it clearly exempts
from its scope already published information-regardless of why a second person
republishes it.]
[I would go further. Suppose, for a moment, that an investigative journalist comes
to believe that the CIA is or was itself involved in the grossest of improprieties-in,
for example, illegal conduct threatening the very structure of our nation. Suppose
that alleged conduct involved a pattern of spying on Americans in America. Or, to
take the very worst case, complicity in assassinations within the United States. Can
it be that identification of the perpetrators of such crimes may never occur-or, in
fact, be only disclosed at peril of criminal prosecution.]
[At its core, Section 501(c) of HR 5615 flies in the face of a first principle of the
First Amendment; While government may try to keep information secret the disclo-
sure of information which has already become public may not later be criminally
punished. Indeed, as phrased by Chief Justice Burger, The government cannot
restrain publication of whatever information the media acquires-and which they
elect to reveal."] 3
Beyond these objections to Section 501(c), I would urge the Committee to consider
this question: law aside, even constitutional law aside, is it really necessary for first
time in our nation's history to attempt to make criminal the publication of material
which is essentially within the public domain? 4 [Ambassador Corlucci testified,
before the House Select Intelligence Committee that even if all information pub-
lished] were public, there could be and should still be liability; this is absolutely
unprecedented-and terribly dangerous. I would urge upon you that whatever you
may decide to do with respect to the disclosure by CIA agents or the like-and I, for
one, favor such legislation-that you adopt no legislation which bars the rest of the
American people from disclosing fully the activities of our Government of which
they learn, particularly when what they learn could reflect on improper or illegal
conduct by the Committee itself. To do otherwise would not only deprive the public
of information: it would deprive us all of credibility as we deal with each other-
press with public, citizens with each other.
[What I have just said applies, as well, to a significant degree, to Section 501(c) of
S. 2216. Its language is, as I have indicated, less likely to lead to abuse; it requires,
for example, a 'pattern of activities intended to identify and disclose covert agents".
It could be made tighter still if some language were inserted making clear that the
I Houchins v. KQED, Inc., 438 U.S. 1, 13-14 (1978); see also, Smith v. Daily Mail Pub. Co., Inc.,
99 S.Ct. 2267 (1979); Landmark Communications, Inc. v. Virginia, 435 U.S. 829 (1978); Oklahoma
Publishing Co. v. District Court, 430 U.S. 308 (1977); Cox Broadcasting Corp. v. Cohn, 420 U.S.
469 (1975).
4 See, United States v. Heine, 151 F.2d 813 (2d Cir. 1945).
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information disclosed either arose from unauthorized access to classified material
or, at the very least, that the information itself disclosed was classified. Other
changes in language might, as well, limit the risks of such a statute.]
But the more I view the question the more I come out with the same answer.
These are not drafting problems. Your staffs [are of unusually high caliber: the
Department of Justice has done its best; outsiders, myself included, have done ours.
The problem is substantive. If you make illegal, under almost any circumstances,
the publication of material which (a) has already been made public; (b) may disclose
wrongdoing of the most dangerous nature by the Agency itself; and (c) need not
even be classified, our nation starts down a path it has never before tread.]
The offensive, almost obscenely so, nature of some of the material that this
statute seeks to bar leads us to consider the legislation. But we should not, I believe,
yield to the temptation.
Mr. Chairman, I have testified previously as to my views on the drafting of other
aspects of the legislation. Your staff has my comments and I will not repeat them
here. What I will take the liberty of repeating is this: I have no constitutional
difficulties with the imposition of criminal penalties, under certain circumstances,
on individuals who are or have been "in authorized possession or control of informa-
tion" which identifies covert agents. But I cannot accept the notion that criminal
penalties may be imposed on the publication of such material unless it is made by
an individual who is or has been in authorized possession or control of the informa-
tion being disclosed. I know that it is not easy, when the CIA seeks legislation
designed to protect the lives of those who work for us all, for you to conclude that
the legislation goes too far; that there are counter-vailing interests. But the inter-
ests that I would urge upon you are not small ones. Judge Murray Gurfein, in
deciding the Pentagon Papers case in favor or the New York Times, put it this way:
"The security of the Nation is not at the ramparts alone. Security also lies in then
value of our free institution."
That says, as well as any words known to me, what you should bear in mind as
you engage in the difficult task that lies before you.
TESTIMONY OF FLOYD ABRAMS, PARTNER IN THE FIRM OF
CAHILL, GORDON, REINDEL
Mr. ABRAMS. Mr. Chairman, I have no doubt that legislation in
the area of this proposed legislation burdens freedom of expression.
It raises significant constitutional questions. The burden is least
substantial and a determination of constitutionality most likely
when two principles are borne in mind. The first is that legislation
making criminal disclosure of information by agents or former
agents themselves is far more constitutionally defensible than is
legislation which makes criminal the publication by third parties of
information obtained by them. The second is that the narrower the
definition of the information which may not be disclosed, the
people who may not disclose it, and the circumstances under which
it may not be disclosed, the more likely it is that such a statute
containing such a definition would be held constitutional.
Put a bit more concretely, I believe that narrowly drafted legisla-
tion barring disclosure of certain information in this area may-
and I believe, should-be adopted as regards disclosures by former
CIA employees or officials themselves and that it is constitutional.
But that such legislation should not be adopted as regards such
statements by third parties who have learned the information. In
any event, and if some legislation should be adopted barring what I
will call third-party disclosure, the language must be-in the lan-
guage of the Supreme Court-"precisely drawn," certainly no more
expansively so "than necessary to further the State's interest...."
I have done my best, in speaking to members of both the House
and the Senate and their staffs, to play as constructive a role as
possible. I have suggested language which, on occasion, has found
its way into one bill or another; I have opposed other language
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which-again on occasion-has been rejected. When I oppose today
any version of section 501(c) of H.R. 5615 or S. 2216, it is because I
have decided that-in legal jargon-it "doesn't write"; that there is
no way to phrase the ban sought without violating the first amend-
ment. I will, in the course of my testimony, suggest that some
language is less offensive to me than other language. And, of
course, I hope that narrower rather than broad language is ulti-
mately adopted, if any is. But my own bottom line is this: I do not
think any language that makes criminal, or runs a serious risk of
making criminal, disclosures by third parties of what they learn
from others in this area is or can be constitutional. Hence-and for
reasons I will set forth-I believe any version of section 501(c)
cannot pass constitutional muster and should be rejected by you.
On its face, section 501(c) of H.R. 5615 would permit the criminal
prosecution of any newspaper, broadcaster, publisher, author, jour-
nalist, or any other citizen who in any way-and however innocent-
ly-learns the name or other facts concerning the identity of any
agent, informant, or the like, that the United States is attempting
to keep secret and publishes or otherwise discloses it. That person
and those entities, under section 501(c), may be charged with a
crime and sentenced to 1 year in prison or fined $5,000 so long as a
jury finds that such disclosure has been made in the course of "an
effort to identify and expose covert agents" and that the purpose of
the disclosure was "to impair or impede the foreign intelligence
operation activities of the United States."
I have been here today and some of the examples we tend to
recite are repetitive, but I am struck by the inability of the repre-
sentatives of the United States to respond to the simple example I
cited some months ago of a disclosure by a newspaper that Francis
Gary Powers was captured by the Russians for overflying their
airspace in a U-2. Every publication in the United States that
publishes Mr. Powers' name would have been subject to criminal
prosecution under the statute until the executive branch of the
United States "had publicly acknowledged or revealed the intelli-
gence relationship to the United States." That was explicitly ac-
knowledged today by Mr. Keuch. There is no amount of disclosure
which is enough so long as the disclosure does not come from the
United States itself.
It is true, the fact that Powers' name was widely, indeed interna-
tionally, known; that the Russians had themselves revealed
Powers' capture; and that, indeed, Powers was then facing charges
in the Soviet Union. It is true that under the statute, all who
mentioned Powers' name could have defended on the ground that
they did not "intend to impair or impede the foreign intelligence
activities of the United States." It is also true that there could be
no conviction unless the publication was part of "an effort to
identify and expose covert agents." But there is nothing wrong
with republishing what people already know-nothing wrong and
nothing that in my view may be made illegal, even if it is part of
"an effort to identify and expose covert agents." No legislation in
this area can, I believe, be constitutional unless it clearly exempts
from its scope already published information-regardless of why a
second person republishes it. There is a notion the more published,
the more harmful it is. It is a notion that James Madison under-
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stood as to why they were speaking out for freedom of information.
The point is, there is nothing improper about publishing some-
thing, at least in a situation where it is already out to the public
and by hypothesis at least, done whatever harm it is going to do. If
we start down the constitutional road by saying the third, fifth, or
ninth republisher may be jailed because of his improper motive, it
seems to me there is no appropriate end in sight. That is the
proper analogy. I do not think the situation that is likely to devel-
op, at least in the first go-around, that something will be published,
then the New York Times will republish it, and be indicted. What
is more likely, a newspaper will publish something and then some-
one less powerful to defend himself will republish it, and because of
that person's motive there will be a prosecution.
Let me offer a few examples of the kinds of disclosures 501
threatens. Suppose, for a moment, that an investigative journalist
comes to believe that the CIA is or was itself involved in the
grossest of improprieties-in, for example, illegal conduct threaten-
ing the very structure of our Nation. Suppose that alleged conduct
involved a pattern of spying on Americans in America. Or, to take
the very worst case, complicity in assassinations within the United
States. Can it be that identification of the perpetrators of such
crimes may never occur-or, in fact, be only disclosed at peril of
criminal prosecution?
At its core, and I think we all understand, section 501(c) of H.R.
5615 flies in the face of a first principle of the first amendment:
While the Government may try to keep information secret, the
disclosure of information which has already become public may not
later be criminally punished. Indeed, as phrased by Chief Justice
Burger, "The Government cannot restrain publication of whatever
information the media acquires-and which they elect to reveal."
Ambassador Carlucci testified before the House Select Intelli-
gence Committee that even if all information published were
public, so long as one has the intent, one can be charged and
convicted. An effect of that is that the second, fourth, and eighth
persons can be convicted or at least possibly charged for republish-
ing when the first, third, or fifth, because of power or ability to
withstand pressure, is not charged.
What I have just said applies, as well, to a significant degree to
section 501(c) of S. 2216. Its language is, as I have indicated, less
likely to lead to abuse; it requires, for example, a "pattern of
activities intended to identify and disclose covert agents." I think it
fair to say the definition of the people who appeared before me
today differed, depending on the nature of the question being
asked. It could be made tighter still if some language were inserted
making clear that the information disclosed either arose from un-
authorized access to classified material or, at the very least, that
the information itself disclosed was classified. I might add, most
properly classified. Other changes in language might, as well, limit
the risks of such a statute.
I have spent some time in overviewing the problem. These are
not drafting problems. The staffs of both the House and Senate are
of unusually high caliber; the Department of Justice has done its
best; outsiders, myself included, have done ours. The problem is
substantive. If you make illegal, under almost any circumstances,
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the publication of material which (a) has already been made public,
(b) may disclose wrongdoing of the most dangerous nature by the
Agency itself, and (c) need not even be classified, our Nation starts
down a path it has never before tread.
I think I have some understanding as to why the offensive,
almost obscenely so, nature of some of the material that this stat-
ute seeks to bar leads us to consider the legislation. But we should
not, I believe, yield to the temptation.
Mr. EDWARDS. Thank you, Mr. Abrams.
The gentleman from Massachusetts.
Mr. DRINAN. I, too, commend you for your statement. I wonder if
you could expand on one word you use on page 9. You say it is not
constitutional to embargo information already published. You say,
"If you make illegal, under almost any circumstances, the publica-
tion * * *." Give us the hypotheticals. Is there an instance where
this could be constitutional?
Mr. ABRAMS. I do not think so. I think that was my lawyerly
caution overcoming my civil libertarian devotion.
Mr. DRINAN. What about the movement of ships in wartime?
Mr. ABRAMS. I am assuming it is not published.
Mr. DRINAN. But if it were published.
Mr. ABRAMS. It is clear that there is a kind of material which by
its nature is viewed by the law as being so threatening to the
resistance of the state as a whole, that we may even have prior
restraints. The troopship amendment suggests a sailing in war, as
Justice Brennan said. Already at sea in wartime, is the paradigm
of that. I suppose to go a bit further and to contradict what I said a
moment ago, it is constitutional to ban certain portions of the AEC
Act disclosure of certain types of highly restricted information. I
would have to conclude that in those type situations, we are really
talking about one where the safety of the whole country is at stake
by the very nature of the single publications. In that type of
situation you do not talk about patterns of activity. You do not talk
about efforts to impair or impede. In those rare, narrow circum-
stances, we say where was the risk that under some circumstances
may overcome first amendment principles? Those circumstances
are where proof is submitted that it is sure that there would be
enormous harm to the country and its people. No speculations
about it, no conjecture. We have not had such a case in our coun-
try, and when I say that is the prior restraint law, that comes from
previous cases.
If it is prior restraint law, it is in all likelihood also law which
may ban publication, making it criminal.
Mr. DRINAN. Do you think the addition of the intent to impair
and impede does anything to help that problem? Do you think the
addition of that--
Mr. ABRAMS. The addition of the impair and impede would,
within the context of the Senate statute, make some contribution
toward making it less likely to be abused. Let me say, as I said
earlier, I have a problem with the impair or impede statutes.
Nonetheless, as I look at S. 2216, I do think that it would be less
subject to abuse if it had imported into it more than an impair or
impede standard.
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But as I said earlier, I do not think you can do it. There are
other narrowing things that you can do, but it just does not come
close enough. Let me put it the other way around: I suppose if this
statute had enough exceptions built into it so that information that
was already public in some serious way was not a possible subject
of prosecution, so that there was a whistleblower defense built into
the statute, so that the material which cannot be published had to
at least be classified material, then it would be a clear case for me.
But with these factors, at least it makes it easier for me to con-
clude there is no saving this, and there is no way at least that I
have heard which makes either the House or Senate statute close
to the Constitution.
Mr. DRINAN. I thank you for your fine statement. I, too, regret
you had to spend a long afternoon here, but from this Member's
view it has been worthwhile.
Mr. EDWARDS. The response from witnesses we have already
heard today, Mr. Abrams, was that in 501(c), there are sufficient
safeguards so that the CIA agents can be protected and yet the
Constitution is not violated. The safeguards are that the defendant
must have the intent to impair or impede the foreign intelligence
activities, he must know that the information disclosed, identified
such covert agent, and he must know that the United States is
taking measures. They have added three safeguards which they say
do not apply to the Gary Powers case.
Mr. ABRAMS. Suppose a newspaper runs a series of articles expos-
ing what it contends to be wrong within the CIA in terms of its
conduct at home or abroad. Suppose in the course of that article, it
appears necessary to identify some of the people who have, in fact,
committed wrongs. The first part is who, what, where, when. If
those series of articles were published, let us look at what the
statute says: (a) There can be no liability unless-taking the Senate
bill-it is a pattern of activities intended to identify or disclose
covert agents.
I am one of those who likes the idea of putting pattern into this.
Having listened today to what pattern of activities means, at least
in terms of some assurance to prosecute under the statute, I take it
this can entail one article which it reverts to and refers to by name
at least, certain covert agents.
Then the statute says "with reason to believe that such activities
would impair or impede the foreign intelligence activities of the
United States." I would think the United States could easily put
any newspaper on notice that the publication of a particular series
would indeed impair or impede the foreign intelligence activities of
the United States, and, in fact, the CIA has done just such a thing
on some occasions. I think they have served the public.
I think Mr. Colby served the public well on occasion by express-
ing the views of the Agency as to materials that he thought should
not be published because in his view, as director of the Agency, he
thought it would impair or impede the foreign intelligence activi-
ties. But if that kind of communication is going to now put the
newspaper on notice from a legal point of view that it would
impair or impede, then I think that kind of response, having Mr.
Colby or Admiral Turner come in the door, will cease.
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Beyond that, as I suggested earlier, there is nothing wrong in
general with wanting to impair or impede the foreign intelligence
activities of the United States. It is lawful in the ordinary sense
that we use the word law, to have that kind of intent.
Then the only other protection in the statute is that the identifi-
cation has to be of an individual and that the speaker or writer
must know that the information about the individual identifies
him and that the United States is taking affirmative measures to
conceal the individual's classified intelligence relationship. That
will always be the case of a covert agent. When will it not be so? I
suppose you could have some journalist ignorant enough or simply
negligent enough that he simply doesn't know that the person he is
writing about is a covert agent. But that is not the kind of series
that I am positing for you. If you posit any kind of series of articles
about the intelligence agency, itself, then you are, to a large meas-
ure, defending the newspaper into a violation of certain of the
supposed safeguards of S. 2216. Not all of them, but some of them.
The best defense that the newspaper would have, I suppose, is that
it is not really a pattern of activities intended to identify and
expose covert agents but that it really is activities designed to
inform the American public.
Mr. EDWARDS. That would be up to the jury, wouldn't it?
Mr. ABRAMS. That is up to the jury.
Mr. EDWARDS. It might be in a period of hysteria, where juries
find all kinds of things.
Mr. ABRAMS. Yes. I don't take an awful lot of solace, on reading
and hearing the statement of Mr. Keuch this afternoon, telling us
that if the disclosure of a name is integral to a serious discussion of
the nature of American involvement in a certain country or area,
or a question of intelligence policy, that the person who discloses
would not be the target of the bill's prohibition.
I am delighted to have that in the legislative history, and I and
my brothers and sisters at the bar will be citing that back to Mr.
Keuch's face someday, I suppose. But the fact of the matter is that,
as a constitutional matter, it is not very reassuring at all, and not
least, as was suggested this afternoon, because someone has to
decide what is serious and what is not. Surely, as you point out, in
a time of national upheaval and national hysteria, definitions will
differ as to what is serious and what is not. Beyond that, we come
back to the same thing that I said earlier; you will wind up here
with different people being prosecuted for doing the same thing. It
isn't fair.
Mr. EDWARDS. Thank you. Ms. Owen?
Ms. OWEN. Thank you, Mr. Chairman.
On page 7 of your statement, you discuss in detail a rather
serious situation where a conscientious journalist discovers that
the CIA is involved in some sort of illegal conduct and you query:
"Can it be that the identification of perpetrators of such crimes
may never occur or in fact only may be disclosed at the peril of
criminal prosecution?" You have indicated in your statement and
in your testimony before this subcommittee that you support these
disclosure offenses with respect to people who have had access to
classified information. Now, I am wondering why the concern you
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have expressed with respect to journalists here should be any less
serious with respect to former Government employees.
Mr. ABRAMS. I believe that first of all there is a tension that your
question correctly points out between any distinctions in this area.
My view, though, is that when people accept a position with the
Government, they do accept certain limitations on what would
otherwise be their first amendment rights. I don't believe those
limitations are as great as the courts have sometimes concluded
that they are, but there are certain limitations at least which
differ.
I think that we live in a first amendment/ national security
world in which the only way that information about criminal con-
duct-if criminal conduct exists within a secret agency-gets out is
by the press ultimately publishing it. I think we therefore, absent
any first amendment principles here now, as a practical, pragmatic
judgment, we have to free the press to be the publisher, the disclos-
er of information like that. But I don't think that we have to free,
as a matter of law, the same people who may leak to the press
from the possibility of criminal conduct.
Put differently, I am prepared to say that if the effect of the
statute which I favor limiting what former agents can say is that
we will have some less information, even about criminal miscon-
duct. If it occurs by the Agency, that is a price I am prepared to
pay in order to have some kind of assurance that we will not have
long lists prepared by Mr. Agee or his colleagues, of their former
colleagues. But I am not prepared to pay the price of saying that,
for example, if Mr. Agee identifies some agents and that their
names are repeated by some newspaper, that they can be held
liable.
Ms. OWEN. When you speak in terms of freeing the press, does
that imply that there are some restrictions on them, even in terms
of possible prior restraint?
Mr. ABRAMS. Yes.
Ms. OWEN. It is not an absolute prohibition?
Mr. ABRAMS. It is not absolute, but I do reject the notion which I
think I heard today that once we say it is not absolute, then it is
just a matter of how you cut the deal. We can't bargain everything
away.
Ms. OWEN. Just some things.
Mr. ABRAMS. By way of free expression, by the simple phrase
that the first amendment is not absolute. It has to be very hard to
overcome. A lot of what I heard today suggested it might not be so
hard.
Ms. OWEN. We had some discussion here today of the chilling
effect of statutes in this area, which is a real concern. We have also
discussed prosecutorial discretion. There have been suggestions to
the effect that the mere possibility of prosecution, even though it
might not be successful on constitutional grounds, has a chilling
effect that might be objectionable in first amendment terms. There
was a public announcement today by the gentleman from the
Justice Department that he felt certain the instances we have been
discussing are covered under existing espionage laws.
Mr. ABRAMS. Yes.
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Ms. OWEN. In your experience in this area, have the existing
espionage laws had the chilling effect that we have expressed so
much concern about today?
Mr. ABRAMS. In general, I think they have not, and for a few
reasons. One, until recently the Department of Justice did not take
and certainly did not publicly take the position that we have heard
today. In the Pentagon Papers case, for example, it was none too
clear until the case was well underway that the Government was
going to argue that publication, for example, was covered by cer-
tain sections of the espionage law. Beyond that, the Government
had indeed not prosecuted.
I find totally unpersuasive Mr. Keuch's testifying here today that
because the Government has not prosecuted under the espionage
law, people can take solace and exercise their rights of free expres-
sion, freely with the view that they will apparently not be pros-
ecuted under this new legislation, either. That is not the represen-
tation I understood him to make to the gentleman that sat on your
right, but it seems to me that is the only thing I can take from it.
The espionage law has not been enforced much for one reason or
another. One of the effects of nonenforcement is nonchilling. One
of the effects of enforcement is that people say less or do less.
Ms. OWEN. One last question: As a result of some of the sugges-
tions he made today, do you think there will be a chilling effect?
Do you think that people will not publish things they might other-
wise have published?
Mr. ABRAMS. Let me say I have already said a few things which
are probably harsher than I would have said on reflection if I were
sitting here with Mr. Keuch next to me.
Mr. EDWARDS. I think I will let you finish that when I come
back. We will take another 5-minute break.
[Brief recess.]
Mr. EDWARDS. The subcommittee will come to order. You may
complete your sentence.
Mr. ABRAMS. I would like to start my answer over. What I
started to say was that I may have already spoken too harshly of
things Mr. Keuch said. I don't mean this in any sense as a personal
comment on him, but I do not believe that a comment or two by an
Associate Deputy Attorney General will chill the press of America.
I do think that a criminal prosecution based on some of the the-
ories outlined today would have that effect.
Mr. EDWARDS. Ms. Cooper?
Ms. COOPER. Thank you.
Both bills contain an affirmative defense that if the identity of
the agent or source has been revealed by the United States, itself,
that would constitute a defense. But one of the elements of the
crime, itself, is that the person has disclosed the information lead-
ing to the identification of the agent. The term "disclose" is defined
in the House bill at least as meaning "communicate, provide,
impart, transmit, transfer, convey, publish, or otherwise make
available."
Now, my question is, If you were defending someone accused of
violating the statute and your client stated that he based his
information on data he had gotten from the public domain-street-
corner gossip, inferences from publicly available sources, that sort
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of thing-would you and could you make the argument that the
term disclosed implies that it has been disclosed for the first time
into the public domain?
Mr. ABRAMS. Your question puts me in a position of some conflict
of interest between my role as occasional counsel and my role as a
witness trying to answer candidly. Let me do it this way: I think it
would be difficult to argue, in light of what I understand the
legislative history of these proposed statutes to be, that the inten-
tion of those who have put the statutes forward is that disclosed
means only first disclosure.
Certainly that is difficult for me to argue, since I have testified
on too many occasions that doesn't seem to me first disclosure, and
since I have listened to the representatives of the Department of
Justice and the CIA say that it doesn't mean the first disclosure.
Whether now, as a matter of statutory draftsmanship, the defini-
tion of disclosed, nonetheless, allows the argument that in order to
avoid a difficult constitutional issue we should read disclose to
mean first disclosure, is a very creative and provocative thought. I
think I probably would make that argument. But that is the kind
of argument one makes when one is in some trouble. I don't mean
that just in the sense of being perhaps a weak argument; what I
mean is that one can make an argument in cases involving statu-
tory language where the language has constitutional dimensions
and there is case law support for the proposition that you should
read language as narrowly as a draftsman could possibly have
meant it in order to avoid a constitutional confrontation. I suppose
I would make the argument that disclosed in that sense ought to be
read more narrowly than the representatives of the Department of
Justice and CIA are testifying that they mean.
Ms. COOPER. The legislative history can change the intent of
Congress. It is not the intent of the Department of Justice that
matters. The report from this committee, for example, could
change the meaning of that term. If that were to occur, do you
think that would alleviate some of the constitutional problems?
Mr. ABRAMS. If the committee were to make it clear that disclose
means to communicate, provide in part, transmit, transfer, convey,
publish, or otherwise make available for the first time, or its equiv-
alent, I think that would be a significant step forward. Now, if that
is what Congress ultimately means and therefore ultimately that is
what the courts conclude that Congress meant, that would alleviate
some of my concerns with the legislation. It wouldn't deal with all
of them, but it would certainly deal with some of my most serious
ones.
Ms. COOPER. OK. In some of the earlier testimony on this bill, it
seemed as if the primary motivation or at least the stated motiva-
tion for this bill was to protect the lives and livelihood of the covert
agents that were actual employees of the CIA. In the course of the
testimony it seems to have expanded to really include the purpose
of preventing the impairment of American foreign intelligence op-
erations. With that kind of purpose, do you see see any logical
distinction between criminalizing the disclosure of the identity of
the agents, themselves, as opposed to the content of the covert
actions?
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69
Mr. ABRAMS. Yes. I think as a first amendment matter there is a
much stronger case for limitations of the disclosure of the identity
of agents where it is believed that the lives of the agents might be
threatened, than there is a case for limiting disclosure of other
materials, because it is thought in a more generalized way that it
might interfere with the intelligence-gathering process.
I don't have any doubt it is a legitimate congressional purpose to
make the intelligence-gathering and dissemination process work,
but when that is a raid against first amendment interests, it cuts
less weight, it seems to me, than the weight 'which would be
conveyed by the proposition that one has to protect the lives of our
agents in the field.
Ms. COOPER. We now have a legislative history that indicates
that the administration and particularly the CIA object to an
amendment that would require that as an element of the offense
that, in fact, the safety of the covert agent was impaired. Does that
change your opinion?
Mr. ABRAMS. Well, the opposition of the agency to an amend-
ment is a dubious thing to hang too much on by way of predicting
how a court would rule.
Ms. COOPER. But only in that it suggests that the safety is not
their primary concern.
Mr. ABRAMS. Yes; it does suggest that. Certainly that would be
that
can't is that the fact 't be pushed too
argued. I don't 1 al particular All I am saying
the agency y opposes
far.
Let me say that I do think that what springs out of the legisla-
tive history that I have read is a pattern of ambiguity as to the
intended scope of the legislation at both the House and Senate
level; that I think that that very ambiguity, that sometimes studied
ambiguity, is, itself, an independent constitutional problem of enor-
mous magnitude.
I think when I read these committee reports, and I read these
committees saying we are not sure what this means and we are not
quite sure what the scope of that is, that is an invitation for a
court to say that, again, a raid against a first amendment interest
of one sort or another, that we simply cannot allow such ambiguity
to stand and we will not interpret the statute in a fashion which
will leave it ambiguous. It is that type of situation which leads to
very narrow interpretations of statutes, so narrow sometimes that
the Congressmen that adopted, don't always recognize what courts
have done to it.
Ms. COOPER. You said a minute ago you thought there was a
greater possibility for the constitutionality of an act that sought
primarily to protect the safety of the agents, agents being in the
act as a broadly defined term. It also includes informants.
Mr. ABRAMS. Yes.
Ms. COOPER. Do you think that the argument for the protection
of those categories is as compelling?
Mr. ABRAMS. I think it is a legitimate thing for Congress to try to
protect informants. As I have already testified, I think it is a
legitimate thing for Congress to try to protect agents. It is only
because in the act of protecting that we run into serious first
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70
amendment challenges that one starts to parse through this and to
see whether one may carry more weight than another.
I suppose my narrow answer is that while I think that you could
make a respectable argument that the protection of lives of our
covert agents is entitled, as I suggested earlier, to more weight,
even as against a first amendment argument, than the successful
carrying out of intelligence operations; I think it is harder to make
an argument that the protection of lives of covert agents is more
important to us or should carry more weight than the protection of
lives of intelligence sources.
If we are talking in the area of protecting lives, I think the
courts would come out pretty well the same. If what your question
suggests is that there might be an argument that in the area of
covert agents we are talking about protecting lives but in the area
of sources we are simply talking with keeping open a free flow of
information from those sources, as opposed to protecting the very
lives of them, that might be a basis for a constitutional distinction.
Ms. COOPER. Thank you.
Ms. LEROY. Suppose the intention of the bill is to protect the
lives of our covert agents? How would you respond to the sugges-
tion that your proposal-limiting liability to employees who have
access to classified information-did not adequately protect the
lives of agents?
Mr. ABRAMS. There are two parts to that question. One is a
question of fact: How threatened are covert agents because of pub-
lications testified to before this committee and other committees?
The other question is the legal question. There I think it is easier
to conclude as a matter of first amendment law that even if the
United States is correct and the CIA is correct in saying that
publications by third parties may cause some harm or at least may
risk harm to covert agents even though the information revealed
may be public, even if all that is true, there are still significant
constitutional limitations, particularly if it is so that the publica-
tion of CovertAction comes about to no extent through former
agents themselves, and hence could not be caught in the web which
501(a) and (b) tries to weave. It still gives the effect that 501 is not
legal. If we must live with the possibility that a CovertAction
bulletin will do harm, that is the constitutional result.
Ms. LEROY. There has been testimony before the various intelli-
gence committees that it is often in fact very easy to identify covert
agents in foreign countries. You go to the local bar where all the
journalists go and most of them will know who the agents are. Are
you suggesting that under those circumstances it would be nearly
impossible to accomplish the goal of protecting the identities of
those agents? Is it impossible to keep them secret and unconstitu-
tional to prosecute them? Are there better ways to try to protect
these identities?
Mr. ABRAMS. Certainly the primary place of responsibility lies
with the executive Federal Government in finding ways to protect
our agents abroad.
The question I did not answer earlier was, is it a matter of fact
that that which Mr. Wolf reveals would not or could not be known
absent Mr. Wolf? That is not something I have testified about, but
I do not consider myself an expert on that. I could say this: It
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seems to me it is almost irrational to pass a law which did not
distinguish in the Wolf situation between what I would call case A,
which is Mr. Wolf publishing something nobody ever knew about
before, and case B, Mr. Wolf publishing something that is widely
known. It is my view if Mr. Wolf had no connection with the
intelligence agencies, you cannot constrain him in any case. But if
you are going to start down the road of restraining him, it has to
make a difference whether what he has published is notoriously
well known, or a bit well known, or not at all. That is a distinction
the Government refuses to make to any degree at all.
Ms. LERoY. Would the concept of an affirmative defense, along
the line of Congressman Aspin's solution, make you feel more
comfortable about this bill?
Mr. ABRAMS. I think that would be helpful. I think any kind of
effort which allows defense on the ground that the material is not
classified, I do not think opens up an enormous door. But any time
that defense is allowed, it is a useful correction. Still more useful
would be some kind of language which did not simply leave within
the executive branch of Government the definition of what may or
may not be said, but instead, made a simple assertion in the bill
itself as to what may not be said or published.
I think if we have learned anything from the Billy Carter esca-
pades recently, it is that a lot of information which is classified is
not very serious. Therefore, to risk criminal penalties on the divul-
gence of classified information does not give very much relief at
all.
Ms. LERoY. Thank you very much.
Mr. EDWARDS. Mr. Abrams, these FBI informants that will be
covered by this bill, if they have some foreign connection or are so
classified by the FBI, there are quite a number of people in the
United States who feel very strongly about informants and feel
there is an implicit violation of the fourth amendment where infor-
mants are utilized, unless there would be a warrant issued by a
magistrate, which of course is not required. So, there can be a
number of people who would spend a lot of time in identifying FBI
informants and telling their friends about them. Now, that is not
now against the law.
Mr. ABRAMS. That is correct.
Mr. EDWARDS. Under this bill, it would be against the law?
Mr. ABRAMS. Yes. I spent some time at the ABSCAM trial in
New York at which an FBI informant was one of the chief wit-
nesses in that case. It would seem to me appalling if it would have
been illegal for someone to have identified that informant during
the course of his activities, and it seems to me that is but one
example of the use of informants which should not devise to crimi-
nal liability for expulsion.
Ms. OWEN. Would he be covered under the foreign counter intel-
ligence component of the FBI, under the bill as drafted?
Mr. ABRAMS. No.
Mr. EDWARDS. Are there further questions? We have kept you a
long time, but your contribution as always is tremendously valua-
ble, and we thank you very much.
Our next hearing on this matter will be tomorrow at 2, same
room.
[Whereupon, at 6 p.m., the subcommittee was adjourned, to re-
convene at 2 p.m., Wednesday, August 20, 1980.]
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INTELLIGENCE IDENTITIES PROTECTION ACT
HOUSE OF REPRESENTATIVES,
SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS,
OF THE COMMITTEE ON THE JUDICIARY,
Washington, D.C.
The subcommittee met, pursuant to notice, at 2 p.m., in room
2237, Rayburn House Office Building, Hon. Don Edwards (chair-
man of the subcommittee) presiding.
Present: Representatives Edwards, Seiberling, Drinan, Hyde,
Sensenbrenner, and Mazzoli.
Also present: Catherine A. LeRoy, counsel; Janice Cooper, assist-
ant counsel; and Deborah Owen, associate counsel.
Mr. EDWARDS. The subcommittee will come to order.
The subcommittee is pleased and honored to have as our first
witness today our very distinguished majority leader, the gentle-
man from Texas, Mr. Wright. Mr. Wright is also a sponsor of an
agents' identities bill.
We are very pleased to have you here today, Jim.
I yield to the gentleman from Massachusetts, Mr. Drinan.
Mr. DRINAN. Thank you, Mr. Chairman.
I echo the sentiment, we are very honored to have the very
distinguished majority leader, and I look forward to your testi-
mony.
Mr. EDWARDS. You may proceed.
TESTIMONY OF HON. JIM WRIGHT, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. WRIGHT. Thank you very much, Mr. Chairman.
On July 4, the home of a senior U.S. Embassy official in Jamaica
was machinegunned and bombed. Luckily, Richard Kinsman, a
first secretary at the Embassy in Kingston, was not hurt. Fortu-
nately, his wife and three children were away on vacation when
their home was sprayed with .45 caliber bullets. Several of those
bullets smashed into one of the children's rooms.
That attack came 2 days after the editor of the so-called Covert
Action Information Bulletin declared that Mr. Kinsman was a CIA
agent and gave out his home address, phone number, automobile
tag numbers, and make and description of the family's car.
This is not the first time by any manner of means that a
member of the U.S. intelligence apparatus abroad has been har-
assed. There have been many instances.
In 1975, Richard Welch, in Greece, was slain after that same
group had identified him as a CIA agent.
(73)
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Rarely has an event cried out more clearly for legislative action.
Those who serve the United States deserve the protection of the
United States. A nation which will not protect its own servants
will see its sources of information dry up, and we have certainly
seen that happen. It will see the courageous men and women who
undertake dangerous intelligence jobs abroad lose heart and lose
the sense of dedication required for such extremely difficult, deli-
cate and dangerous work.
Perhaps of equal importance is the fact that residents of foreign
countries, upon whom we have to rely if we are to have a first-rate
intelligence capability, lose confidence in us and in our ability to
protect them and discontinue contact with our people abroad. We
have seen that happen over and over again.
Why should an agent risk his life, and the lives of the members
of his family, if we in the Government refuse to offer the most
basic, simple forms of protection. Not only does it place agents in
physical jeopardy but it makes performance of their difficult task
almost impossible.
So, Mr. Chairman, I regard this particular bill which would
make it a Federal crime to identify publicly members of the U.S.
intelligence operations abroad as a significant part of the agenda
before this Congress.
As Majority Leader, I intend to do everything I can to see that
this bill is passed and to protect our agents from those misguided
people who have confused legitimate criticism of the CIA with the
right to inflict direct harm upon individual agents abroad and to
commit deliberate attempts to destroy the usefulness of this coun-
try's intelligence apparatus.
We live in a dangerous world, a deceptive world in many ways,
in which any nation needs an effective intelligence capability. To
rob ourselves of it is almost as self-defeating as to permit in war-
time the publication of troop movements.
There is a tendency in some quarters, I think, to look at this bill
backwards and to ask how it could be used to protect journalists.
This bill doesn't attack journalists. That is neither its intent nor its
effect. The point of the bill is to protect agents who work for this
country and to protect the United States.
There is nothing in the bill that would keep Jack Anderson from
claiming that we plan to invade Iran on the eve of the elections, as
ridiculous as that may be.
There is nothing in this bill that would keep the New York
Times from revealing the Pentagon Papers.
There is nothing that would keep a journalist from criticizing the
plans and policies of the CIA.
But there is something in this bill to keep the people who pub-
lish this vicious magazine from running a section, such as the one
they call, Naming Names. What does it do? It purports to list the
names of all CIA officers that this publication can discover. If a
nation is to have an intelligence capability, then it must be able to
conduct some kind of covert action without a rogue former agent
turning traitor against the United States and attempting to misuse
the information that has come into his possession while in the
employ of the United States.
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That is something Congress has a responsibility to do. I think if
this Congress is permitted to adjourn without our having taken
this action, as described in this bill, all of us would stand subject to
very, very justifiable criticism.
Mr. EDWARDS. Thank you very much, Mr. Wright.
The gentleman from Massachusetts, Mr. Drinan.
Mr. DRINAN. Thank you, Mr. Chairman.
Mr. DRINAN. Thank you, Mr. Chairman.
I, too, thank you, Mr. Wright, and I have no difficulty with the
bill that you filed, H.R. 3357, with Mr. Aspin and some others, but
as you know, the moment that we broaden the scope a serious
constitutional problem arises.
Do you think that your bill, H.R. 3357, would solve the problem
that you enunciated so eloquently?
Mr. WRIGHT. I thought it would at the time I introduced the bill,
Mr. Drinan. I think at the present time it is very important that
we act expeditiously given the hour glass of time that is running
on this Congress. I think it would be fateful if we were to allow this
Congress to expire without our having taken action.
For that reason, I should like to express the sincere hope that
this committee would approve the bill in the same form in which it
has been approved by the Intelligence Committee after many,
many months of careful deliberation.
Mr. DRINAN. Mr. Wright, I wonder if you would comment on the
amendment that Les Aspin proposed, unsuccessfully, in the Intelli-
gence Committee, and that would state that there is an affirmative
defense for a person accused of this crime if that person can
demonstrate that the disclosure is based on other than classified
information.
Mr. WRIGHT. I am not enamored of that. I don't see it would
serve any particular purpose, and I think its principal effect would
be to delay enactment of the bill. It is my purpose as majority
leader to try to get this bill on suspension at the earliest possible
time, and as the gentleman from Massachusetts well would know,
that purpose might be confused and compromised by the introduc-
tion of any additional language.
So I personally would prefer to see the bill approved by this
committee and sanctioned in exactly the same form in which it
came from the Committee on Intelligence.
Mr. DRINAN. Well, I thank the gentleman for his comments and
congratulate him upon his active pursuit of this matter. That is
very heartening to me to see the leadership involved in the critical
problem that is here.
Thank you very much.
Mr. EDWARDS. We thank the gentleman for an excellent state-
ment. Most of the constitutional lawyers that we have been talking
to, and indeed a very distinguished one that testified yesterday, say
that the bill is liable to or certain to be declared unconstitutional
by the Federal courts because of section 501(c) which has to do with
the publication of unclassified information, information that is al-
ready in the public domain.
Would your very excellent goal not be thwarted by the enact-
ment of this bill as it is with this particular section in it? It would
be immediately challenged, apparently in accordance with the pre-
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76
cedents, and certainly it is the opinion of several of us on the
subcommittee that that section is indeed unconstitutional.
So how are we supposed to resolve that?
Mr. WRIGHT. Mr. Chairman, I would not presume to be a suffi-
cient authority on the Constitution, nor upon its precedents, to
pass an authoritative judgment on the question. I think that
historically has been a decision by the Congress. It is the business
for the courts to review enactments of this body for constitutional-
ity.
I cannot believe, though, fundamentally, that a nation does not
possess under its Constitution the right to protect itself. I think
that is all we are doing here. I think a nation that has the right to
prohibit disclosure of troop movements, for example, in time of
war, has the right to prohibit disclosure of the identity of its covert
agents.
Mr. EDWARDS. Thank you very much.
The gentleman from Ohio, Mr. Seiberling?
Mr. SEIBERLING. Thank you.
I am sorry I missed your testimony but I have read your written
statement and I certainly agree with what you have said, but I
have one more refinement that I would like to get your view on.
The bill as written would punish not only the initial publication
but republication. Mr. Floyd Abrams, who testified yesterday, made
the point that if, for example, a newspaper had a record of oppos-
ing CIA activities or intelligence activities and announced that it
wanted to curb those activities and then at the time Gary Powers
was shot down when the U-2 plane was shot down in Russia-of
course, all the world knew that he was an agent and that he so
stated and it was stated in the press-that if the New York Times,
for example, had the kind of record that I mentioned and repub-
lished that information, they would then be subject to prosecution.
I am not saying they would be prosecuted, but they could be.
Should we not provide that the penalty is attached to the initial
public disclosure and not to news media that republish what is
already in the public domain?
Mr. WRIGHT. John, I think we have to be at some pains to protect
the right of legitimate news media to print legitimate news stories.
I think the Constitution itself without any help from us does that,
and I don't see any way in which we can weaken that right so
firmly entrenched in the Constitution of the United States, the
first amendment.
However, I think in bending over backward to protect the rights
of the press to republish, we must avoid opening the door to a
publication like this. We must not allow someone else to publish in
a mimeographed form and then cloak this group in the defense
that it is merely republishing something that had already been
published. We would wind up with a useless piece of legislation.
Mr. SEIBERLING. If the information that they published is in the
public domain already, it is the initial disclosure it seems to me,
that is the problem, and I must say that kind of publication offends
me deeply. I think that the people that are doing that are really
reprehensible, but if now some other publication should republish
it, even if the second publication shares the attitude that was
apparently reflected in the editorial staff of this one, it seems to
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me that that becomes of no public concern at all because the
damage is done.
. Mr. WRIGHT. I am not at all sure that is the case. I tend to
believe that the republication on a broader scale of something that
has been published and distributed on a narrower scale would be
not only as reprehensible but potentially more damaging than the
initial publication.
Mr. SEIBERLING. Well, our desire is to protect the agent, not to
protect the CIA from criticism.
Mr. WRIGHT. Exactly.
Mr. SEIBERLING. The agent's problem is when his identity is first
disclosed.
Mr. WRIGHT. That is exactly right. But if his identity had been
disclosed to a very small readership, and his safety not put in
jeopardy by members of that readership, then I don't think we
perform the purpose we seek to achieve if we give a defense to a
larger publication that publishes his name to a much wider reader-
ship and does put his life in jeopardy.
Mr. SEIBERLING. There is something to what you say. If during
wartime, for example, troop movements were published in some
small journal, it would be much less damaging than if the New
York Times published it.
Mr. WRIGHT. Precisely. Let's say that someone is an enemy agent
stationed wherever one might be stationed. He would be much less
likely to come across something published in a small weekly paper
in a suburban part of some relatively obscure town in the United
States than he would if it were published in the New York Times.
Mr. SEIBERLING. Thank you.
Mr. EDWARDS. We are pleased to welcome the gentleman from
Kentucky, Mr. Mazzoli.
Mr. Mazzoli, you are recognized.
Mr. MAZZOLI. Thank you. I appreciate your courtesy and I will
take just a moment to first welcome our friend from Texas, our
majority leader, and commend him on his efforts which date back
almost to the beginning of the first year of this Congress in his
private offices where we had our dinner to indicate his personal
support of the bill.
I would only add I tend to agree with what the gentleman, our
majority leader, has said about the bill, that is, that prohibition on
disclosure by one who had knowledge of this first hand is certainly
reprehensible, and that the second phase of the case which, while
very difficult, is one the committee labored over very much.
I still think it is reprehensible where under the terms as we
wrote the bill, the second phase, which is directed at one who
doesn't have privy knowledge of the sensitive information does
indeed disclose it, I think the point my friend from Ohio was
bringing up with the republication is, if I understand the bill
correctly, is dealt with in the bill in that you have really two
hurdles where you have to show intent:
You have to show there was a clear problem with respect to the
press, where it was reporting information, would be maybe subject
to some sanction because it reported material of a sensitive nature
which would divulge identities, but our committee, the Committee
on Intelligence, made sure that there was the intent, the intent has
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to be shown, both in the original disclosure but also in the subse-
quent disclosure, that the intent to impair and impede the foreign
intelligence activities in the United States has got to be proven.
And so with respect to the view, that aspect dealing with those
who don't have classified covers or classified clearances ahead of
time should not be subject to the bill, I think under the circum-
stances in which this committee or the Intelligence Committee set
it up, I think it has been reasonably protected.
So I would just commend the majority leader and thank the
chairman for his courtesy today.
Mr. EDWARDS. Thank you.
Ms. Owen?
Ms. OWEN. I have no questions.
Mr. EDWARDS. Are there further questions?
We thank the majority leader very much.
Mr. WRIGHT. Thank you very much, Mr. Chairman.
Mr. EDWARDS. Our next witness is the distinguished minority
leader of our committee, the gentleman from Illinois, the Honor-
able Robert McClory. He is a personal and valued friend.
Mr. McClory, we are delighted to have you here. You may pro-
ceed with your statement. We will go until the second bell. We will
go vote and come back for your questions. Is that agreeable to you?
TESTIMONY OF HON. ROBERT McCLORY, A REPRESENTATIVE
IN CONGRESS FROM THE STATE OF ILLINOIS
Mr. MCCLORY. Very well.
Thank you. I am delighted to have this opportunity to testify
before this subcommittee and to have this subcommittee consider-
ing legislation which would punish those who jeopardize the Na-
tion's security by disclosing the identities of covert intelligence
agents. These activities are not protected by the first amendment
guarantees of freedom of speech and of the press and must not
remain unprotected by legislative inaction.
I do not believe that there is any significant objection to achiev-
ing the goals of the proposed legislation, H.R. 5615, which has
already been considered and favorably reported by the House Com-
mittee on Intelligence upon which I serve with the gentleman from
Kentucky, Mr. Mazzoli.
The approach adopted by the Intelligence Committee, after ex-
tensive hearings, staff work, and committee debate, is three-tiered.
The first two tiers apply to individuals who gained access to infor-
mation identifying covert intelligence agents through authorized
access.
The third tier would punish anyone who disclosed an agent's
identify, but only if two important factors can be shown. This
would be the part that would apply to journalists, who met the
listed criteria.
The first requirement is that the disclosure was made 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. Second, the disclosure itself must be made with the
intent to impair or impede the foreign intelligence activities of the
United States.
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79
In the view of the Intelligence Committee, where I have the
honor of serving as ranking minority member on the Subcommittee
on Legislation, the intent requirements of section 501(c) adequately
protect legitimate journalistic endeavors and certainly avoid any
constitutional objections. position of the Depart-
ment would like to comment briefly on the found constitutional con-
cerns of Justice. First, while they
cerns of varying gravity in the different proposals which have been
made in this area, they have testified before and .written to the
bill, as introduced and as reported
Intelligence m Committee that constitutional.
by the
Second it is seemingly anomalous that the Department finds less
ow"
, a ts defendant's actions could the a or t impede Iintelligence
that the h
activities standard, than with the Intelligence Committee's lan-
guage which provides that there must be an intent to impair or
impede the interest of the United States.
An intent standard requires a higher showing of culpability than
does a reason-to-know standard. I think the intent standard is more
compatible with a legislation which imposes criminal penalties. I
have yet to hear a reconciliation of this anomaly.
In studying subsection (c), it is interesting to compare aspects of
it with existing law. Mr. Wright made reference to the provision of
the law which would impose penalty on those who disclosed de-
fense secrets. Likewise, those who disclose information regarding
.
our atomic secrets, are subject to
matter how the d sclosedtin lawrma-
of these statutes apply no
tion was obtained.
I believe that H.R. 5615 on its own, and read in the light of
existing law, more than passes constitutional muster. In can end,
only a law that is fair on its face and in its application
desired social effects within constitutional demand for this legislation. I
I know that there is a strong public
e
know that there is a strong demand for this in the inlli toce
community. The Director of the FBI speaking just yesterday
group of us emphasized the need for indll of legislation
tiv ties
order to assist him in his foreign ro
because there is at the present time grave fear on the part of those
who serve as informants and as intelligence agents that their iden-
tity might now be disclosed without any fear of punishment. I am
hopeful that this subcommittee will act favorably on H.R. 5615 and
that we can act favorably on this in our full committee, so that this
measure may soon reach the floor of the House and receive priority
statemen follows leader made reference.
attention
e prepared which t
[The
OF HON. ROBERT MCCLORY
Mr. Chairman, I appreciate this opportunity to testify before the Subcommittee on s legislation of our covert i ntell gene aagents.hSuch fact vty standsy without
protection of the First Amendment guarantees of freedom of speech and of the
press, and must not remain protected by legislative inaction.
I do not believe that there is significant objection to achieving the goals of the
proposed legislation-H.R. 5615, the "Intelligence Identities Protection Act", which
was reported ysurrounds by t the House means Permanent Select Committee on Intelligence. The con-
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80
The approach adopted by the Intelligence Committee-after extensive hearings,
staff work, and Committee debate-is three tiered. The first two tiers apply to
individuals who gained access to information identifying covert intelligence agents
through authorized or quasi-authorized fashion.
The third tier, section 501(c), would punish anyone who disclosed an agent's
identity, but only if two important factors can be shown: One, that the disclosure
was made (quote) "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" (unquote); and, two, where the disclosure, itself, is made (quote)" with the
intent to impair or impede the foreign intelligence activities of the United States"
(unquote).
In the view of the Intelligence Committee, where I have the honor of serving as
the Ranking Minority Member on the Subcommittee on Legislation, the intent
requirements of section 501(c) adequately protect legitimate journalistic endeavors,
and certainly avoid constitutional objections.
I would like to comment briefly on the position of the Department of Justice.
First, while they have found constitutional concerns of varying gravity in the
different proposals which have been made in this area, they have testified before
and written to the Intelligence Committee that H.R. 5615-both as introduced and
as reported by the Committee-is constitutional. Secondly, it is seemingly anoma-
lous that the Department finds less of a constitutional problem with the Senate's
"reason to know' standard-that is, reason to know that the defendant's actions
could impair or impede intelligence activities-than with the House Intelligence
Committee's "intent to impair or impede" standard. An intent standard requires a
higher showing of culpability than does a reason to know standard. I have yet to
hear a reconciliation of this anomaly.
in studying subsection (c), it is interesting to compare aspects of it with existing
law.
As to the intent requirement, section 793 of title 18, entitled "Gathering, Trans-
mitting, or Losing Defense Information", prohibits certain activities done "with the
intent or reason to believe" that the activity will injure the U.S. or grant an
advantage to a foreign power. Section 794 of title 18 has an identical "intent or
reason to believe" requirement.
As to the issue of criminalizing the disclosure of information obtained other than
from classified sources, section 798 of title 18 prohibits anyone from disclosing
cryptographic information or any information obtained through communications
intelligence. And, section 224 of the Atomic Energy Act (50 U.S.C. section 2274)
prohibits disclosure of atomic energy information. Both of these statutes apply to
information no matter how obtained.
I believe that H.R. 5615, on its own and read in the light of existing law, more
than passes constitutional muster. In the end, of course, laws, to be fair, must be
applied fairly. Only a law that is fair on its face and in its application can have
desired social effects within constitutional bounds.
H.R. 5615, as reported by the Intelligence Committee, is a good and fair approach
to a difficult problem. It deserves our support.
Thank you.
Mr. EDWARDS. Thank you very much, Mr. McClory, for an excel-
lent statement.
Are there questions by members?
Mr. SEIBERLING. I would like to comment, Mr. Chairman, the
standard in the bill as introduced, which seems to be a dual stand-
ard, I wonder if it really is? It seems to me it is a single standard.
As you point out, section 501(c) would require two factors to be
shown: One, that disclosure was made in the course of an effort to
identify and expose the covert agent with the intent to impair or
impede the foreign intelligence activities of the United States.
And, two, where the disclosure itself is made with the intent to
impair or impede the foreign intelligence activities of the United
States.
If you find the first intent, it seems to me the second intent
follows as an inevitable consequence. So I wonder if it is really two
separate factors?
Mr. MCCLORY. I think so.
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Mr. SEIBERLING. There isn't a requirement that it impair or
impede but it be done with intent to impair or impede. If it is part
of an effort to identify and expose- a covert agent with intent to
impair or impede, then you found intent. Or impair or impede, it
seems to me, I don't really think there are two tests. Maybe it is a
minor point.
Mr. MCCLORY. Maybe it is. If the intent is innocuous-for in-
stance, if the intent were to disclose the identity of William Web-
ster as Director of the FBI-it would not have any effect on our
national security and would not impede our intelligence activities.
Whereas, if it related to some covert agent, the requisite intent
would be present and, likewise, our intelligence activities would be
impeded.
Mr. SEIBERLING. Well, of course, disclosure of the Director of the
FBI wouldn't be disclosure of a covert agent so it wouldn't apply at
all.
Well, I don't want to belabor the point but it does seem to me
that the second finding is going to follow as a matter of course if
you make the first finding.
Mr. MCCLORY. It is a tough requirement and it is consistent with
most criminal statutes, as I understand it. The dual intent is a
vital element in the establishment of the crime.
Mr. SEIBERLING. It certainly makes that clearer than if there
weren't.
Mr. MCCLORY. I think so.
Mr. SEIBERLING. I agree.
Mr. EDWARDS. Mr. Drinan?
Mr. DRINart. I think we have a vote momentarily.
Mr. EDWARDS. We have a couple more minutes before the second
bell rings.
Mr. DRINAN. Let me ask your friend, the distinguished minority
member, this question: In the Intelligence Committee, were there
some professors and civil libertarians who concurred in the view
eloquently set forth by yourself that the constitutional problems
have been resolved?
Mr. MCCLORY. Yes, sir, there were. We had several professors of
law who testified regarding the constitutionality and on the appro-
priateness of this legislation. I do not recall their names now, and
there were variations among their opinions, but I thought the
weight of the constitutional expertise from the academic communi-
ty was supportive of this bill.
Mr. DRINAN. They said that it does not violate the first amend-
ment if the Federal Government prohibits the dissemination of
information already released?
Mr. MCCLORY. If it is not classified information, and if it is
released by the Government, well, that is one thing. But if the
information is released, for instance, overseas, and appears in a
publication there for the precise purpose of making it susceptible of
republication here, then the statute would apply.
Mr. DRINAN. I thank the gentleman.
Mr. EDWARDS. Does the gentleman from Kentucky have any
questions?
Mr. MAzzoLI. No, sir.
Mr. EDWARDS. Ms. Owen?
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Ms. OWEN. No.
Mr. EDWARDS. Well, then, I believe we will thank you very much
for the excellent testimony and we will all go vote.
Mr. MCCLORY. Thank you very much.
Mr. EDWARDS. We will recess for 10 minutes, after which we will
have the testimony of the gentleman from Wisconsin, Mr. Aspin.
[A brief recess was taken.]
Mr. EDWARDS. The subcommittee will again come to order.
Our next witness is our distinguished colleague from Wisconsin,
the Honorable Les Aspin. As a member of the Intelligence Commit-
tee, Congressman Aspin is very familiar with the legislation before
us. He is also a sponsor of several proposals designed to protect the
identities of undercover foreign intelligence agents.
Mr. Aspin, we welcome you here today and you may proceed.
TESTIMONEY OF HON. LES ASPIN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF WISCONSIN
Mr. ASPIN. Mr. Chairman, would you like me to read the state-
ment or put the statement into the record and talk? What would
you like?
Mr. EDWARDS. I believe that it would be a good idea to move
through the statement.
Mr. ASPIN. OK.
[The prepared statement follows:]
STATEMENT OF REPRESENTATIVE LES ASPIN
Mr. Chairman and Members of the Committee, I greatly appreciate your invita-
tion to testify today with respect to H.R. 5615. Unfortunately, the really important
tests of the Bill of Rights and especially the First Amendment are often brought on
by individuals and causes who may be intensely unpopular.
This is the situation with H.R. 5615, the Intelligence Identities Protection Act.
This Bill embodies the sharp disapproval of an overwhelming majority of Ameri-
cans at the actions of a few self-appointed guardians of the public morality, who
have decided in their wisdom that we no longer need covert action intelligence
capabilities.
There is no question but that the activities of men like Phillip Agee have weighed
heavily on the minds of intelligence officers working under cover abroad. There is
no question but that when a journal such as the Covert Action Information Bulletin
publishes the names of persons said to be members of CIA in Jamaica, and those
persons are exposed to physical jeopardy, most Americans are outraged.
The danger is that, motivated by anger and working in haste, we will offer up
legislation that is unwise, that taxes the First Amendment, and weakens its protec-
tions and quarantees. Should that happen, the best we can hope for is that the
Supreme Court would strike it down or narrow the bill in ways that deprive it of
meaning-but then we would be left still facing the problem of how to deal with
this issue.
H.R. 5615 is a product of a long effort to avoid those pitfalls. The bill in its
present form shows major effort to define the divulging of names of agents as a
criminal act narrowly enough so that it does not embrace legitimate exercises of
freedom of speech or freedom of the press.
Nevertheless, I believe that the Bill errs in at least one fundamental way. Section
501(c) was drafted specifically with the Covert Action Information Bulletin in mind.
It reads:
"(c) Whoever, 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, discloses, with the intent to impair or impede the foreign intelligence activi-
ties of the United States, to any individual not authorized to receive classified
information any information that identifies a covert agent knowing that the infor-
mation disclosed so identifies such covert agent and that the United States is taking
affirmative measures to conceal such covert agent's intelligence relationship to the
United States, shall be fined not more than $15,000 or imprisoned not more than
three years, or both."
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The key phrase here is "any information that identifies a covert agent". This
means not just classified information, but all information including unclassified.
The question of whether or not it is possible to figure out the names of covert
agents reliably from unclassified sources is one which seems to give the CIA a lot of
difficulty.
Rereading the testimony of Mr. Carlucci, the Deputy Director of Central Intelli-
gence, for example, I find it difficult to tell what he is saying on this point.
The problem is not hard to understand. Surely CIA would not want to admit that
covert arrangements are so poorly designed that they can be penetrated by a little
work in the public library. If so, then it should be the CIA which goes back to the
drawing asked to dip board into the First those to make good on od on whas ought has done
poorly.
On the other hand, CIA apparently doesn't want to claim that unclassified infor-
mation is valueless as a means to detect covert agents, because then there is no
reason to include unclassified information in the Bill.
An interesting fact about cover arrangements, in contrast to almost any other
kind of secret, is that the government should have the best chance of keeping this
knowledge to itself, among all the secrets it possesses.
Each piece of information that gets written and sent into the world about an
individual who is under cover is the result of an act of decision by someone in the
Executive Branch.
If the government eventually allows so much different information about cover
arrangements to get out into the unclassified world-and not through leaks mind
you, but legitimately, in this or that piece of paper-that you can piece together the
names of agents, in a sense the government itself has revealed the names of those
agents.
H.R. 5615 comes close to recognizing this idea. Section 502(a), under Defenses and
Exceptions provides that:
"It is a defense to a prosecution that before the commission of the offense with
which the defendant is charged, the U.S. had publicly acknowledged or revealed the
intelligence relationship to the U.S. of the individual the disclosure of whose intelli-
gence relationship to the U.S. is the basis for the prosecution."
That's a reasonable position to take, and it's too bad the principle wasn't carried
through to its logical conclusion.
If we ever get a situation where persons did not get the names of agents from
classified sources, but from careful research involving unclassified sources, H.R.
5616 says that those persons could be prosecuted.
We shouldn't be in the business of prosecuting people for applying unclassified
information that the government freely gave out, even if we don't like the purposes
or the product.
I am not am not arguing that the First Amendment is absolute. There have been
instances where the Government has established the constitutionality of its right to
limit speech. But the tests for these limits are severe, involving jeopardy to lives,
and imminent danger to the survival of the nation, as in time of war.
But if you look at the advocacy CIA has mounted on behalf of H.R. 5615, I think it
will be clear that the core of their problem is something else, better defined as
administrative inconvenience: the loss of trained agents, the embarrassment to
liaison relationships with other intelligence services, and so on.
At that level of injury, where we are talking mainly about impeding the progress
of this or that intelligence program, I do not think the Constitution allows us to
punish individuals who use unclassified information to say things we dislike, howev-
er heartily.
That is why I believe that 5615 should not extend to the products of unclassified
information. Therefore, when the Bill was under discussion in the House Permanent
Select Committee, I introduced language to that effect, as follows:
"It is a defense to a prosecution under Section 501 that before the commission of
the offense with which the defendant is charged, the defendant knew from other
than classified information the intelligence relationship to the United States of the
individual the disclosure of whose intelligence relationship to the United States is
the basis for the prosecution."
Regrettably, it was rejected. But I think it was right. Although alone among my
colleagues on the Select Committee on this issue, I have some distinguished compa-
ny, and at least one surprise guest.
In 1945, Judge Learned Hand, in the Heine case, reversed an espionage conviction
that was based solely upon evidence of clandestine transmission into Nazi Germany
of publicly available information. The description of the techniques employed will
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sound familiar if transposed from gathering unclassified data about U.S. defense
production to gathering and collating unclassified data about the names of agents:
This material he condensed and arranged in his reports, so as to disclose in
compressed form the kinds and numbers of planes-military and commercial-
which were being produced and which it was proposed to produce; the location and
capacity of the factories; the number of their employees; and everything else, of
which he could get hold, that would contribute to as full a conspectus as possible of
the airplane industry. All of this information came from sources that were lawfully
accessible to anyone who was willing to take the pains to find, sift and collate
it,
Hand, while clearly recognizing that Heine had been acting as an agent for the
Third Reich, decided that Heine s use of unclassified materials could not be pros-
ecuted as a criminal act:
"Certainly it cannot be unlawful to spread such information within the United
States; and, if so, it would be to the last degree fatuous to forbid its
transmission . . . Whatever the wrong done . . . that motive did not make the
spread of information criminal, which it would not have been criminal to spread, if
he had got it fairly. .
Even more interesting is the position of the Department of Justice just a few
months ago. At that point, Justice clearly took the position that including unclassi-
fied information would risk making any names of agents bill unconstitutional. Mr.
Robert L. Keuch, the Associate Deputy Attorney General, testified that:
"(Such a proposal) marches overboldly, we think, into the difficult area of politi-
cal, as opposed to scientific, "born classified" information, in a context that will
often border on areas of important public policy debate . A speaker's state-
ments about covert activities could be punished even though they are not based on
access to classified information, do not use inside methodology acquired by the
speaker in government service, and are unimbued with any special authority from
former government service... .
The Department of Justice was, moreover, advocating its own bill at the time, and
the language is worth having a look at, since it explicitly covers classified informa-
tion, only.
What has changed since Justice took this position has nothing to do with the law
or with an understanding of the Constitution.
The only new factor is public and congressional anger over the intervening
activities of the editor of the Covert Action Information Bulletin.
If anger is the basis for a change of heart on such a significant issue, we should
think again.
Mr. AsPIN. Mr. Chairman, members of the committee, I appreci-
ate the opportunity to come here and discuss the issue that is
before us, and particularly the legislation which has come out of
the Intelligence Committee.
This bill embodies the sharp disapproval of an overwhelming
majority of Americans at the actions of a few self-appointed guard-
ians of the public morality, who have decided in their wisdom that
we no longer need covert action intelligence capabilities.
There is no question but that when a journal such as the Covert
Action Information Bulletin publishes the names of persons said to
be members of CIA in Jamaica, and those persons are exposed to
physical jeopardy, most Americans are outraged.
The danger is that, motivated by anger and working in haste, we
will offer up legislation that is unwise, that taxes the first amend-
ment, and weakens its protections and guarantees. Should that
happen, the best we can hope for is that the Supreme Court would
strike it down or narrow the bill in ways that deprive it of mean-
ing, but then we would be left still facing the problem of how to
deal with this issue.
H.R. 5615 is a product of a long effort to avoid those pitfalls. The
bill in its present form shows major effort to define the divulging of
names of agents as a criminal act narrowly enough so that it does
not embrace legitimate exercises of freedom of speech or freedom
of the press.
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If you could turn to the language of the bill, Mr. Chairman. In
the bill you will see that what we are talking about is title V,
amendment of the National Security Act of 1947, to add the follow-
ing new title: Title V. Protection of Certain National Security
Information.
There are under section 501 three different parts, section 501(a),
section 501(b), and section 501(c).
Both (a) and (b) apply to people who have had access to classified
information and, who, in the course of having access to classified
information somehow divulged that information to unauthorized
people, intentionally, for the purpose of disrupting our activities.
I have no objection to 501(a) and 501(b) because it does apply to
people who have had access to classified confidential information.
The danger here seems to be in 501(c), which I shall, read.
It says:
Whoever 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
discloses, to any individual not authorized to receive classified information, any
information that identifies a covert agent knowing that the information disclosed so
identifies such a covert agent and that the United States is taking affirmative
measures to conceal such covert agent's intelligence relationship to the United
States, shall be fined not more than $15,000 or imprisoned not more than three
years, or both.
That, Mr. Chairman, is the section that has me very worried.
What we are applying this to, is "whoever in the course of an effort
to identify and expose covert agents". The person we are talking
about here does not have to have access to classified information:
He may just be an individual operating without benefit of access to
any classified information.
The issue here is what happens if you have, for example, an
investigative journalist examining the records, public records, not
classified information, and in the course of writing an expose or
series of exposes about the CIA, it produces information that iden-
tifies, exposes a covert agent.
Now I think that this runs very, very close to being a serious
abridgment of the freedom of speech.
If a person was doing this kind of writing, would that fall under
the heading of trying "to impair or impede the foreign intelligence
activities of the United States?" Yes, it could. If you are a journal-
ist writing an expose, presumably because what you think is going
on is wrong, and you are trying to impair or impede it, you are
trying to stop it-trying to expose something you think is wrong-
and in the course of exposing it, you are clearly intending to
"impair or impede."
Foreign intelligence activities, you remember, covers a wide vari-
ety of activities. It seems to me that what we have got here is
language here in this bill at this point which is extremely danger-
ous.
The other thing is, on line 16 where it says:
In the course of an effort to identify and expose the covert agents with intent to
impair or impede the foreign intelligence activities of the United States, discloses
with the intent to impair and impede foreign intelligence activities of the United
States to any individual not authorized to receive classified information, any infor-
mation that identifies a covert agent knowing that the information disclosed so
identifies such covert agent in the United States.
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Any information that identifies covert agent, any information. In
other words, you are not only talking about naming names here;
you are talking about mentioning any information that leads you
to identify somebody. A person could, I contend, inadvertently, via
this clause, run afoul of the law very, very easily.
So a journalist writing an article about CIA activities, not based
on access to classified information, could still be said to have had
the intent to impede the foreign intelligence activities of the
United States. All he needs to do is disclose new information that
identifies a covert agent knowing that the information disclosed
identifies a covert agent.
I think this could happen, very, very easily, in the course of what
you and I, and I think most of the members of this committee
would agree was a legitimate journalistic effort, and a legitimate
exercise of the right of free speech and indeed the legitimate right
of the media, of the press, to conduct oversight of Government
activities. I think that they could too easily run afoul of this.
It is, Mr. Chairman, somewhat of a puzzle as to why the CIA is
so insistent that this clause is necessary. Let me say what I
thought was the way to remedy this and the proposal that I offered
in the Intelligence Committee, which was not agreed to.
In the bill, at the bottom, under "Defenses and Exceptions," it
already says, "it is a defense to a prosecution under section 501
that before the commission of an offense, with which the defendant
is charged, the United States had publicly acknowledged or re-
vealed the intelligence relationship to the United States of the
individual, the disclosure of whose intelligence relationship to the
United States is the basis for the prosecution."
The framers of this bill have already admitted that under certain
circumstances the revelation of a name would be legitimate.
Namely, if for some reason, the Government has already revealed
the name of that agent, in some form, and has already caused the
name to become public.
I offered an amendment, in the form of another section to 502,
502(b), which in effect says that it is also a defense to prosecution
under this section if the defendant can demonstrate that he or she
got the information that they published from unclassified sources,
or derived it from unclassified sources.
Another way to go would be to knock out 501(c) altogether. I
offered instead the approach that we had a section 501(b) which
adds this as a point of defense.
It is a puzzle to me, Mr. Chairman, why the CIA is insistent
upon this.
The only thing that you can say is apparently they are very
uncertain of their own cover, that they feel that their cover is not
adequate. If somebody, through unclassified sources, figures out
who their agents are and so identifies those agents and the CIA
wants to be able to prosecute those people, it tells me they obvious-
ly are very uncertain of their cover.
Now, there have been a lot of statements by Mr. Carlucci and
others who have said that they are confident of their cover, that
their cover is adequate. If they were confident of their cover, that
their cover was adequate, and that you were sure that unclassified
sources could not identify agents, then I think this amendment
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87
would not bother them. But it does bother them, which means, as I
say, Mr. Chairman, I think they really are concerned that their
cover is not adequate.
But the question is, How do you go about correcting that? Is the
best way to improve cover, or is the best way the bill we have here
which allows you to prosecute people who reveal the names of
agents even though they are using totally unclassified information?
Anyway, I think it is dangerous. We are bordering onto some-
thing very dangerous here, Mr. Chairman, and I felt very strongly
about it at the time the bill was marked up in the Intelligence
Committee, but I must tell you very honestly there was very little
support there for my concerns.
Mr. EDWARDS. Thank you very much, Mr. Aspin.
Without objection, the entire statement will be made a part of
the record.
The gentleman from Ohio, Mr. Seiberling?
Mr. SEIBERLING. Thank you. I think you raised some of the very
basic objections that are troubling us. Nevertheless, I must say that
there is some validity to the other point of view. I remember when
I was stationed in London during World War II there was a build-
ing across Grosvenor Square from the American Embassies. I knew
a lot of people in the OSS. They were former classmates.
When you said what are you doing, they would say, "Oh, I'm in
the OSS. ' I also knew where they worked. Every so often I would
say to someone going in that building, "You must work for the
OSS." They would always say, with shocked surprise, "How did you
know?"
I would say, "Well, everybody that knows anybody knows that
that is where all the OSS people work."
OSS was the predecessor to the CIA. Yet I don't suppose that
many people outside of the armed services knew that that is where
the OSS worked. Or even if they did, that that necessarily got back
to the Germans.
So I can see something to be said for not limiting this bill to
truly classified information.
On the other hand, there is another aspect to this.
The quote you have in your statement from Justice Brandeis
brings it to mind. I think that the transmittal to Germany during
World War II of unclassified information about the location of
airplane factories and how many planes they were producing, that
sort of thing, is nevertheless very important strategic intelligence,
and in wartime it is very difficult to get that kind of information
out of a country and into the hands of the other side, even if it is
printed in the newspaper.
So we do have some intelligence problems, and what I think we
contend with is where we draw the line and how we do it in such a
way that we don't penalize the legitimate gathering of news and
dissemination, because I can see, as you point out in this statute, if
it is applied broadly, the prosecutorial authorities can get any
newsman they want who is dealing in the subjects that relate to
intelligence, because I don't think it is possible not to reveal the
names of some of the operatives or to reveal information that will,
I should say more appropriately, reveal information that itself
would lead to that kind of publication.
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I am not sure I know what the answer is, but we must be very,
very careful. That is the most important point you made, I think.
Mr. AsPIN. I agree. I think it is a very, very difficult subject.
We all know how difficult it is to write laws that apply to a
particular case, which is really what we are doing here.
We are taking almost a single publication and trying to write a
law to prohibit its existence. That is a very, very difficult thing to
do without having side effects that are unforeseen at the time the
law passes.
Mr. SEIBERLING. I think your point is well taken in one other
respect.
It might very well lull the agencies themselves into not doing the
kind of job they ought to be doing to preserve their secrecy. It was
the fault of the OSS that everybody in town who knew anything or
knew anybody in the military knew where all the OSS people were
and therefore could see who was going in and coming out.
It seemed to me that that was sloppy security, and that it didn't
need to be that way. In fact, I took delight in seeing the shock on
people's faces when I would say, "Oh, you must work for the OSS,"
because it was kind of needling them on what a lousy job they were
doing.
Mr. AsPIN. Exactly.
If I could elaborate too, I think the majority leader mentioned
the Welch case when he was here testifying a little while ago.
That is another case where it was really a case of bad cover
rather than anything else that caused the Welch case to happen.
What had happened was that Mr. Welch was indeed identified by
the Covert Action Bulletin as a station chief, but was identified as
the station chief in Peru where he was.
After Peru, he was assigned back in the United States for a
while and then, after 1 month or 2 months of that, he was reas-
signed to Athens. At the time he was assigned to Athens, he
became the station chief in Athens and the house, which the sta-
tion chief lived in, is very much like the office that you are talking
about. Everybody who is anybody on the inside knew that that
building was where the OSS people were.
Everybody in Athens knew that that house was the house of the
station chief for the CIA in Athens. It was well known out on the
street that that was his residence.
When Mr. Welch was shot down by terrorists in Athens it was at
his house. To trace that back to his identification as the station
chief in Peru 4 months earlier by the Covert Action Bulletin is a
very, very long and tortuous trail back.
That is not to say that what the Covert Action Bulletin did was
right, but it is not clear that there was that connection between
the publication and the fact he was shot down. It might as easily
have been the fact that the terrorists were going to go after the
station chief, everybody knew where the station chief lived, and
that is how the gentleman was fingered.
Mr. EDWARD. The time of the gentleman from Ohio has expired.
The gentleman from Illinois, Mr. Hyde.
Mr. HYDE. I regret that I was forced to miss the testimony from
our distinguished colleague, Mr. Aspin. Let me pick up on the
colloquy preceding my opportunity to question. Several people may
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know where the station chief lives, but when it is widely publicized
in an aura of discredit, the screwballs who want to become heroes
are alerted, accessibility is heightened, and jeopardy to the agent is
enhanced.
There are an awful lot of nuts out there whose motive is, of
course, to interdict, impede, and obstruct our intelligence efforts.
That is pretty good effective obstruction when an agent is assassi-
nated.
Mr. ASPIN. I agree.
What I am saying is not that the Covert Action Information
Bulletin is right, it is just that at the time Mr. Welch was killed
there was, I think, an attempt on behalf of the CIA-and I blame
Bill Colby for this ever since-an attempt to turn what happened
there against the publication of this information and against the
Covert Action Information Bulletin.
Mr. HYDE. Let's look at the coincidence then. Let's look at the
Welch incident following on the publication. What about the inci-
dent in Jamaica?
Mr. ASPIN. That is a much better case.
Mr. HYDE. How much time elapsed from the publication to the
assassination of Welch? Does anybody know?
Mr. AsPIN. Oh, yes; 4 months. The Covert Action Information
Bulletin identified Welch as being the station chief in Peru, which
is where he was. After Peru, he went to Washington; then after
Washington he was assigned to Athens, and it was in Athens that
he was killed.
Mr. HYDE. Would you say there was no connection?
Mr. AsPIN. I would say there was no connection.
Mr. HYDE. It is arguable?
Mr. AsPIN. It is arguable. I think 4 months apart, in the wrong
country. I think the Jamaica case is a very different case.
Mr. HYDE. You will concede that?
Mr. AsPIN. Yes. That seems to be very clear.
Mr. HYDE. I have no further questions.
Mr. EDWARDS. Mr. Drinan?
Mr. DRINAN. Thank you, Mr. Chairman.
Thank you, Mr. Aspin.
I commend you for the amendment that you offered. I have two
things to explore.
First, the Justice Department caved in along the way somewhere
in that they said originally-and you quoted-such a proposal
marches overbroadly.
Did the Attorney General sign off on the new interpretation, on
the new thing that they would allow?
They resisted it? They said it was unconstitutional?
Mr. AsPIN. Yes. As I understand it, they have.
Mr. DRINAN. Is there anything in writing from Mr. Civiletti that
he agrees with this?
Mr. Chairman, we will leave that on the record.
Mr. AsPIN. I would like to have you ask somebody else.
Mr. DRINAN. Would you agree with the testimony of Ford
Rowan, who is following you, when he says that this plan is not
going to be successful?
Let me quote him:
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Frankly, I do not think that any of these proposals, whether containing the intent
provision or not, would prove successful. If the Government cannot stop the disclo-
sure of atomic secrets, I doubt it can stop disclosure of the names of some of its
spies. Spilling atomic secrets seems much more threatening to national survival.
Do you think this is ill-fated?
Mr. AsPiN. I think that is probably correct. I think if this legisla-
tion passes the chance of that publication continuing in its current
form is zero, but to say that it will put them out of business and
that they can't ingeniously devise some other form in which that
publication can come into existence under a different guise, I think
is not true.
I think people are very ingenious and that if we pass this bill
that will put that particular publication out of existence, but like
the phoenix, it will rise in some other form.
Maybe we have to have another bill to go after that.
Mr. DRINAN. I tried to persuade the representative of the CIA
yesterday about that. As a matter of fact, if they took legal action
against this, naming names would be in the Washington Post, the
Times. The end would be worse than the beginning. These people
would be more subject to attack all around the world.
It seems to me this is the wrong solution for what is obviously a
problem.
We have jurisdiction, as you know, only on the FBI aspect of this
particular bill. Strategically, is this a battle that we should contin-
ue to fight or is it lost already?
The locomotive has gone? The majority leader is for it, the CIA is
for it, the Justice Department is for it.
Can we stop it? If anger is the basis for change of heart, we
should think again. It is anger.
Mr. ASPIN. It clearly is. We are trying to do something specific
with a law that is written, as all laws have to be, in general terms.
You are asking about the political climate. My guess is the political
climate is there to pass this bill. I think it is very, very difficult.
You know the mood in Congress and what it is like. It is very
much in favor of doing something and it is almost a case of let's do
something and let's get it passed.
Mr. DRINAN. One last question, Mr. Chairman.
Mr. Aspin, do you think that the addition of the language "with
the intent to destroy" really washes? Does that add anything?
Mr. AsPIN. I don't think so.
Mr. DRINAN. It is not workable?
Mr. ASPIN. I don't think so.
Mr. DRINAN. Thank you very much. I yield back the balance of
my time.
Mr. EDWARDS. The gentleman from Wisconsin, Mr. Sensenbren-
ner.
Mr. SENSENBRENNER. Mr. Aspin, in the Intelligence Committee,
you offered an amendment-which I believe was supported only by
yourself-which would add a provision exempting disclosures of
information that was part of the public record.
I feel there are many instances where information may be public
but not widespread and the real harm comes when it is published.
Isn't that a substantial harm we should address in this legisla-
tion?
Mr. AsPIN. Yes, I think it is.
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What we are balancing is the needs of what we are trying to do
here in this bill with the Constitution and the rights of free speech
and the need to protect journalists and others in pursuing their
legitimate function.
It seems to me it is indeed possible that something could end up
in an obscure magazine and then, under my amendment, be justi-
fied for publishing in something that is more widely disseminated.
Then you would have to go and prosecute the publisher of the
original article, the obscure magazine.
In other words, if my amendment were in effect, and Jim Jones
published in an obscure article some information and then Jack
Smith read that and republished it in, let's say, the New York
Times, you wouldn't go after Jack Smith because he could say,
"Look, I got it from this article published by Jim Jones."
You would have to go and try to get it from Jim Jones.
Without my amendment, you could go after both Jack Smith and
Jim Jones.
Mr. SENSENBRENNER. The publishers of the Covert Action Infor-
mation Bulletin have filed a statement with this committee that
states, in part, that their publication of names in each case is
subsequent to their having been first published elsewhere. The
statement then goes on to describe that they use various publica-
tions, such as the Marks article on "How to Spot a Spook," diplo-
matic lists published overseas by foreign governments, and State
Department rosters that, until 1974, were published and available
through the Government Printing Office.
I also have the latest compendium of this nature, called Dirty
Work 2, which has several hundred pages of names. I would like to
read the paragraph preceding the listing of names. It says, "The
value of this list will vary from user to user, but the editors hope
that researchers may find many helpful applications of the infor-
mation. As these people transfer from post to post, their past
connections and activities will be known. In addition, the historical
application of this information can be extremely helpful to every-
one interested in the political struggles that involve and have
involved American intervention. By relating the dates and loca-
tions of assignments to political events in the countries involved
and the years in question, important interrelations can be discov-
ered.
The entire thrust of this book is to dismantle the Central Intelli-
gence Agency.
Given this description of how these people assimilate the infor-
mation that they publish under "Naming Names," including the
case of the gentleman murdered in Athens, and that this "Naming
Names" is published precisely for the purpose of blowing an
agent's cover when he is transferred from post to post, how does
your amendment address these cases where people have actually
been killed as a result of such publications?
Mr. AsPiN. The thing is when you ask Frank Carlucci about this
aspect of the problem, he will tell you that they must have been
doing it by getting inside information, either from having been in
the Agency, or provided by people on the inside.
He claims that their cover is not that bad and that there is no
way that you can identify all those numbers of people without
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having access to classified information, but he is very schizophrenic
about this thing.
Sometimes he seems to be saying one thing and sometimes he
seems to be saying the other.
On the one hand, he says the cover is adequate. On the other, he
says we need the authority to go after people who get their infor-
mation from unclassified sources.
My guess is that it is something of both. Most of that information
is, in fact, gathered from classified information, either that they
got on their own or from inside sources.
But, second, that the cover is not so good and that, in fact, you
can identify in a number of cases station chiefs-John Seiberling's
case of the OSS working in that one building, or the Welch case
where the station chief always lived in the same house.
It is easy to fall into that kind of a pattern and not keep up good
cover.
I think what John Seiberling was saying is a good point. If you
have the ability to go after people and prosecute people getting
their information from unclassified sources, it is going to make it
easier to fall into sloppy habits about cover.
Indeed, you know, the real enemy may or may not be publishing
the information in public places. If the KGB can identify American
CIA agents abroad, they are going to be able to make some use out
of that, whether it is published or not.
So if we have sloppy cover, it makes it easier not only for people
who are publishing the information to get the access and the
names of CIA agents, but also for foreign intelligence agencies,
which don't publish it but make good use of that information, to
get it.
So I think improvement of cover is terribly, terribly important
regardless of what percentage of those names are gotten from
classified sources or not.
I think that it is important to have good cover and I think that
the amendment that I am proposing would encourage that.
Mr. SENSENBRENNER. Do you think it is right for somebody to
publish 193 names along with their backgrounds, stations, dates of
birth, and language proficiencies in a book like this that anybody
can buy?
Mr. AsPiN. No, I don't.
Mr. SENSENBRENNER. It seems to me that your own bill, H.R.
6820, which you introduced on March 17, contains a provision
similar to the one which you propose for H.R. 5615, but it is
available for "public" information only if the U.S. Government
itself reveals the informational. This more limited defense is, of
course, part of H.R. 5616, as report by the Intelligence Committee.
Have you had a change of heart on this issue since you intro-
duced your bill on March 17?
Mr. AsPiN. Yes. The bill, as we were drafting it in the Intelli-
gence Committee, as we began to write it, as we began to look at
that, and as I began to look at that 501(c), I think that 501(c) is
really a different thing here. We are talking about prosecuting
people who have not had-for that matter, under this bill, may
never have had-access to classified information.
Mr. EDWARDS. The time of the gentleman has expired.
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Mr. SENSENBRENNER. I ask for 3 additional minutes.
Mr. EDWARDS. Without objection, so ordered.
Mr. ASPIN. I think that is important.
Mr. SENSENBRENNER. One last question which gets me back to
this bill and your own bill.
You said that you believe the publication of names in the format
that it is used in this book, "Dirty Work 2," and in the Covert
Action Information Bulletin, is not in the national interest. Yet the
authors of both of these publications say that their express purpose
is to destroy covert activity by the Central Intelligence Agency
around the world and that all of the information they have assem-
bled in this book and in their periodical is from public sources,
such as State Department lists and diplomatic lists published by
foreign governments.
Have you come up with any constructive suggestions on how we
can stop books like this from being used by enemies of the United
States?
Mr. ASPIN. Yes. I think the bill with my amendment would do
that because I think that they are getting most of their informa-
tion from classified sources, and I think that they have had access
to classified sources, and so what we are talking about in this bill
is not the section 501(c) that we are talking about here, "whoever
in the course-" it doesn't say that.
The authors of that book come under section 501(a), "whoever,
having or having had authorized access to classified information
that identifies a covert action or whoever, as a result of having
authorized access to classified information, learns the identity of a
covert agent."
The authors of that book fall under those two sections.
Mr. SENSENBRENNER. But, isn't this a "catch 22" for the Justice
Department and the CIA? By requiring the prosecutors to prove
that the information was gleaned from classified sources, they have
to disclose the classified sources at trial. This is similar to the
problems involved in prosecuting people under the present espio-
nage laws which have given rise to the introduction of this bill.
Mr. ASPIN. No. I was thinking of wording it that way, but the
amendment is very carefully done to avoid that thing.
You see, what section 502(a) says, "It is a defense to a prosecu-
tion to say that the information was public."
It is a defense to a prosecution to show that the information was
already public. In other words, the Government doesn't have to
prove it, but the defense attorneys may use it as a defense if the
case comes to trial.
Mr. SENSENBRENNER. But, then the burden of proof shifts back to
the Government. The defense attorney can quote this book as a
public document, and then, in order to overcome that, the prosecu-
tion has got to prove that it came from a classified source. Thus,
they would have to reveal that classified information was being
utilized, which blows the classification completely.
I think that you put the prosecution in a catch-22 situation
under these circumstances. If they want to say the classified infor-
mation was revealed in an unlawful manner, they themselves must
reveal the classified information.
This puts us right back to square one and the guilty go free.
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I yield back the balance of my time.
Mr. AsPIN. If I may respond, the answer to that is that you are
already in a catch-22 situation, in part, because in order to pros-
ecute, you are, in effect, admitting that the thing is correct.
I mean, what you are saying here, in all of these things, is that
the person is identifying agents, and whether my amendment is in
there or not, that is a very difficult issue.
Your committee and our committee are already involved in the
question of this problem in other aspects of prosecution, but the
difficulty always is that by initiating a case you have already then,
in a sense, admitted that the information that has published is
true, and that is always a difficult choice to make.
Do you ignore information which has come out and which is
certainly accurate on the grounds that if you don't prosecute it,
then maybe your enemies think the information is not correct?
Or do you go after the authors of the information and thereby, of
course, tip your hand that the information was, in fact, damaging
and correct?
That is true whether that amendment that I am talking about is
in there or not.
Mr. EDWARDS. The time of the gentleman has expired.
The gentleman from Kentucky.
Mr. MAZZOLI. Again I would like to thank the chairman for his
indulgence in the subcommittee and welcome my friend, Les, with
whom I serve on the Intelligence Committee.
First, I think it is evident that Les' concerns about the subject
matter, particularly what is now 501(c)-which I think at one time
was 501(b)-is a reason why (c) is drafted the way it is, where you
have two hurdles, two separate intents, the pattern and practice
which has to be committed in order that the net and the openings
in this net are as large as possible so only the real fish that we are
going after-and that is the Covert Action Bulletin-type informa-
tion-is netted.
I would like to address for one moment the gentleman's colloquy
with the gentleman from Illinois, Mr. Hyde, as to the Welch case
and the case in Kingston.
I think it is obviously important to try to nail things down as to
the causation, but I think-and Les, maybe you can address a few
comments to this-it came to us on the Intelligence Committee
that of the 20-odd people in Kingston who were named along with
the station chief, that this caused quite a bit of confusion down
there.
People had to leave the country; Jamaican nationals were identi-
fied as CIA agents; other Federal officials were identified errone-
ously as CIA people, and had to leave the country.
I wonder if you would address yourself for a moment to the fact
that it doesn't take a killing, it doesn't take a threatened death to
achieve the purpose here of thwarting the intelligence function.
I wondered if there might be some feeling on your part toward
that aspect? That is, once they name the people, once that sort of
book is published, hundreds of people are rendered virtually inef-
fective as undercover agents?
Mr. ASPIN. I agree entirely. I think, as you say, it doesn't take
physical danger, but the possibility of physical danger that is
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enough to threaten to disrupt the whole operation, and an added
danger to the Jamaica case was that they did not get it all correct;
that some of the people identified as CIA agents were, in fact,
American employees there, but not CIA agents.
Well, these people in those kind of situations, their life is in
danger too. All of that says I have a great deal of sympathy for
what people are trying to do in this bill. I think that it is impor-
tant that somehow we try to do something with it.
I am just pointing out that under section 501(c) as written, I
worry about the implications and whether that section cannot be
used to go after people and to prosecute people who I am sure
nobody on this committee or nobody on our Intelligence Committee
really intended it be used against.
Mr. MAZZOLI. It seems to me-and I couldn't agree with you
more, and I think you made that point rather successfully at the
committee meetings-but if I read 501(c) correctly, we, the Govern-
ment, would first have to establish a course of an effort to identify
and expose covert agents, which is a pattern and practice, not just
a casual, once in a while kind of movement or activity, but a
planned, programed, patterned effort to expose covert agents; not
simply to show the mischief that a covert action program of the
Nation does; not to show disgruntlement about excesses or what-
have-you, but the specific pattern and program has got to be to
identify and expose covert agents.
I think that is one hurdle. Of course, you have two separate
intents: That pattern and program has to be itself with the intent
to impair and impede, and then a disclosure of the particular
information which is being cited as to itself be disclosed with the
intention to impair and impede.
It does seem to me that we have enough protections in here so
that the publications like the New York Times and others who
occasionally get into this field would really not be affected, and at
the same time we are protecting against the kinds of disclosures
which, while not leading to death or even imminent danger of
death do, because of their very mischievous nature, render hun-
dreds of people, not all of them CIA people, incapable of perform-
ing their government function.
I think that this is where the difference of opinion is. A kind of
501(c) is very approriate.
I thank you.
As I say, I think you have led an important effort.
Mr. ASPIN. I think we had a similar discussion in the Intelligence
Committee. I understand what you are saying about the double
hurdle. I look at that double hurdle and think it is better than
nothing and better than it once was.
But I still can envision a series, let's say a magazine or a newspa-
per series, a five-part series which would fall into a pattern, and it
was an attempt to identify covert agents, in order to impede or
impair the foreign intelligence activities because they were really
trying to stop it.
I could see a legitimate series that would fall into that category
which could be prosecutable under this.
Mr. MAZZOLI. Thank you.
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Mr. AsPIN. If I could, Mr. Chairman, just to correct the record, it
has been handed to me by my staff man that we were referring
to-in the Welch case-to the Covert Action Information Bulletin.
At the time of the Welch case, the magazine was called Counter-
spy-
It later became the Covert Action Bulletin.
The record should reflect that at the time of Mr. Welch's death,
the magazine that he was identified in was called Counterspy.
Mr. EDWARDS. Wasn't the time lag 2 years rather than 4 months?
Mr. AsPIN. I thought it was 4 months, but you may be right.
Mr. EDWARDS. We will correct the record.
Well, we thank you very much, Mr. Aspin. We are perplexed, as
you can see. We want to do the right thing.
Mr. AsPIN. It is not easy, Mr. Chairman. There are good argu-
ments on all sides of it.
Mr. EDWARDS. I might observe that government agencies and
government police for a couple of hundred years have found the
first amendment and the Constitution and the Bill of Rights rather
inconvenient and often very irritating to them.
We have another such case now.
Mr. AsPIN. Thank you very much, Mr. Chairman.
Mr. EDWARDS. Our next witness is Mr. Ford Rowan who, as both
a lawyer and a journalist, is uniquely equipped to discuss the
legislation before us.
Mr. Rowan is currently a visiting associate professor of journal-
ism at Northwestern University. He is also with the law firm of
Sanford, Adams, McCullough & Beard, where he specializes in first
-amendment and communications law.
Prior to taking on those two jobs, Mr. Rowan was a
correspondent for NBC television news.
Mr. Rowan, welcome. You may proceed.
TESTIMONY OF FORD ROWAN, ASSOCIATE PROFESSOR,
NORTHWESTERN UNIVERSITY AND ATTORNEY, SANFORD,
ADAMS, McCULLOUGH & BEARD
Mr. ROWAN. Thank you for your invitation to testify today. With
your permission, I would like to put the statement in the record.
Mr. EDWARDS. Without objection, it is in the record.
[The information follows:]
TESTIMONY OF FORD ROWAN
Mr. Chairman, thank you for the invitation to testify. When I first examined this
issue I was reminded of a statement attributed to Bismarck. He warned that
national security would be imperiled if certain things were not shielded from the
average citizen. Bismarck said the citizen should not see how laws are made nor
shou
There are
ld he see how sausages are made. some the CIA to protect ithings ents and the FBI to protect littsinformants with the desire of
the NSA to
protect its sources and methods, and the DIA, the DEA, the IRS, and the other h use
sources
surpri someone whochas reported on sial ome of these sec et acti i ies, but reporters hear th also from
have confidential sources to accomplish our jobs. Porters also must
I am willing to go to jail to protect the identity of a source who gives me
information, so I can understand why the CIA wants to send someone to jail if he
reveals the identity of one of the agency's agents.
Furthermore, I sympathize with the desire to shield American intelligence officers
and agents from publicity which could endanger their lives.
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However, I have serious reservations about whether this proposed legislation
would prove to be effective. Moreover, parts of the proposal seem to be unconstitu-
tional.
Although I have tried to avoid letting where I sit determine where I stand on this
issue, let me describe my own background. I have been a reporter for 15 years,
eleven of them in Washington. I resigned from NBC News in December because I
felt that NBC was irresponsible in broadcasting a half hour unedited program from
Teheran which feature a monologue from a spokesman for the Iranian terrorists.
The so-called hostage program provided a prime-time propaganda platform for ter-
rorists.
After my resignation from NBC I became a visiting professor of journalism at
Northwestern University. In April I joined the law firm of Sanford Adams, McCul-
lough, and Beard, a North Carolina firm, as their counsel in Washington. As a
lawyer I am specializing in First Amendment and communications law.
I am also doing some work as a commentator for a new organization, the Inde-
pendent Network News, which now has 30 television stations around the country.
Although it is not always easy to pursue both legal and news activities, for the
purpose of discussing the subject matter before this committee today I may have a
unique perspective.
I first became involved in reporting on the CIA and other intelligence agencies in
1974 for NBC News, and most of my time until early 1978 was devoted to this
subject. In 1978 my book about surveillance and privacy, Technospies, was published
by Putnam's.
During the course of the investigations of these agencies I learned both the best
and the worst about the people who serve their country in the intelligence commu-
nity. Most of them are honest, intelligent, patriotic. Some, however, fit this descrip-
tion: ". . men of zeal, well-meaning, but without understanding." That quote is
from Justice Brandeis who warned that "the greatest dangers to liberty lurk in the
insidious encroachment of men of zeal, well-meaning, but without understanding."
The disclosures of recent years, although widely condemmed by some as under-
mining the effectiveness of the CIA, may actually have helped intelligence officers
regain an understanding of their duty within the constitutional framework. The
harsh spotlight of publicity may have helped the CIA refocus its energies away from
law-abiding American citizens onto its true targets.
Of course, reporters in their rush to expose illegal and ill-advised covert activities
also run the risk of becoming zealots who mean well but lack the understanding to
fit their stories into a broader perspective.
My own hunch, however, is that when future historians look back at this period
they will conclude that the nation was strengthened by the disclosures of official
wrongdoing in Watergate, the domestic surveillance and foreign assassination plots,
the FBI's covert action program directed against Americans (COINTELPRO), the
misuse of tax records, the massive eavesdropping on overseas communications.
Exposure of these lawless activities was fought on the grounds that national secu-
rity could be endangered. But a nation's true security sometimes depends less on
which secrets it keeps than upon which values it upholds.
My purpose is not to lecture this committee's conservatives on the importance of
preventing another instruction of the government into the private sector any more
than I want to remind the liberals of the need to protect civil liberties. Rather than
sling slogans around let me say that I am impressed by the careful effort that this
committee and the two intelligence committees have shown in balancing competing
values. The two intelligence committee bills, H.R. 5615 and S. 2216, are better than
some I examined back in January.
But I still think that this legislation is unworkable and unconstitutional. First, I
think Congress is within its power to tell government employees they cannot di-
vulge classified information of any kind, including the names of covert agents. My
only problem is that I do not think it will work. Some people will leak information
no matter what the rules, no matter what the penalties. An insider who feels
strongly enough that a clandestine operation is wrong and is willing to disclose it
probably, will base his decision on whether to also name names on reasons unrelated
to potential criminal penalties.
Second, as to the category of non-government employees, the outsiders that these
bills target, my objections are much more strenuous. This category would include
the press and other private persons. Unlike CIA or military intelligence officers,
reporters have taken no oath to keep secrets. Congress should not, in effect, try to
force reporters into a secrecy oath. Reporters violate their responsibility as dissemi-
nators of information when they are forced into keeping secrets rather than permit-
ted to evaluate whether what they have learned should be published.
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Let's face it: most reporters just do not usually come across this kind of informa-
tion, few pursue it, and very few want to name names at all. Believe it or not, many
reporters believe in many of the same values as you. Most are patriots, but the day
is past when simply waving the flag will convince a reporter or editor to kill a story
without exceptionally compelling reasons.
Few reporters want to see intelligence operative's life endangered by having his
cover blown, or to see an ongoing secret mission derailed, or to see future sources of
information vital to this country's defense simply dry up for fear of exposure. On
the other hand, too many reporters have seen the phrase "national security" used to
try to hide embarrassing and illegal conduct by government agencies.
In covering the investigations of abuses in the intelligence agencies and in writing
my book I cannot recall a single instance in which I named the name of a covert
operative or of one of my sources inside the intelligence community.
But I can conceive of instances where disclosure of names might be in the public
interest. Remember the uproar over alleged assassination plots against foreign
leaders a few years ago. When it became known that the CIA had engaged in such
plots there was disagreement within the government over whether such activities
were ordered from the White House or whether the agency was acting as a rogue
elephant out of control. The public had an important stake in finding the answer to
that question. Official investigators recognized the importance of identifying some of
those involved and names were made public.
Some might argue that certain disclosures could be made by the press under this
legislation provided the reporter was not intending to impair or impede the foreign
intelligence activities of the United States. While inclusion of the intent provision in
some of these proposals is an improvement over the CIA's recommended language,
it would not solve the dilemma posed by the example listed above. Reporters who
named names to get at the truth about the assassination plots usually were opposed
to such plots and wanted to assure they did not recur. People who revealed such
plots and the plotters wanted to impair this form of intelligence activity. Most
reporters may have hoped that disclosure would help the United States regain its
moral stature, regain some of the respect it had lost in the world, regain a steady
hand over covert actions, still they wanted to impair and impede this one type of
intelligence activity.
And there are other types of intelligence activities that ought to be impaired
because they impaired the civil liberties of American citizens. Disclosure of assassi-
nation plots, drug experiments, spying on law abiding American citizens has helped
our nation's interest in preserving freedom at home.
In sum, it is a mistake to decree that all foreign intelligence activities of the
United States equally merit secrecy. Some should be exposed, denounced, dismem-
bered. Congress should not pass legislation that would interfere with the First
Amendment right to expose illegal, immoral, and unethical conduct.
The First Amendment was designed to protect the press as it criticized the
government. The First Amendment is a safeguard for those who want to stop
certain activities they consider wrong. And while I have argued that most journal-
ists are not going to blow an agent's cover, there are those outside the mainstream
of journalism today who are quite willing to take such drastic action. We may agree
that it is repugnant when Philip Agee or the Covert Action Information Bulletin
exposes an agent's identity, but before trying to put them in jail, remember that the
First Amendment was designed for people like the editors of the Covert Action
newsletter. The constitutional safeguards have come to apply to big institutions like
the New York Times, but they were initially meant to protect the Thomas Paines,
the individuals who put out pamphlets critical of the government.
Deputy Director Carlucci testified before the House Intelligence Committee that
reporters who disclose this secret information would only be prosecuted if they
upon a crus ade " t o des troy t he intelligence activities of this coun
"embark try. But
the legislation recommended by Director Turner in February would open the door
for wholesale prosecutions of a broader class of offender. Instead of requiring proof
of intent to harm intelligence activities, the CIA proposal would punish anyone who
discloses such information as long as he had the knowledge that his disclosure is
based on classified information. If a reporter knows the identity of a secret agent
and knows, it's a secret, he would be liable if he published it.
The CIA proposal talks of protecting "successful and efficient foreign intelligence
activities," but our nation has always been willing to sacrifice some efficiency to
protect democracy and freedom. And overly broad criminal provision giving the CIA
bureaucrat with a secret stamp the power to stamp out free expression is too big a
price to pay for efficiency.
Frankly, I do not think that any of these proposals-whether containing the
intent provision or not-would prove successful. If the government cannot stop the
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disclosure of atomic secrets I doubt that it can stop disclosure of the names of some
of its spies. Spilling atomic secrets seems much more threatening to national surviv-
al.
The H bomb articles were based in part on unclassified information available in
government libraries open to the public. That's relevant to our discussion today,
because this bill would punish a reporter who combed through open sources such as
biographical registers to identify covert officers. The government extracts a high
price from journalists when it seeks to punish them for revealing what the govern-
ment itself was too inept to keep secret.
It is well known that for years it was possible to identify CIA personnel on
embassy staffs by checking State Department registers. The government itself made
it easier for outsiders to figure out the identities of CIA operatives. So before you
try to punish the outsiders I think you could tighten secrecy and use more care in
choosing those who will know the secrets.
That is the path I would recommend for you: strengthening the internal processes
for intelligence agencies while avoiding new prohibitions which would unconstitu-
tionally interfere with freedom of the press.
Democracy works best that knows most.
Some conflicts between the press and government are healthy-symptomatic of a
dynamic society with competing values. An independent press with watch dog func-
tions, the tradition of open criticism, the disclosure of corruption, the reform of
institutions-these all contribute to a vibrant society.
Society-the public-pays a price when government attempts to seal off part of its
activities from public view. In some cases the courts have sided with national
security, due process and privacy rights in limiting access to information by the
media. In other cases the courts have evaluated, then decided against, claims that
publication of certain information would harm the national security.
First Amendment guarantees may not be absolute, but they should be tampered
with only very cautiously. These proposals are unnecessary, unworkable, unconstitu-
tional.
Mr. ROWAN. I would like to say first of all I sympathize with the
goal of this legislation. It is politically attractive.
I think there are many good moral reasons for trying to proceed
with this.
I know as a reporter I always wanted to protect my sources. I am
willing to go to jail to protect the identity of my sources so I can
understand why the CIA would want to put those in jail who would
reveal their sources.
Furthermore, I want to protect lives also. I attended the burial of
Mr. Welch. I wouldn't like to see things like that recur.
Furthermore, I feel the House Intelligence Committee has done a
very good job of trying to build in protections for the press in this
bill.
I commend that committee and the Senate Intelligence Commit-
tee for grappling with these issues and understanding the first
amendment issues involved.
Furthermore, I personally find the Covert Action Information
Bulletin repugnant. I was embarrassed after I testified before the
House Intelligence Committee-at the invitation of the minority-
when selected excerpts of my testimony were reprinted in the
Covert Action Information Bulletin.
Sometimes you feel like a defense attorney for a pornographic
magazine facing an obscenity charge. I do believe in this case the
first amendment permits magazines like the Covert Action Infor-
mation Bulletin to publish, and when I first read this legislation I
thought something about it reminded me of a bill of attainder.
In fact, in the Senate Intelligence Committee, when they had me
testify, the listing at the top of the witness list after the bill
number says the Agee bill.
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It just smacked of something designed to punish a selected cate-
gory; in fact a selected person, Philip Agee, and the editors and
reporters who may work on this Covert Action Bulletin.
It is not a bill of attainder. I looked up the law on that. It doesn't
punish past behavior. It does seek to punish future criminal activi-
ty. It does provide judicial safeguards, but there was something else
about it that bothered me.
It seemed like something out of the colonial period before the
Bill of Rights was enacted to secure certain liberties for Americans.
It reminded me of seditious libel prosecutions. We are used to
thinking of truth as a defense to libel actions, but here in the
Senate bill I found it penalized disclosure "of any individual who in
fact is or has been such an agent."
In other words, if the disclosure is true.
In seditious libel in the colonial period, truth wasn't a defense.
The greater the truth, the greater the crime. Critics of Government
make their point more effectively when they are telling the truth.
The truth really hurts in these types of cases. This is aimed at
critics of the Government and their case is strengthened when they
name names.
That is true even when mainstream journalists, journalists with
big institutions like the New York Times, go after agencies like the
CIA.
Their case was strengthened in the Seymour Hersch articles in
late 1974 on alleged domestic surveillance by the CIA. His case was
strengthened by naming James Angleton.
I believe that the first amendment was designed for people like
the Covert Action Information Bulletin.
It was designed for men like Tom Paine who printed pamphlets.
It has come to apply to big institutions like the New York Times.
Don't forget what it was designed to do before you decide that
you will make criminal the reporting of names of our agents
abroad.
In terms of mainstream journalists, I should say they can be
ensnared by this legislation despite the hurdles that have been put
in the intent provisions, despite the fact there has to be an effort to
identify with the intent to impair or impede foreign intelligence
activities of the United States.
Let me remind you of the news stories about alleged CIA plots to
assassinate foreign leaders; of CIA and Army drug experiments; on
the interception of American communications overseas by the
NSA; the CIA spying on American citizens; on FBI counterintelli-
gence covert action programs directed against Americans, Cointel-
pro.
The reporters who investigated those abuses wanted to know who
was behind them, wanted to know the names, not necessarily that
they printed them, but they wanted to find out in the course of
trying to find out the truth of those allegations.
No. 2, many of the reporters who wrote about those stories
wanted to impair or impede those activities.
In short, some intelligence activities-in the very recent past-
should have been impaired and impeded and denounced and ex-
posed and halted.
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I think those exposes strengthened this country. Very often you
have to judge what helps national security. I think setting those
agencies on the right course strengthens national security. This
country may not be judged so much by the secrets it keeps as by
the values it upholds.
Finally, I think just as a practical matter, reporters who have
taken no secrecy oath should not be required to keep the Govern-
ment's secrets when the Government is too inept to keep them
itself.
I must say from my experience both here and overseas that it is
not very difficult to find out who works for the CIA, in many cases
when the cover is very light, when a CIA officer is carried on the
diplomatic rolls, or when his activities are pretty open and well-
known in foreign countries.
I think that the first course of action that I would recommend to
the Government is to try to keep its secrets better before it goes
chasing after reporters who may expose them.
In closing, I am reminded of the statement by Archilochus, the
Greek poet, who said, "The fox knows many things, but the hedge-
hog knows one big thing."
It is easy to understand how the hedgehogs of intelligence bur-
rowing in pursuit of their goals would resent the foxes of the press.
The reality of the world we live in forces us to have hedgehogs.
The ideal of the democracy we cherish requires that we tolerate
the foxes as well.
Thank you, sir.
Mr. EDWARDS. Thank you, Mr. Rowan.
The gentleman from Massachusetts, Mr. Drinan?
Mr. DRINAN. Thank you, Mr. Chairman, and thank you, Mr.
Rowan.
Before I make a comment, I want to say we miss you every night
on the tube.
Mr. ROWAN. Thank you, sir.
Mr. DRINAN. I agree with your sentiments and your reasoning. I
find it difficult to ask any question except this: What in your
judgment would be a technique to stop the locomotive and the
steamroller that is obviously rolling very intensely?
Mr. ROWAN. I would defer to a Member of Congress as to the
best strategy to try to handle this issue when it comes to a prag-
matic consideration like that.
I might say also we will miss you soon.
I would say that I thought the majority leader's bill looked like it
didn't have the provisions that I most strenuously object to. And
Mr. Aspin's bill looks like it is better than the committee bill. That
is my own perspective.
I don't know that you would be able to stop the locomotive by
substituting either of those bills.
Mr. DRINAN. I take it you would have no difficulty with the
original Jim Wright bill cosponsored by Mr. Aspin?
In other words, that would be the ideal situation, but I--
Mr. ROWAN. I don't think it is workable. I said that in my
testimony. You read part of that.
Mr. DRINAN. Classified information.
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Mr. ROWAN. Regarding classified information, and the disclosure
by someone who has authorized access to it, I think the Govern-
ment is within its power to stop its employees from leaking or
divulging that type of information.
Mr. DRINAN. Yesterday the CIA said if the Aspin bill passed they
would have no interest in the legislation. They don't feel the origi-
nal bill would help them in the predicament.
Would you agree with what was said yesterday and to some
extent today, that there is a certain hysteria running after the
July 4 incident?
Mr. ROWAN. Yes, perhaps that is true.
Mr. DRINAN. Would you also agree that they are inflicting on
themselves a wound because they will have all types of notoriety
about the individuals mentioned in the magazine, that they are
doing what the Justice Department did, it seems to me, with the
magazine.
They are asking for the revelation across the world of the facts
they want to keep secret.
Mr. ROWAN. I think you are right about that. They are making
this an issue that might otherwise, with time, go away, especially if
they tightened their own security precautions and the names were
not forthcoming in the volume they have in the past.
One could conceive of this whole thing drying up in time, solving
itself.
I would like to see that happen. Certainly I think if you make a
big issue of it, if you try to prosecute people, one or two things are
going to happen.
No. 1, you will have a highly publicized test case on your hands,
or, No. 2, the people who put out these kinds of magazines are
going to shift their strategy, perhaps have foreigners put it out.
Perhaps they would start the article by saying, "We approve of
all these activities but we believe the American people have the
right to know."
If you are the prosecutor deciding to prosecute on the basis of
that, you might think twice before you haul those people before a
grand jury. Your could have trouble showing intent to impair or
impede foreign intelligence activities.
If, in fact, they are defectors-I don't know that is true, but I
have heard my CIA friends describe Agee that way. If he is a
defector, he is certainly not above lying. He is not above saying,
"Well, my motives are quite different," and in fact running around
the intent provision while serious, responsible journalists might
run right into the intent provision if they decide there is a pro-
gram that should be exposed.
I am not talking about the people with the Covert Action Bulle-
tin, but other journalists, like those with the New York Times, who
decide to expose a problem. They may run into the intent provision
because they can't lie their way around it.
Mr. DRINAN. Would you think there is any hope of the law being
constitutional if we added the provision in the Senate bill; namely,
a pattern or practice?
Mr. ROWAN. That helps. I think all those hurdles help, but I still
think the bill is constitutionally infirm.
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Mr. DRINAN. Thank you for coming. We thank you for your
statement.
Mr. EDWARDS. Mr. Mazzoli?
Mr. MAZZOLI. Thank you very much, Mr. Chairman. Welcome,
Mr. Rowan. You were of help to us when we drafted the bill in the
Intelligence Committee. I appreciate your comment that it is a
better bill now than it was then.
I think if it is better, your focusing on some of these issues
helped us.
I am a little bit concerned about what you say about the people
who would resort to circumvention of these various hurdles and
would even lie.
I was always led to believe it is the moral purity of their cause
that led them to do these things; that they were so motivated by
these overriding and overwhelming personal issues and world
issues that it led them to divulge these names in order to purge the
system of its basic evil. And yet, if I understand you, you say you
think they could resort to lying about it and that they are not
above that, Mr. Agee specifically.
I think maybe if that is the case, our law makes all the more
sense. In other words, we are trying not to get to the legitimate
news outlets, but we are trying to get to these people who have no
moral standards, who have very little probity and honesty about
them because they will resort to such subterfuges as you yourself
indicated, and I think it just does point out the fact that something
has to be done about the people who would not let truth stand in
their way of reaching some sort of a goal.
Mr. ROWAN. I understand that dilemma, sir.
Once again, I am not predicting what they will do. I generally
take people's motives at face value. What they say they mean is
what I accept unless I have reason to believe otherwise.
I am only quoting back to you what some people I know in the
CIA have said about Agee. If, indeed, they are right, that his
motive was to undermine this Nation, that he was a defector, I
don't think he would be above lying. I don't know that is the case. I
don't mean to comment really. I don't know.
All I am saying to you is I don't think the legislation, No. 1, is
workable. No. 2, the broad scope tends to ensnare people that I
don't think you mean to. Fifteen years from now maybe a judge
will read the legislative history of this and decide, well, we will let
this guy off. But how many thousands of dollars will some reporter
have to spend to fight off the Justice Department prosecution?
Maybe 20 or 30 years from now, if the pendulum swings in the
direction of a more oppressive society-and we have been through
those kinds of things before.
You write legislation now but you can't always predict who will
be on the losing end of it 15 or 20 years from now.
Mr. MAZZOL!. My friend who left the room, the gentleman from
Massachusetts, Mr. Drinan-whom I will say also will be very
much missed around here-spoke in his statement a moment ago
about the sort of hysteria, a hysteria which has gripped the Nation,
perhaps kicked off and triggered by the situation in Kingston, and
that has led to this.
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That wave of hysteria has led to this bill. I would, with respect to
my friend, differ. I don't think it is hysteria at all. I think it is a
realistic view that there are some people who are so mischievous
and so basically reprobate in their attitudes toward the Govern-
ment-you know, that is, the overall Government of the United
States; not men within it or women within it-that they would
resort to these kinds of heinous things.
I just would say I don't think there is a hysteria. I think it is a
matter that that has focused our attention on the problem, and I
think the fact is that this bill doesn't lash out, it doesn't intention-
ally try to get responsible journalists, even though they may have a
mind set against the CIA and will divulge information which comes
to them on the doorstep.
It does try to get only the pattern and practitioners of this sort of
thing.
Again I say, Mr. Chairman, thank you for the time and the
indulgence of your committee. I would thank Mr. Rowan. He did
help us draft a much better bill than we began with.
Mr. ROWAN. Thank you for those comments. I do think the bill is
better than when I first saw it in January or February.
Once again, all I can say is, I am not trying to defend what the
Covert Action Bulletin folks have done. I am only defending their
right to do it.
Mr. MAZZOLI. Thank you very much, Mr. Chairman.
Mr. EDWARDS. Thank you, Mr. Rowan. I think you have added a
new dimension to the case by your very excellent testimony.
The Constitution is a burden; there is no doubt about it. I re-
member many, many years ago, almost the first case I read on
freedom of speech in law school. It took place in a little quiet
Midwest town. They were having a parade. It was during the
hysteria-there really was hysteria during the early twenties about
Russia going Bolshevik as we called it in those days.
A parade was going down the main street. Everybody was having
a wonderfully peaceful time. From the second floor of the First
National Bank Building a couple of anarchists held out a big red
flag and waved it. Fights started, they went up and beat them up.
They were arrested by the police and they were reprehensible
people. They wanted to cause trouble. They waved the flag just to
irritate and enrage the peaceful townspeople who were walking
down the street.
Yet the court said, "I know their conduct might be terrible; a lot
of people got hurt and everything else. It is still protected by the
Constitution."
The police found the first amendment very, very inconvenient in
that case.
The CIA is finding the first amendment very inconvenient here,
and I frankly don't know what to do about it. I am personally
convinced-and I might say that I suggested to the gentleman from
Illinois, Mr. McClory, that he was incorrect when he said the
Intelligence Committee-and perhaps Mr. Mazzoli can correct
me-had constitutional lawyers testify from outside the committee
or the Government to the effect that section 501(c) is constitutional,
that it doesn't have serious constitutional problems.
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We have, the staff and I, especially the staff lawyers, examined
the testimony rather carefully, and we have found no lawyers from
outside the Department of Justice or the committee that have said
that. Do you know of any?
Mr. ROWAN. No, I am afraid I don't. Not offhand.
Mr. EDWARDS. I would have thought they could have found one
or two anyway.
Mr. MAZZOLI. Mr. Chairman?
Mr. EDWARDS. Yes.
Mr. MAZZOLI. I can't swear there were lawyers and professors
who said it was constitutional. I think if the record were carefully
examined, some would probably say they couldn't really make the
statement positively that it was definitely constitutional, but they
also couldn't say that positively, definitely it would be held to be
unconstitutional.
I think clearly this 501(c) is a delicate section, one which does, if
not carefully drawn, spill over into what our chairman has said is
the constitutionally protected area.
I think the Justice Department lawyers, of course, are reason-
ably qualified to at least make a venture into this uncharted area.
I do think the committee did take into consideration the very
questions raised by this legal community and by gentlemen like
Mr. Rowan and then went back to the drawing board and rewrote
the bill so those comments in many cases are with respect to what
was then 501(b).
Mr. ROWAN. If I could comment on the balancing act which
would be taken into consideration in judging the constitutionality
of this case. Following the suggested line of discussion you had
about the burdens, I would note that in February Admiral Turner
suggested this legislation was necessary to protect the successful
and efficient conduct of foreign intelligence.
Well, efficiency is something you have to balance, but I don't
think that the first goal of our system has always been efficiency,
neither in criminal prosecution nor in the conduct of all of our
affairs.
It is an important consideration, but in some cases our liberties
are more important than the efficiencies of government actions.
Mr. EDWARDS. I might also add that an examination of the
testimony before the Intelligence Committee-and it is an excellent
committee made up of distinguished members of Congress-indi-
cates there was no testimony at all with regard to the FBI inclu-
sion. And that is the biggest number of individuals protected, the
FBI inclusion.
That could very well be thousands of informants. I don't know
how many informants the FBI has.
I know there are hundreds and hundreds of them.
Mr. ROWAN. Absolutely. We have to remember that the Cointel-
pro actions were mounted in the name of counterintelligence. Some
of the spying on the Weathermen was antiterrorist. If you include
those categories, you do make it possible that those involved in
certain abuses would be protected by legislation making it a crimi-
nal offense to reveal their activities.
Mr. EDWARDS. Counsel?
Ms. LEROY. Just one question.
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The witness from the Department of Justice yesterday stated
repeatedly that he could conceive of no legitimate need for a jour-
nalist or a private citizen to identify and expose covert agents in
the course of criticism criticizing American intelligence activities
abroad.
The Justice Department's position believes that this kind of criti-
cism can be accomplished as effectively without making those
kinds of disclosures.
I suppose the validity of this position in part at least depends
upon how you interpret the word "identify."
All the testimony talks in terms of naming names, but the bill
talks in terms of disclosing any information which identifies the
agent or the source.
In your statement you say that you have never named a name of
a covert operative; on the other hand, have you or any other
journalist that you are aware of who writes in this area ever felt
the need to disclose the location of an agent or a source or the
position that that individual holds? And, if so, did you consider
whether the information, while not in itself identifying the agent
possibly, although it could perhaps identify him, might simplify the
task for the next person to identify him?
Mr. ROWAN. Absolutely.
Ms. LEROY. If you do include this information, is it because you
think it is crucial to the understanding of the article that you are
writing? If some kind of identifying information is included be-
cause you think it is important to the article, how can you or any
reporter know when you have crossed the line to identification?
Mr. ROWAN. Well, I appreciate the question and what you are
implying in it.
First of all, I don't think the Justice Department should lecture
journalists on what stories are better than others or what informa-
tion needs to be left in or left out.
I did name names after they became known publicly even in the
cases where they hadn't been released officially.
I didn't take the initiative to release names because I found my
stories didn't require it in most cases. However, I would once again
note, some real examples: The New York Times story on domestic
surveillance was strengthened by the inclusion of James Angleton's
name. The stories about the assassination plots were strength-
ened-and the officials recognized this-the stories were strength-
ened by the inclusion of the names of those involved in the plots.
The stories about drug experiments were strengthened when the
names of the victims were released. What about the U-2 over-
flight? Other witnesses before this and other committees have sug-
gested that this bill would prohibit naming Francis Gary Powers in
news stories before the Government conceded, yes, indeed, he was
our CIA pilot over there.
To write about things in general and leave out the specifics does
not make as powerful a case or as good a story in terms of journal-
istic quality.
Indeed, on a different level, I believe that reporters have a re-
sponsibility to suggest as much of the facts as they feel they can in
a story even when writing about their own sources because in this
town people leak things all the time. For the readers of stories to
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understand what motivated that story to appear in print or on the
air, it helps to know, for example, that the source was someone in
the State Department, or someone in the National Security Council
staff at the White House. That alone tells you a lot.
I think that to leak names is repugnant, but this town has
leaked and leaked and leaked and in fact the executive branch does
most of it. I will close on this one note, a long answer to a long
question, and I am sure I didn't cover all the points you wanted.
I will close on this point: I took a great deal of satisfaction in
seeing one of the endlessly repeated stories about overseas trips by
our Secretary of State in which the story kept quoting a senior
American official who could not be named. Those were the ground
rules.
The Washington Post printed a picture of Secretary Vance and
the caption, "Senior American Official." I think that named the
name, even though it was not of the kind we are addressing today.
Ms. LEROY. Thank you very much.
Mr. EDWARDS. Ms. Owen.
Ms. OWEN. Thank you, Mr. Chairman.
Let me make sure I understand your position on the constitution-
ality of the bill.
Do you have constitutional problems with sections 501 (a) and (b),
or is it only 501(c) that gives you constitutional concerns?
Mr. ROWAN. I think that the provisions that deal with people
who have authorized access to classified information are probably
constitutional.
The Government has the power to tell its employees that it
cannot divulge secrets. My problem really involves outsiders who
have taken no secrecy oath and who have no fiduciary duty to the
Government to keep the secrets.
Ms. OWEN. So it is merely 501(c) that troubles you?
Mr. ROWAN. In terms of a constitutional problem, I question
whether any of it will work.
Ms. OWEN. That is my second question.
In your statement, you indicate that, as a practical matter, sec-
tion 501, in its entirety, might not be effective because it might not
deter people whose decision to disclose was based on reasons unre-
lated to potential criminal penalties. The bottom line of your thesis
seems to be that if somebody has certain reasons for disclosing
these names and they are bound and determined to disclose, they
will do it irrespective of the criminal penalty.
Doesn't that argument really apply to any kind of criminal legis-
lation that the Congress might choose to pass, including, say, legis-
lation on 'assassinating public figures?
Mr. ROWAN. Or robbing banks, of course. It may not prove to be
workable. It may deter all of them. What I am saying is when you
deal in the area of basic civil liberties, one should balance the
workability of a program against its intrusion into the lives of
Americans.
So workability is a standard but not, of course, a compelling one.
Ms. OWEN. Do you have an estimate as to how many people
might be deterred or not deterred?
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Mr. ROWAN. No, I wouldn't hazard a guess on that. All you need
is one guy on the inside, depending on what place he is in, what
kind of information crosses his desk, in order to do a lot of damage.
I wouldn't attempt to be an expert witness on the problems of
security inside the CIA because you could get far better people
from that Agency and the FBI to discuss that issue.
Ms. OWEN. It is a balance between how many people might be
deterred versus how many people would proceed to disclose names
anyway.
Mr. ROWAN. Certainly.
Ms. OwEN. Your prediction, for example, might be different from
the prediction made by the CIA.
Mr. ROWAN. Absolutely. Their prediction actually might be
better. However, I have had things come in over the transom, as
we call it, with discreet information inside it, and, as I say, that
doesn't mean that I immediately run out and broadcast it; it just
meant that it happens and it happens with great regularity when
there is sort of a crisis in morale within an agency.
When an agency is unsure of its own role, and that characterizes
CIA in the last few years, but I think they can work their way out
of that, so they have fewer disgruntled and confused employees
who are worried about the real mission of the Agency.
One thing they can do, of course, is clean up their act. I think
they are cleaning it up. Quite frankly, I think things have im-
proved since a few years ago, but I am not so certain that I would
hold my breath that they can never recur, the abuses we saw in
the last few years.
On the other hand, I think if the Agency knows what its mission
is, if its employees recognize that the highest standards are going
to be obeyed, you will get fewer leaks from inside an agency.
That is why I argue that the No. 1 thing that this Government
can do to protect the identities of its informants and its agents and
its employees, is to clean up itself internally in terms of what these
agencies do to protect the secrets and make sure the secrets are of
value so they should be protected. Not everything should simply be
stamped with a secret stamp-things that are embarrassing, and in
some cases illegal. We have seen too much of that.
Ms. OWEN. You have suggested in your response that there
might be a morale problem in the CIA because the CIA is doing
things it ought not to do, and that, as a result, people are inclined
to leak things that they really should not be leaking because of
their employment trust relationship.
What about the morale problem CIA has now? We have had
testimony to the effect that this type of legislation is the primary
concern of Agency employees. Morale is very low; and they cannot
recruit employees and informants.
What about that interest? Don't we have to balance that against
the first amendment interest?
Mr. ROWAN. Well, certainly I think that you can consider wheth-
er the Agency for example is able to get a foreign official to be
willing to cooperate with the CIA. He may fear that his identity
would become known, that it would become known that he received
money. That is not something you can disregard in your consider-
ations.
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I am making the strongest argument I can in favor of the first
amendment but I certainly couldn't argue that other things are not
important also. It is a balancing act.
I think you have to judge workability; you have to judge these
morale factors against what you are talking about, which is intru-
sion into the basic rights of Americans. That is something that
should be done only very cautiously and in urging caution I am not
suggesting an absolute standard.
The courts have made it pretty clear the first amendment is not
absolute no matter what reporters may want it to be. So I just
suggest that that standard be the one that you go by, that we be
very cautious in this kind of thing.
I think Mr. Mazzoli's committee has been. I just don't like the
output.
Ms. OWEN. Do you feel that the current version is more cautious,
as you would put it, than the original version?
Mr. ROWAN. Yes, I said so.
Ms. OWEN. Thank you, Mr. Chairman.
Mr. EDWARDS. Thank you very much, Mr. Rowan. It has been
very, very helpful testimony.
Mr. ROWAN. Thank you.
Mr. EDWARDS. Our last witness and a patient witness, is Mr.
Robert Lewis, the chairman of the Freedom of Information Com-
mittee and a member of the Society of Professional Journalists,
which he is here representing, as well as other press organizations
and associations which are concerned about the legislation before
us.
Mr. Lewis, we are delighted to have you here and you may
proceed.
TESTIMONY OF ROBERT LEWIS, CHAIRMAN, FREEDOM OF IN-
FORMATION COMMITTEE, REPRESENTING THE SOCIETY OF
PROFESSIONAL JOURNALISTS AND SIGMA DELTA CHI
Mr. LEWIS. Thank you, Mr. Chairman. With your permission, I
will make a few brief remarks and if the statement can be printed
in the record.
Mr. EDWARDS. Without objection, it will be made a part of the
record.
[The information follows:]
STATEMENT OF THE SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA DELTA CHI, DE-
LIVERED BY ROBERT LEWIS, CHAIRMAN OF THE FREEDOM OF INFORMATION COM-
MITTEE
Thank you, Mr. Chairman, for this opportunity to discuss the Intelligence Identi-
ties Protection Act. My name is Robert Lewis, and I am a Washington correspon-
dent of Newhouse News Service and chairman of the Freedon of Information
Committee of the Society of Professional Journalists Sigma Delta Chi. The Society,
as you may know, is the oldest, largest and most representative organization of
journalists. Founded in 1909, we have 300 chapters and more than 30,000 members
in all branches of communication and journalism education.
The Society agrees with the objective of H.R. 5615, which is to prevent the
intentional disclosure of the identity of covert American intelligence agents, infor-
mants and sources of assistance for the purpose of undermining U.S. intelligence
capabilities. Prosecution would commence only upon a showing that disclosure was
made "in the course of and effort to identify and expose covert agents with the
intent to impair or impede" U.S. intelligence work.
This language of Section 501(c) apparently is intended to place coventional news
reporting on intelligence matters beyond reach of the bill. We are not sure it does.
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We can conceive of situations where H.R. 5615 could have a chilling effect on vital
and necessary news coverage.
The threat of criminal penalties for disclosing the identities of past or present
agents or informants of the Central Intelligence Agency might have deterred jour-
nalist from investigating and reporting the CIA connections of some of the Water-
gate burglars.
Last spring the White House was reported to have been the source of leaks about
details of the Iranian hostage rescue mission, resulting in stories that may have
compromised CIA agents and sources in Iran. Would journalists who investigated
and wrote those stories be subject to prosecution?
Would the Washington Post reporter who wrote that the leader of Jordan was
involved with the CIA be prosecutable? What about reporters whose stories identi-
fied Francis Gary Powers as the pilot of the downed U-2 spy plane?
It could be argued that the "effort to identify" test of Section 501(c) would prevent
reporters from being prosecuted. But a journalist who is assigned to cover the
intelligence community on a regular basis may indeed establish a pattern of report-
ing the names of agents or sources in the course of legitimate coverage of the CIA.
It also could be argued that the "intent to impair of impede" test of Section 501(c)
would keep reporters from coming under the scope of the bill. But a reporter who
exposes CIA wrong-doing presumably knows that such stories "impede" the CIA's
effectiveness.
The Society has no quarrel with Sections 501(a) and 501(b), which make it a crime
for anyone with past or present access to classified information to disclose an
agent's identity. But we believe Section 501(c), which criminalizes the reporting of
information taken from public records, i.e. nonclassified information, is nonconsis-
tent with this nation's constitutional guarantee of free speech and free press.
We would urge that criminal penalties be applied only to individuals who have, or
have had, access to classified information, or to individuals who have actively
pursued the unauthorized access to classified materials.
We realize this could make it difficult to prosecute Louis Wolf, the private citizen
who has publicized the identities of covert agents. But we think America's 200-year
free speech-free press tradition is too great a sacrifice to make to force an end to
Mr. Wolf's activities, through enactment of H.R. 5615.
As I understand it, Mr. Wolf maintains his CIA lists are derived from information
available to the public. If true, it suggests that the intelligence agencies need to
assess their classification and document-distribution policies.
If H.R. 5615 becomes law, in this or another version, we think it should be a
defense to prosecution that an agent whose identity was disclosed had been violating
the federal Constitution, laws, regulations or policy statements or policy statements
of Executive Branch agencies.
Several former CIA agents have written books about their experiences, some of
them critical of U.S. intelligence activities. These whistle-blowers would be subject
to prosecution under H.R. 5615 for disclosing their own CIA connection. To protect
CIA whistle-blowers-those who seek to publicize questionable or illegal actions of
the CIA-we suggest that it should not be an offense for an individual to disclose
information that solely identifies himself as a covert agent.
Finally, Mr. Chairman, if the intention of Section 501(c) is to place conventional
news coverage beyond reach of H.R. 5615, we believe it is important to make this
clear in the bill's legislative history, so as to provide guidance to the courts. Thank
you.
Mr. LEWIS. I have been authorized to say that two other press
organizations, the Association of American Publishers, which is a
trade association of book publishers, and the National Newspaper
Association, which represents 2,000 community newspapers, would
like to also associate themselves with this statement.
Mr. Chairman, H.R. 5615 presents reporters with a dilemma. I
don't think you will find any support in the press for what Covert
Action Bulletin is attempting to do. We fear that section 501(c),
however, is an intrusion on the first amendment, and is unconstitu-
tional, at least its constitutionality is highly questionable, earlier
witnesses have testified.
We also recognize that in today's climate some kind of action is
likely to emerge in this Congress.
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We would simply urge, No. 1, that if it is the intent of the House
not to include so-called mainstream news reporting, for want of a
better term, in the net that 501(c) casts, that we would hope that
you would make that clear in the legislative history of the bill as it
comes out of the committee and goes to the floor; No. 2, as you
know, several former CIA agents have written books about the
Agency, books that have been critical about specific operations.
We feel most of those books have been in the spirit of being able
to criticize and hold up to public accountability a Government
agency, which is the right of Americans under the first amend-
ment. Under the bill before you, as I understand it, the mere fact
of authoring such a book-having the author's name appear on the
book jacket as a former member of the CIA or as a former covert
agent-would be a violation of section 501 (a) or (b).
We would suggest that it should not be a prosecutable offense for
a former agent to disclose information that solely identifies himself
as a covert agent.
Thank you.
Mr. EDWARDS. Well, thank you very much. You and the people
you represent are chiefly concerned about 501(c) which, in your
testimony, you feel that criminalizes the reporting of public infor-
mation, information in the public domain?
Mr. LEWIS. That is right.
Mr. EDWARDS. And you feel that it would imperil the activities of
legitimate newspaper people?
Mr. LEWIS. We cite several cases and other witnesses have cited
other cases. As I think your counsel points out, there are a lot of
ways to identify an agent without actually naming him, and one
case that comes to mind that was recently in the news were the
stories that came out of Washington, ostensibly leaked by people in
the Carter administration, about some of the details of the Iranian
hostage rescue mission. The stories presumably were leaked to try
to show the American people that this was a mission that had a
chance to succeed.
We read later that some of those stories may have compromised
CIA agents or our sources in Iran, and may have actually led to
the ability of the Iranians to identify American sources or agents.
Would the reporters who wrote those stories be in violation of
H.R. 5615? We think it is a good chance they might.
Ms. LERoY. I suppose the response from the White House to that
situation would be that they did not, even assuming they admitted
the leaks, that they did not do that with the intent to impair or
impede the foreign intelligence activities of this country.
Do you find that additional standard of much comfort in this
bill?
Mr. LEWIS. I think that improves the bill and I assume inclusion
of it was to try to exempt from prosecution mainstream news
reporting. But you might say the bill section, 501(c) particularly, is
a loose cannon on deck.
Press lawyers don't know for certain what it might do in the way
of restricting press coverage. At the very least the prosecution of a
citizen of the United States for publishing information that is on
the public record I think is a grave step that Congress should not
take without having given it a lot of thought and without having
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good grounds. And I am not sure shooting down Covert Action
Bulletin is worth the damage this bill would be to the first amend-
ment.
Ms. LERoY. You have a sentence in your statement about sup-
porting a defense or adding a defense that an agent whose identity
was disclosed has been violating the laws of this country. That is
the first time I have heard that particular idea expressed in con-
nection with this bill.
I wonder if you would elaborate on it a little more?
Mr. LEWIS. Well, if a journalist reporter were being prosecuted
for a violation of section 501(c), if he could demonstrate that what
he reported was for the purpose of disclosing and in fact did dis-
close illegal activity on the part of a CIA covert agent, that that
would be a defense to his being prosecuted.
This would give additional protection to journalists in general
and would also not hamper the kind of reporting that I would
think Congress would like to encourage.
If a reporter has information that a CIA covert agent is plotting
to assassinate a foreign head of state in violation of law or Execu-
tive orders, and he wrote a story to that effect and named the
agent, and then he was thrown in prison for doing it-I don't think
this is what you are trying to get at.
Mr. EDWARDS. The CIA witness yesterday said that in that case
the reporter should report it to a congressional committee, over-
sight committee, and not write a story about it.
Mr. LEWIS. The prudent reporter might do both simultaneously.
Ms. LERoY. How would you get at the situation that is alleged to
be going on in Jamaica where apparently some people believe that
the CIA may not be engaging in activities that are illegal in this
country, but they are engaged in a process of destabilizing the
Jamaican Government?
A few years ago that was a process that people in this country
were very concerned about when it happened in Chile. But it is
probably not illegal in this country to do that.
I assume you would argue that for journalists to write an article
about that would be a legitimate thing for a journalist to do if in
fact it were going on. Do you see any protection in this bill for that
kind of journalistic activity?
Mr. LEWIS. I am not a lawyer, but I would suspect that if a
reporter wrote one or a series of hard-hitting stories about efforts
to destabilize any government, and did identify American citizens
who were working for the CIA and others as being a part of this
effort. I can't conceive of writing this kind of story or series with-
out saying who was doing it. If I were the CIA and the Justice
Department, I would go after them and it would be up to a jury
and a judge to determine whether it would be a violation.
Ms. LERoY. Thank you.
Mr. EDWARDS. Ms. Owen.
Ms. OWEN. Thank you, Mr. Chairman.
I would like to clarify something that you said earlier.
Is your concern in connection with individuals revealing their
own covert relationship with the CIA? Does that apply when they
are in fact operating as covert agents, or merely to disclosure of
past covert activities?
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Mr. LEWIS. I had reference only to former agents. I am not aware
of any present agents who are writing books.
Ms. OWEN. So your only concern is with respect to people who
formerly had this relationship and might want to disclose it after
they terminated their relationship with the Government?
Mr. LEWIS. Right.
Ms. OWEN. Do you think that that exemption would be appropri-
ate immediately upon termination of the employment relationship
or after a certain amount of time had expired? At what point is it
appropriate?
Mr. LEWIS. I think immediately on termination of the relation-
ship.
Ms. OWEN. Would you be less concerned if the bill permitted
disclosure of that relationship after a certain amount of time had
passed?
Mr. LEWIS. That would be better than nothing.
Ms. OWEN. Would 5 years be unreasonable?
Mr. LEWIS. That would be better than nothing. The bill as writ-
ten, would prohibit books by former agents unless they were writ-
ten on an anonymous basis.
Ms. OWEN. I am not entirely certain that my reading of the bill
is the same. I think there is a grace period in there.
You would be more supportive if that were in fact what the bill
provided rather than a perpetual ban, correct?
Mr. LEWIS. Yes.
Ms. OWEN. Thank you.
In your statement, one thing that interested me was that you
urged the application of criminal penalties to, and I am quoting
here, "individuals who have actively pursued the unauthorized
access to classified materials."
Could you elaborate upon this and explain exactly what kind of
situation you think ought to be criminalized?
Mr. LEWIS. We think if a reporter comes into possession of infor-
mation and writes a story about it, passively comes into possession
of information, that this should not be grounds for prosecution
under 501(c). But if any individual actively, say, seeks out someone
with access to classified information which would leak the identity
of a covert agent and seeks out that person and coerces him or gets
him to give him that information, we could conceive under those
circumstances that that should be a prosecutable offense under
501(c).
Ms. OWEN. How would we define that in a cautious manner, to
use the word of the last witness, in order to avoid infringing upon
his first amendment rights to associate with that individual or his
rights to discuss things with that individual?
Mr. LEWIS. How would you define that?
Ms. OWEN. How would we define that? I am trying to understand
precisely what you would consider to be criminalistically offensive
and yet constitutional under the first amendment?
Mr. LEWIS. I am not a lawyer and I am just expressing an idea
and not how that idea can be translated into statutory language.
Ms. OWEN. One of the situations that section 501(c) addresses is
the situation like the one you described in your statement. Any
assistance you could give in drafting would be helpful.
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I have no further questions.
Mr. EDWARDS. Thank you very much, Mr. Lewis. It is very help-
ful.
Mr. LEWIS. Thank you, Mr. Chairman.
Mr. EDWARDS. The subcommittee is adjourned.
[Whereupon, at 4:25 p.m., the subcommittee was adjourned.]
ADDITIONAL MATERIAL
HOUSE OF REPRESENTATIVES,
COMMITTEE ON THE JUDICIARY,
Washington, D.C July 28, 1980.
Hon. THOMAS P. O'NEILL,
Speaker of the House,
Washington, D.C.
DEAR MR. SPEAKER: On July 25, 1980, H.R. 5615, as amended was reported
favorably by the House Permanent Select Committee on Intelligence. That bill
applies criminal sanctions to individuals who reveal the identities of certain U.S.
intelligence agents.
As you know, Rule XLVIII of the Rules of the House of Representatives, establish-
ing the House Permanent Select Committee on Intelligence, provides for sequential
referral of "any proposed legislation initially reported by the select
committee ... containing any matter otherwise within the jurisdiction of any
standing committee . .
Because section 501(a) of the bill applies to anyone who has authorized access to
classified information that identifies a covert agent, the bill in all likelihood covers
those FBI agents who, because of their roles as counter-intelligence agents, may
have access to the identities of other covert agents whose identities intended to be
protected by this bill. Under certain circumstances an FBI agent could be subject to
criminal penalties for revealing the identity of that covert agent.
Moreover, as the bill was introduced, it applied only to disclosure of the identities
of intelligence agents from the CIA and the Defense Department, and only those
agents serving outside the United States. It did not apply to foreign intelligence and
counter-intelligence agents serving in the United States, or to any agents of the FBI,
domestic or foreign. The amendment in the nature of a substitute reported by the
Committee does include certain agents of the FBI.
Because the Judiciary Committee has jurisdiction over the FBI, and over intelli-
gence matters within the U.S. I believe the Judiciary Committee should have an
opportunity to consider H.R. 5615 through a sequential referral.
Also, there is an important First Amendment dimension to the bill: section 501(b)
has been described as having a chilling effect on the press and on private citizens
because of its overbreadth. The problem of the conflict between the First Amend-
ment and the requirements of national security in terms of the need to maintain
the secrecy of classified information is an issue the Judiciary Committee is consider-
ing in the context of the Subcommittee on Civil and Constitutional Rights' upcom-
ing hearings on prepublication review and secrecy requirements imposed by law or
by contract on current and former federal employees. One of the issues the Subcom-
mittee will be exploring in these hearings (which begin on July 29) is whether the
goal underlying the imposition of such secrecy agreements is not better served by
the imposing of criminal sanctions for revealing classified information, including
the identities of secret agents and confidential sources. Proposing such criminal
sanctions may thus be one of the results of the Committee's efforts in this area.
For these reasons, I respectfully request that H.R. 5615 be sequentially referred to
the House Judiciary Committee for a reasonable period of time in which to raise
some of these important questions, which are properly within the jurisdiction of
this Committee.
Sincerely,
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