PROPOSALS TO CRIMINALIZE THE UNAUTHORIZED DISCLOSURE OF THE IDENTITIES OF UNDERCOVER UNITED STATES INTELLIGENCE OFFICERS AND AGENTS HEARINGS BEFORE THE SUBCOMMITTEE ON LEGISLATION OF THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE HOUSE OF R

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200080008-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 167
• Document Creation Date: December 21, 2016
• Document Release Date: October 31, 2008
• Sequence Number: 8
• Publication Date: January 31, 1980
• Content Type: OPEN SOURCE

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PROPOSALS TO CRIMINALIZE THE UNAUTHORIZED
DISCLOSURE OF THE IDENTITIES OF UNDERCOVER
UNITED STATES INTELLIGENCE OFFICERS AND AGENTS
HEARINGS
SUBCOMMITTEE ON LEGISLATION
PERMANENT
SELECT COMMITTEE ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
NINETY-SIXTH CONGRESS
U.S. GOVERNMENT PRINTING OFFICE
63-2130 WASHINGTON : 1980
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PERMANENT SELECT COMMITTEE ON INTELLIGENCE
(Established by H. Res. 655, 95th Congress, 1st session)
EDWARD P. BOLAND, Massachusetts, Chairman
CLEMENT J. ZABLOCKI, Wisconsin J. KENNETH ROBINSON, Virginia
BILL D. BURLISON, Missouri JOHN M. ASHBROOK, Ohio
MORGAN F. MURPHY, Illinois ROBERT McCLORY, Illinois
LES ASPIN, Wisconsin G. WILLIAM WHITEHURST, Virginia
CHARLES ROSE, North Carolina C. W. BILL YOUNG, Florida
ROMANO L. MAZZOLI, Kentucky,
NORMAN Y. MINETA, California
WYCHE FOWLER, JR., Georgia
THOMAs K. LATIMER, Staff Director
MICHAEL J. O'NEIL, Chief Counsel
PATRICK G. LONG, Associate Counsel
JEANNE M. MCNALLY, Clerk
SUBCOMMITTEE ON LEGISLATION
MORGAN F. MURPHY, Illinois, Chairman
ROMANO L. MAZZOLI, Kentucky ROBERT McCLORY, Illinois
WYCHE FOWLER, JR., Georgia JOHN M. ASHBROOK, Ohio
EDWARD P. BOLAND, Massachusetts
BERNARD RAIMO, Jr., Counsel
IRA H. GOLDMAN, Counsel
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CONTENTS
Wednesday, January 30,1980_______________________________________ 1
Thursday, January 31,1980________________________________________ 105
LIST OF WITNESSES
WEDNESDAY, JANUARY 30, 1980
Testimony of Hon. James C. Wright, Jr., a Representative in Congress
from the 12th Congressional District of the State of Texas ------------ 3
Testimony of Hon. Frank C. Carlucci, Deputy Director of Central In-
telligence, accompanied by Mr. Daniel Silver, General Counsel, Central
Intelligence Agency, and Mr. Frederick P. Hitz, Legislative Counsel,
Central Intelligence Agency_______________________________________ 11
Testimony of Mr. Robert L. Keuch, Associate Deputy Attorney Gen-
eral------------------------------------------------------------ 28
Testimony of Floyd Abrams, Esq., Cahill, Gordon & Reindel; chairman,
Committee on Freedom of Expression of the Litigation Section of the
American Bar Association________________________________________ 45
Testimony of Mr. Jack Blake, president, Association of Former Intel-
ligence Officers; and former Deputy Director for Administration,
Central Intelligence Agency--------------------------------------- 59
Testimony of Mr. Morton Halperin, director of the Center for National
Security Studies; Mr. John Shattuck, director, Washington office, Amer-
ican Civil Liberties Union; Mr. Jerry J. Berman, legislative counsel,
Washington office, American Civil Liberties Union___________________ 66
Testimony of Mr. Ford Rowan, visiting associate professor of journalism,
Northwestern University and former correspondent for "NBC Tele-
vision News"--------------------------------------------------- 84
Testimony of Mr. M. Stanton Evans, journalist and commentator, former
editor, Indianapolis News_________________________________________ 98
THURSDAY, JANUARY 31, 1980
Testimony of Hon. Charles E. Bennett, a Representative in Congress from
the Third Congressional District of the State of Florida-------------- 105
Testimony of Mr. William H. Schaap, coeditor, CovertAction Informa-
tion Bulletin, accompanied by Ms. Ellen Ray, coeditor, CovertAction
Information Bulletin and Mr. Louis Wolf, coeditor, CovertAction In-
formation Bulletin_______________________________________________ 111
Testimony of Mr. William E. Colby, Reid & Priest, former Director of
Central Intelligence______________________________________________ 126
APPENDIXES
Appendix A, material submitted for the record by Mr. Robert L. Keuch,
Associate Attorney General_______________________________________ 138
Appendix B, letter to Representative Romano L. Mazzoli from Floyd
Abrams, Esq---------------------------------------------------- 141
Appendix C, prepared testimony of Senator Lloyd Bentsen__ ___________ 149
Appendix D, H.R.3356-------------------------------------------- 151
Appendix E, H.R.3357-------------------------------------------- 152
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IV
APPENDIXES-Continued
Page
Appendix F, H.R.3496-------------------------------------------- 152
Appendix G, H.R.3762-------------------------------------------- 153
Appendix H, H.R. 4291 -------------------------------------------- 154
Appendix I, H.R. 5615 and section-by-section analysis----------------- 155
Appendix J, Department of Justice draft bill entitled, "Foreign Intel-
ligence Identities Protection Act" and section-by-section analysis-_---- 159
STATEMENTS
Hon. James C. Wright, Jr., a Representative in Congress from the 12th
Congressional District of the State of Texas------------------------- 4
Hon. Frank C. Carlucci, Deputy Director of Central Intelligence accom-
panied by Daniel Silver, General Counsel, Central Intelligence Agency;
and Frederick P. Hitz, Legislative Counsel, Central Intelligence Agency_ 11
Mr. Robert L. Keuch, Associate Deputy Attorney General------------- 28
Floyd Abrams, Esq., Cahill, Gordon & Reindel; chairman, Committee on
Freedom of Expression of the Litigation Section of the American Bar
Association----------------------------------------------------- 45
AFTERNOON SESSION-PAGE 140
\Ir. Jack Blake, president, Association of Former Intelligence Officers;
and former Deputy Director for Administration, Central Intelligence
Agency--------------------------------------------------------- 59
Mr. Morton Halperin, director of the Center for National Securities
Studies accompanied by Mr. John Shattuck, director, Washington
office, American Civil Liberties Union, and Mr. Jerry J. Berman,
legislative counsel, Washington office, American Civil Liberties Union-- 66
Mr. Ford Rowan, visiting associate professor of journalism, Northwestern
University; and former correspondent for "NBC Television News"_ - 84
Mr. M. Stanton Evans, journalist and commentator, former editor, Indian-
apolis News---------------------------------------------------- 98
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PROPOSALS TO CRIMINALIZE THE UNAUTHORIZED
DISCLOSURE OF THE IDENTITIES OF UNDERCOVER
UNITED STATES INTELLIGENCE OFFICERS AND
AGENTS
WEDNESDAY, JANUARY 30, 1980
U.S. HousE of REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
SUBc0MMITTEE ON LEGISLATION,
Wa8hington, D.C.
The subcommittee met, pursuant to notice, at 9:04 a.m., in room
H-405, the Capitol, Hon. Romano L. Mazzoli presiding.
Present : Representatives Mazzoli, Fowler, Boland (chairman of the
full committee), McClory, Whitehurst, and Young.
Also present : Thomas K. Latimer, staff director; Michael J. O'Neil,
chief counsel ; Patrick G. Long, associate counsel ; Bernard Raimo,
Jr. and Ira H. Goldman, counsel ; Annette H. Smiley and Herbert
Romerstein, professional staff members ; and Louise Dreuth and Diane
Kennedy, secretaries.
Mr. MAZZOLI. The subcommittee will please come to order.
We have the pleasure of having with us the chairman of our full
committee, the gentleman from Massachusetts, Mr. Boland, who has a
statement.
The gentleman from Massachusetts.
Mr. BOLAND. Thank you, Mr. Chairman.
First of all I want to welcome all of you here this morning to what
I am sure will be interesting hearings, today and tomorrow.
In the past several years, the intelligence activities of the U.S.
Government have been exposed to the light of public scrutiny to a
degree never before witnessed in this or any other country.
Presidential commissions, congressional committees, judicial de-
cisions, investigative reporters, have all, at one time or another, given
us a detailed glimpse of the day-to-day practices of our intelligence
agencies.
To an unfortunate degree, some of these practices were found want-
ing, wanting in terms of their compatibility with American values,
morals, laws and constitutional precepts. We have now, I believe, taken
the painful but necessary steps to bring to a halt such practices and to
insure that they do not occur again.
All of this has not been done without rancor, divisiveness, and heated
debate among our people and within the Government.
Significantly, however, both sides of the debate have always pro-
ceeded on the unquestioned assumption that it is both necessary and
proper for this country to possess a clandestine intelligence service.
The simple and obvious fact is that a clandestine service cannot
function if the identities of its undercover officers and agents are con-
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tinually being subjected to the public gaze. And this, we are told, is
exactly what is happening today.
No matter how hard I may try, I cannot come up with a sensible
political, moral, or legal reason for American citizens to intentionally
disclose the names of this country's undercover agents. The only argu-
ably acceptable reason I can come up with, disclosure of abuses or
illegal activity, does not seem to be in the minds of those who publish
whole lists of names of alleged agents, with no reference at all to any
possible illegal actions. Furthermore, we have now established honest
and responsive mechanisms such as the congressional intelligence com-
mittees, to look into charges of intelligence agency abuses.
We are thus left in the position, I believe, where a criminal statute
is necessary. The bill under discussion today, H.R. 5615, is offered by
this committee as a narrowly focused and effective solution to the dis-
closure problem.
I recognize that some of its provisions are controversial and touch
on first amendment questions. Neither I, nor I am sure, the other
members, are wedded to every section, and I look forward to an open
and frank discussion of the sensitive constitutional and legal issues
involved.
I fully expect that our final product will demonstrate that an ef-
fective intelligence collection capability is compatible with the values
upon which our democratic society is based. That is the thrust of the
Intelligence Identities Protection Act.
Thank you, Mr. Chairman.
Mr. MAZZOLr. I thank the gentleman from Massachusetts, our
chairman.
And does the gentleman from Illinois, the ranking member, have
a statement?
Mr. MCCLORY. Yes, Mr. Chairman, thank you very much. I want to
applaud the chairman in calling this hearing which I strongly sup-
port. The identities of CIA intelligence officers and agents must be kept
secret, and legislation to protect this secrecy, it seems to me, is ex-
tremely important. In other words, we.must not only protect the in-
telligence collection capabilities of our Nation, but also the liveli-
hoods, and in some instances the very lives of those who are involved
clandestinely in securing information vital to our Nation's security
interests.
The damage to our security caused by misguided disclosures is clear
and the jeopardy to the safety of the individuals involved is clear.
What is not so clear, however, is the horrible impact this has on the
people who are involved.
Mr. Chairman, consider, for instance, a CIA case officer. First he
spends months training, away from his family, sometimes in language
study, and he has physical, intellectual and emotional demands
placed upon him. In many cases he is sent off to a faraway country
to perform services vital to our national interests. On top of all this,
the CIA officer must hide his or her true work from his friends and
relatives, even from his own children.
This often goes on not for a matter of years, but for many, many
years; in some instances, even after a person retires, he must main-
tain his secrecy about his service in the CIA.
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Think of the impact that the wholesale disclosure of secret identities
has on the lives of these people. Consider also the patriotic American
businessman or woman who engages in international transactions.
While wanting to assist our foreign intelligence effort, he or she is
fearful of losing an entire business if word of cooperation with the
CIA comes out.
How can we ask for such cooperation unless we are willing to lessen
the chances of disclosure? And without being able to call on those
Americans who have significant foreign contacts, our country is truly
hurt.
For these reasons, too, congressional action is sorely needed.
Mr. Chairman, I am very happy to join in the support as a co-
sponsor of this legislation which has strong bipartisan support. It
seems to me that this is a piece of legislation which needs prompt ac-
tion, and I am happy that we have been able to call early hearings on
the measure.
Thank you, Mr. Chairman.
Mr. MAZZOLI. I thank the gentleman from Illinois, and I would
recognize the gentleman from Georgia, a valuable member of our
committee.
Mr. FOWLER. It has been pretty much covered, Mr. Chairman, ex-
cept to say that this is one of the most important issues that we have
addressed, attempting to balance our Nation's security needs and
protecting individual liberties.
There is no question that the continued exposure of our undercover
agents operating in the service of this country is a threat to our na-
tional securityy. At the same time, when we talk about putting people
in jail for releasing unclassified information, we have to tread very
carefully in legislative waters.
I believe, as we did last year with the Foreign Intelligence Surveil-
lance Act, that we will be able to balance these ofttimes competing
ends, and I look forward to the expert testimony of our witnesses,
and appreciate the bipartisanship with which the bill has been drafted,
and hope that we will be able to perform this function.
Mr. MAZZOLL I thank the gentleman from Georgia.
The gentleman from Kentucky, the acting chairman of the com-
mittee today, has a statement, but in deference to the time constraints
of the gentleman from Texas, our first witness, the acting chairman
will defer stating that opening statement.
I would at this point, though, like to mention that-and I am sure
all of my colleagues join me in expressing best wishes to the permanent
chairman of our subcommittee, Morgan Murphy, the gentleman from
Illinois, who is ill and unable to be with us today, but whose leader-
ship on the committee and on this particular issue has been on the
record for a long time.
We are honored today to welcome to our committee our first witness.
Hon. Jim Wright of Texas, the distinguished majority leader of the
House of Representatives.
Mr. Wright is the chief sponsor of H.R. 3357, which is one of sev-
eral bills before the committee. Mr. Wright's bill seeks to protect the
identities of undercover CIA agents and officers. Majority Leader
Wright has been among the earliest and most persuasive forces in
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the House urging legislative protection for undercover intelligence
personnel.
We appreciate your being here today, Mr. Majority Leader. You
can proceed as you wish, to summarize, to state your case, and to get
back to the important business of majority leadership.
STATEMENT OF HON. JAMES C. WRIGHT, JR., A REPRESENTATIVE
IN CONGRESS FROM THE 12TH CONGRESSIONAL DISTRICT OF THE
STATE OF TEXAS
Mr. WRIGHT. Thank you very much, Mr. Chairman.
I regard this particular bill as a significant part of the important
business of the majority leader's job, just as it is a significant part
of the congressional agenda.
I want to congratulate you, first of all, upon the initiative you
have demonstrated in calling these hearings. I hope they will result
in the prompt presentation of a bill to the House so that we might
pass it.
I want to appear here today to underline and to stress the im-
portance which we attach to President Carter's request for a
revitalization of the CIA and our Nation's intelligence-gathering ap-
paratus. I think we all recognize that for several years now we have
been undergoing an orgy of self-recrimination, even self-flagellation.
It has become chic in some quarters to disparage and to belittle
the CIA. But to make the Nation's intelligence apparatus the object
of scorn is damaging.
It is bad because of the deleterious effect that it exercises upon the
morale of those who must perform this delicate, dangerous and dif-
ficult task for the United States. And I have been told in conversations
with members of that Agency and with agents that it has had a
very bad effect upon morale and that many of them now look forward
only to retirement. They have lost their zest simply heeause they
haven't been able to feel that the public, that the United States
appreciated their efforts or was behind them.
But worse is being done than that, of course, and it is the worst
that these bills attempt to approach. Some zealots have carried their
hatred for the CIA one dangerous step further. They have taken it
upon themselves to expose the identity of American CIA agents
throughout the world, thus endangering their lives and deliberately
drying up their intelligence sources.
The prime example, of course, is the former CIA agent become
rogue, a man named Philip Agee, who along with associates has been
publishing a magazine with the stated purpose of exposinn CTA
agents and operations whenever and wherever they are found. Now,
that is just an absolute outrage. It is unthinkable that n nation mould
tolerate this kind of depredation, willfully committed against those
whom it entrusts to carry out so delicate and difficult a mission for the
people, for the country.
That kind of practice, of course, needs to be stopped. And It was
with that in mind that I, along with other Members of the House
and of the Senate, last year introduced proposed legislation to out-
law that kind of activity.
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Now, the bill that I introduced, in conjunction with Senator Bent-
sen of my State, would make it a crime pumsliabie in Federal courts
by up to a $10,000 tine and 10 years in jail 'for any person such as
Agee publicly to disclose information which could endanger the
lives of Americans engaged in the difiicuit, dangerous task of gathering
essential information for this country.
Now, that bill of mine is certainly not the last word, and I know
that the committee will perfect and improve that language and prob-
ably will add other provisions to whatever legislation comes out of
this committee.
But I should like to stress that the bill which I and others introduced
doesn't interfere in any way with press freedom. Its penalties would
apply only to those who have come into authorized possession of
specific information and then decide on their own to betray their oaths
of office and to betray their former colleagues, and indeed, to betray
their country.
I think the comments of Judge Gessell, in ruling negatively upon
the power of the Secretary of State to deny a passport to this man
Agee, was significant in that he suggested that the response of the
Secretary of State might be likened unto using a fly swatter when in
reality it seemed to him-a judge not known in any means for being
insensitive to civil rights- that the appropriate action might be a
charge of treason. And so it seems to me.
The mortal danger to our Nation's personnel abroad is not just
theoretical. We all know, of course, that in 1975 CIA Athens station
chief Richard Welch was murdered shortly after a magazine article
listed him as a CIA agent.
That, in turn, has had another effect which I am sure can be ad-
dressed much more knowledgeably by the witnesses who are here
today to speak for the Agency. It has poisoned the wells from which
our agents have drawn vital information in the past. It has become
much harder, I am told, to get foreign sources to cooperate with us.
The feeling seems to be that if we can't protect our own, well, we
darned well can't protect them, or won't. And so they have quit
dealing with people who are involved in our intelligence-gathering
operation.
If the identity of our intelligence agents is publicly known, then
obviously those who would be their contacts abroad are going to be
extremely wary of passing information to them or being seen in their
presence, and their value as agents is largely destroyed.
Of course, I am not talking of permitting the CIA to breek the
law. That isn't even involved in this legislation. CIA personnel, just
like all other Americans, like members of the FBI, Members of Con-
gress, the President, and everybody else, must observe the law.
There's nobody in this Nation who is above the law. But we do live
in a real world, and it is sometimes a dangerous world, and some
of this world's inhabitants plot and intrigue against us, against our
Nation and our welfare. Certainly it is in our interest to know of
their intrigues and to blunt their plots, and so we need to have a
professional capacity to anticipate what is likely to happen in remote
parts of the world.
Of course, we were surprised. as were many neople tl,rou&'ont
the world, at the forces which brought about the collapse of the
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Government of Iran, and that is very much on our minds in these
days of trouble in the Persian Gulf. We can only speculate as to the
danger and jeopardy in which the world peace and our national
interests would be put if something similar to that, God forbid, were
to occur in Saudi Arabia.
To avoid such surprises in the future and to cushion our Nation
from their effects is the very work of our intelligence agencies, and it is
legitimate work. We need to respect it and we need to protect those
who perform it for us.
And I believe that there would be overwhelming and enthusiastic
approval in the Congress and throughout the Nation, and a salutary
effect throughout the world, if we act expeditiously and affirmatively on
this legislation.
Mr. MAZZOLL I certainly thank the majority leader for his thought-
ful statement, and I would ask my colleagues, because of time con-
straints, to limit our questions to the 5-minute rule, and that includes
the acting chairman.
Mr. Wright, you mentioned early in your statement that this bill
seems to be on the agenda for the Congress for the second session of
the 96th Congress. Can I take that to mean that this is one of the pri-
ority, items on that agenda, and the Democratic leadership and the
White House are committed to the achievement of some kind of a
bill like this in this session?
Mr. WRIGHT. Mr. Chairman, I most emphatically would answer in
the affirmative. Yes, this is a priority item. It is one of the few things
that the President of the United States asked us to do, to revitalize the
CIA and our intelligence-gathering apparatus. I don't know of any
better way to do it than through this bill. I don't mean to suggest that
this is the only thing we need to do in that direction, but it is a good
first step, and yes, if this committee reports the bill, we in the leader-
ship will certainly be responsive to the requests of those handling the
bill on behalf of this committee for early scheduling. We will make it a
priority item.
Mr. MAzzoLI. Thank you.
I would follow that up with one thing, Mr. Majority Leader. This
bill is controversial, and despite the effort of this subcommittee and the
full committee, the end product will probably be controversial. It will
not please one side nor the other entirely.
Is the gentleman from Texas willing to suggest that he will put his
forensic powers to work as well as his nose-counting powers to work
in order to find a balanced approach to this significant issue?
Mr. WRIGHT. Mr. Chairman, I trust the judgment of the members of
this committee and I think you could be reasonably well assured that
the leadership would give its support to the product of this committee.
Of course, everything in this world is controversial. I suppose we could
find some controversy to almost any conclusion we would want to state
here today. But that, after all, is the warp and woof of the Congress.
That is our business and we shouldn't shrink from it.
Perhaps it is controversial. There may be some who don't feel that
we should have any intelligence-gathering apparatus. But I think those
people are few, and I am satisfied they do not speak for the American
public.
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Certainly there are legitimate concerns with regard to constitutional
rights, free speech, but I don't believe that free speech extends to the
right to put in jeopardy the life of somebody who is serving the United
States in a very dangerous task any more than it would extend to the
right of someone to divulge American troop movements in time of
war. I think constitutional rights are pretty well understood in that re-
gard, and I don't believe that the abuse of freedom is necessary to its
maintenance.
Mr. MAZZOLI. Thank you, Mr. Majority Leader.
The Chair's time has expired. The Chair recognizes the gentleman
from Massachusetts, Mr. Boland.
Mr. BOLAND. Mr. Wright, I think there is no question about the
fact that there is general agreement that legislation in this area must
be strictly limited to protecting what is in fact secret, and what is in
fact damaging to the national security.
Your bill and the bill that Senator Bentsen, your colleague from
Texas, has introduced, I think is drawn in that fashion, in that
manner, in that narrow a way, is it not?
Mr. WRIGHT. Yes; it was our attempt to draw it so. I don't have any
pride of authorship. I shall not quarrel with the chairman or with the
committee about the words that are used in drafting the legislation.
Yes, Senator Bentsen and I made an earnest attempt to draw the
legislation with some specificity, so as to protect and respect all con-
stitutional rights of all Americans, but expressly to define as a fed-
erally punishable crime the disclosure of information to which a person
had gained authorized access, and then in violation of his oath to his
country and in derogation of the rights of those Americans who faith-
fully continue to serve the country, sought to use it to expose them and
place their lives in jeopardy, and to put in jeopardy, indeed, the
Nation's capacity to gather vital information.
Now, we tried to draw it carefully, but I have no doubt that the
committee can improve upon it.
Mr. BOLAND. Your bill is a little narrower than the committee bill
and also a little narrower than some of the other proposals that have
been presented to the committee.
Your bill would target on those who had authorized access to classi-
fied information containing the identity of undercover agents and then
disclose the identity without authority. The committee bill targets in
on anyone, anyone who discloses it with specific intent to impair or
impede the foreign intelligence activities of the United States.
What do you think of the committee bill vis-a-vis your own?
Mr. WRIGHT. Mr. Chairman, I would have no difficulty whatever
in wholeheartedly supporting the language you have just described
as contained in the committee bill.
Mr. BOLAND. Thank you very much, Mr. Wright.
Thank you, Mr. Chairman.
Mr. MAZZOLI. I thank the gentleman.
The gentleman from Illinois, Mr. McClory, is recognized.
Mr. McCLORY. Well, thank you very much, Mr. Chairman.
I am very pleased to know about the new directions of the Presi-
dent with regard to the intelligence agencies, his present desire to
revitalize the CIA and other intelligence agencies, because previously
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he ordered the elimination of 820 positions, clandestine service cut-
backs, in the CIA, and those jobs were eliminated as a result of his
direction.
Also in the last Congress we enacted the so-called Foreign Intel-
ligence Surveillance Act, which limits and restricts the CIA in its
intelligence-gathering capability by requiring that with regard to
the securing by electronic surveillance of foreign intelligence, they
must go to a special court and get a court order before we are even
permitted to secure intelligence in this way, notwithstanding that the
foreign agents can secure Intelligence against us through such means.
The question that occurs to me is this : I understand that the present
Hughes-Ryan Act is more limiting and more restricting with regard
to securing the cooperation of foreign intelligence agents to help us,
or even the willingness of some of our present intelligence agents to
secure information for us, and yet the President is not, as I understand
it, supporting enactment of revision of the Hughes-Ryan Act except
in the context of a so-called intelligence charter. But the charter bill
would further hamstring the intelligence agencies and would not
liberate it from the restraints that are presently on it.
I am really perplexed. I hope, and I believe from the President's
state of the Union message that he is moving in new directions
with regard to our national security militarily. But even more
imporantly, I think our intelligence capability is more impor-
tant to our national security than even our military. And I assume
that what you are telling us today is that the President is in strong
support of this and that he will also give support to other measures
which would strengthen our intelligence capabilities.
Do I understand you correctly?
Mr. WRIGHT. Mr. McClory, I don't have any credentials to speak
for the President. I am sure he can speak for himself and his ap-
pointees can
Mr. MCCLORY. But you mentioned President Carter's demand for
revitalizing our intelligence agencies.
Mr. WRIGHT. I think the gentleman was there the same night I was
and heard the same speech.
Now, I think the very last thing we would want to do, Bob, would
be to turn this into a forum of partisan disagreement.
Mr. McCLORY. Well, you mentioned the President and you men-
tioned his support of revitalizing the intelligence agencies.
Mr. WRIGHT. Yes; I think this is one way to do it.
Mr. McCLORY. And he supports this measure? You assume that he
supports this one?
Mr. WRIGHT. I do assume that he supports this measure. I support
this measure, and I am, here to speak for Jim Wright, and I am here
to speak for what I perceive to be the will of the majority in the Con-
gress of the United States and their desire that we have legislation
of this type on which to act.
I would say this, if I may, concerning President Carter. One of the
first things he said to some of us in the leadership, in the very early
weeks of his Presidency, at one of our meetings, was to express his
great concern over leaks that had occurred in vital stategic informa-
tion, and to request the creation of one committee of the Congress to
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whom these intelligence agencies might report rather than having
such a proliferation of committees with multiple opportunities for
leaked information. That was one of the first things he asked us to do.
Mr. MCCLORY. He has expressed his support for that?
Mr. WRIGHT. Well, he did very early on, almost 3 years ago.
Mr. McCLORY. Don't you think we could consider that as separate
legislation without tying it in to the charter legislation which would
further hamstring it?
Mr. WRIGHT. As a matter of fact, it was in response to that sugges-
tion that this committee was created in 1977. So the President has not
been lacking in a sincere interest in protecting the integrity of the
information to which the intelligence agencies are privy, nor in asking
the Congress to support this kind of legislation.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Georgia is recognized.
Mr. BOLAND. We indicated it would be a little controversial.
Mr. FOWLER. Well, not to debate my distinguished colleague from
Illinois at this time, but I do think that it ought to lie said as we begin
these hearings that, in echoing the excellent pres(StAtion of the ma-
jority leader, obviously this committee will be considering numerous
pieces of legislation that have been offered by both bodies, which deal
in strengthening the capability of our intelligence-gathering appara-
tus, and that all the missiles in the world and all the defense expendi-
tures in the world are not sufficient security protection if we have
decimated our early warning system by what we have done to our in-
telligence-gathering apparatus.
I believe that this committee and the similar committee in the
other body, in considering any legislation surrounding Hughes-Ryan,
any legislation in rewriting the charter, the graymail legislation that
we marked up yesterday to enable use to proceed judicially in areas of
classified information, and this legislation, that we are all trying to
get off this pendulum effect of the last decade where we swing away,
swing to one side of total restrictions on our intelligence-gathering ap-
paratus, to a call from some quarters to remove every restriction and
almost eliminate any oversight, which could have as ill-advised an ef-
fect as the other swing of the pendulum.
And I think that, again, we will be able to balance in the national
interest these competing interests to accomplish both purposes. And I
want to thank the majority leader for his mental prowess as well as
his well-known forensic and persuasive prowess.
Mr. WRIGHT. The gentleman has just perjured himself.
Mr. MCCLORY. Would the gentleman yield ?
Mr. FOWLEi. I am trying to make it through the whole 5 minutes
before the famous, the well-known McClory-Fowler debates begin.
I yield to the gentleman from Illinois.
Mr. MCCLORY. I just wanted to ask if you would include in the
strengthening of the intelligence capability the elimination of the re-
quirement to report to eight separate committees of the Congress, over
180 members plus the staffs, as an important way of securing better
and more information without the danger of leaks to which you made
reference?
Mr. FOWLER. I would be happy to associate myself with that.
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Mr. BOLAND. And so does the President, of course. He has time and
again indicated that that is his position.
Mr. MAZZOLI. The gentleman's time has expired.
There is another gentleman with us today, a valuable member of
our committee, though not a member of this subcommittee, the gentle-
man from Virginia, Mr. Whitehurst.
If he wishes to ask a question within the 5-minute rule?
Mr. WHITEHURST. Only to say that I am delighted to be here and
pleased to see this committee take this action. I am delighted to have
the great persuasive powers of the majority leader on our side on this.
Mr. MAZZOLI. Mr. Majority Leader, thank you very much for your
time.
Mr. WRIGHT. Mr. Chairman, thank you, and good luck to you.
Mr. MAZZOLI. Thank you.
I think the gentleman, the acting chairman, will now exercise his
prerogative in making the opening statement.
The Subcommittee on Legislation meets today to receive testimony
on legislation which has been drafted to address a particularly dis-
turbing current practice, and that is the deliberate disclosure of the
names of undercover U.S. intelligence officers and agents.
Such disclosures have been on the increase in recent years and are
coming at a time when an effective intelligence collection capability
is as necessary to the safety, security, and well-being of our Nation
as never before in our history. It goes without saying that divulging
the identity of intelligence agents serves to destroy this capability.
Not only are lives threatened, but legitimate intelligence collection
activities are rendered useless, the careers of dedicated intelligence
officers are ruined, service morale is lowered, foreign policy is dis-
rupted, and the taxpayers' money is wasted.
Some of the individuals who publicly identify undercover intelli-
gence personnel -claim to be guided by patriotic impulses and a desire
to end the illegal activities committed by the intelligence services. I
cannot judge their claimed patriotism nor their claimed altruism.
But I can state without equivocation that they are dead wrong; I
can state that their actions damage our Nation's legitimate national
security interests, and I can state that they are endangering the lives
of their fellow Americans.
While there are statutes on the books which deal with the subject of
unauthorized disclosures of sensitive and classified information, I am
persuaded that clear, specific, and effective legislation must be crafted
by this Congress to stem the rampant, intentional disclosures of the
identities of undercover intelligence agents.
Now, I believe the bill before us today, H.R. 5615, which has been
cosponsored by every member of this subcommittee, is a positive first
step in developing such a piece of legislation.
I am not unmindful, as has already been stated this morning, I am
not unmindful of the constitutional requirements affecting this sub-
ject area. These hearings will assist the subcommittee, and then, I
trust, the full Intelligence Committee, to report a bill which addresses
the serious problem posed by unauthorized disclosure of names of
agents without impinging in any way on the constitutional guarantees
enjoyed by every American citizen. In the final analysis, it is precisely
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these guarantees which distinguish and exemplify the American way
of life and which elevate it above that afforded to any people in any
other nation on the face of this Earth.
We will now proceed to the next witness whom we would invite to
walk forward and join us at the witness table, the Deputy Director of
Central Intelligence, Hon. Frank Carlucci, who will be joined by Mr.
Fred Hitz and by Mr. Dan Silver of his staff.
As this committee knows, Ambassador Carlucci has served his coun-
try in a varied and important list of Government posts, most notably
as Under Secretary of the Department of Health, Education, and Wel-
fare, and as Ambassador to Portugal. .
His frequent appearances before this committee make him no
stranger whatsoever to this committee. We thank him for his past help,
and we certainly welcome him today to speak to the several bills
which we have before us.
Ambassador, you can proceed in whatever manner you wish. We of
course have other witnesses. You may want to summarize your state-
ment, but you are welcome to read it entirely.
We thank you and we welcome you.
STATEMENT OF HON. FRAM C. CARLUCCI, DEPUTY DIRECTOR OF
CENTRAL INTELLIGENCE, ACCOMPANIED BY DANIEL SILVER,
GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY ; AND
FREDERICK P. RITZ, LEGISLATIVE COUNSEL
Mr. CAMUCCI. Thank you, Mr. Chairman.
I want to thank you and the other distinguished members of this
committee 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 have with me today my General Counsel Daniel Silver, and my
Legislative Counsel Fred Hitz, both of whom have been intimately
involved in our efforts to obtain statutory protection for officers and
employees of the intelligence community who serve under cover, and
for our foreign agents and sources whose relationships with the in-
telligence community are intentionally concealed.
I start this morning from the premise that our efforts to collect in-
formation about the plans and intentions of our potential adversaries
cannot be effective in a climate that condones revelation of the means
by which those efforts are conducted. Indeed, the impunity with which
misguided individuals can disclose our undercover officers and em-
ployees and our foreign agents and sources has had a harmful effect on
human intelligence collection and other aspects of our intelligence
program as well. Equally significant is the increased risk and danger
such disc]o-nres 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 de-
stroy the effectiveness of activities and programs duly authorized by
the Congress.
Mr. Chairman, recent world events have dramatically demonstrated
the importance of maintaining a strong and effective intelligence ap-
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paratus. The intelligence community must have both the material and
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 96th Con-
gress clearly and compellingly declare that the unauthorized dis-
closure of the identities of our intelligence officers and those allied in
our 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.
Legislation in this area must be carefully drafted. It must safeguard
the Nation's intelligence capabilities without impairing the rights of
Americans or interfering with congressional oversight.
Attorney General Civiletti has recognized the need for identities
legislation. Speaking earlier this month on intelligence and the law at
Fordham University Law School, he said, and I quote :
This is an important time to be aware that the unfinished agenda of lawmaking
in intelligence includes some important items for the legitimate protection of our
intelligence activities. Existing law provides inadequate protection to the men
and women who serve our Nation as intelligence officers. They need and deserve
better protection against those who would intentionally disclose their secret mis-
sion and jeopardize their personal safety by disclosing their identities. Public
comment and criticism of intelligence activities and specific operations is proper.
Revealing the identities of particular intelligence personnel and placing them in
danger, on the other hand, serves no legitimate purpose. Our proper concern for
individual liberties must be balanced with a concern for the safety of those who
serve the Nation in difficult times and under dangerous conditions.
This committee and other Members of Congress have for some time
recognized the inadequate protection to which the Attorney General
referred. Representative Michel of Illinois and Senator Bentsen of
Texas introduced bills to protect intelligence identities in the 94th and
95th Congresses respectively. Nine identities bills have been introduced
thus far in the 96th Congress, including bills by Senator Bentsen and
by Representative Charles E. Bennett of Florida, both of whom will be
testifying at these hearings.
The introduction of H.R. 5615, the Intelligence Identities Protection
Act, by the entire membership of the Permanent Select Committee on
Intelligence last October was, of course, an extremely significant devel-
opment, and an impressive demonstration of this. committee's deter-
mination to maintain the effectiveness of our Nation's foreign intelli-
gence activities.
Last week, the committee's bill was introduced in the Senate as sec-
tion 4 of S. 2216, a bill cosponsored by Senators Moynihan, Jackson,
Nunn, Chafee, Danforth, Wallop, and bomenici. I believe these efforts
reflect a growing feeling that we, as a government, must come to grips
with this problem and determine where the public interest lies. I do not
believe there is any justification or excuse for the deliberate public dis-
closure of the identities of personnel having concealed employment or
other relationships with the intelligence agencies of the U.S. Govern-
ment.
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The distinguished chairman of this committee eloquently expressed
the essence of the problem in a recent letter to the editor of the New
York Times. Chairman Boland wrote as follows :
The operating heart of any service is the use of undercover agents and offi-
cers overseas to collect intelligence information. Obviously, if the names of these
people are spread upon the public record their usefulness is ended and the ef-
fectiveness of the clandestine service is destroyed. Unauthorized disclosure of
the names of undercover intelligence agents is a misguided act that serves no
useful informing function whatsoever. It does not alert us to abuses ; it does
not bring clarity to issues of national policy ; it does not enlighten public de-
bate; and it does not contribute one iota to the goal of an educated and in-
formned electorate. What it does do is place lives in danger and cripple our
efforts to collect timely and accurate intelligence, the sina qua non for the ef-
fective conduct of foreign affairs. Whatever the motives of those engaged in
such activity, the only result is the complete disruption of our legitimate intelli-
gence collection programs, programs that bear the imprimatur of the Congress,
the President, and the American people. Such a result benefits no one but our
adversaries.
Mr. Chairman, those who seek to destroy the intelligence activities
of the United States have propagated a number of fallacies. Unfor-
tunately, some of these have found their way into discussions of H.R.
5615 in the press and elsewhere.
One of these fallacies is that accurate identification of CIA per-
sonnel under cover can be made merely by consulting publicly avail-
able documents-like the State Department's Biographic Register-
and therefore the bill would impinge on discussion of information
that is in the public domain. This is untrue. There is no official un-
classified listing anywhere that identifies undercover CIA officers. The
biographic register and similar documents cannot be used, without
additional specialized knowledge and substantial effort, to make such
identifications accurately. It is only because of the disclosure of sen-
sitive information based on privileged access and made by faithless
Government employees, such as Philip Agee and John Marks, with
the purpose of damaging U.S. intelligence efforts, that the public has
become aware of indicators in these documents that can, and some-
times do, distinguish CIA officers.
This, however, is not the full extent of the problem. A substantial
number of the identifications made by such avowed enemies of U.S.
intelligence activity, as the publishers of CovertAction Information
Bulletin, have been accurate. This indicates that they are based on
extensive investigation, using many of the same techniques as any
intelligence services uses in its counterintelligence effort; in effect,
spying on the United States.
The second fallacy is so ridiculous that I would not mention it
except that it has cropped up repeatedly in discussion of this matter :
That is, that someone may engage in good faith in the public disclo-
sure of intelligence identities in order to improve the security prac-
tice of our intelligence agencies. This is like saying that a person
might shoot members of Congress for the sole purpose of strengthen-
ing Capitol security by demonstrating shortcomings. Any patriotic
citizen who believes that he has detected weakness in the cover arrange-
ments used by a U.S. intelligence organization can serve the inter-
est of improving security only by discreetly bringing that infor-
mation to the attention of the organization itself, the President's In-
aq-91a n - en - 2
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telligence Oversight Board, or this committee or the Senate Select
Committee on Intelligence.
The third fallacy is that those who seek the destruction of the Na-
tion's intelligence activities cannot be distinguished from sincere
critics of the CIA or other intelligence agencies and activities. The best
answer to this is the one given by Attorney General Civiletti :
Public comment and criticism of intelligence activities and specific operations
is proper. Revealing the identities of particular intelligence personnel and plac-
ing them in danger, on the other hand, serves no legitimate purpose.
It is noteworthy in this regard that the Church and Pike committee
investigations, the Rockefeller Commission Report, and related press
disclosures, as well as the subsequent oversight activities of this com-
mittee and its Senate counterpart, all have managed to encompaV ex-
tensive public and congressional scrutiny and criticism of intelligence
activities without recourse to wholesale disclosure of the names of un-
dercover intelligence personnel in the categories covered by H.R. 5615.
I believe that this committee and the Congress will find that we
need to effectively put an end to the deliberate disclosure of the iden-
tities of our covert intelligence personnel for any reason.
That the unauthorized disclosure of the identities of individuals
engaged or assisting in the foreign intelligence activities of the United
States has damaged our Nation's foreign intelligence-gathering ca-
pabilities is beyond question. Obviously, security considerations pre-
clude 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 de-
structive effects of these disclosures have been varied and wide-
ranging
Our relations with foreign sources of intelligence have been im-
paired. 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.
Nearly all major foreign intelligence services with which we have
liaison relationships have undertaken reviews of their relations with
us. Some immediately discernible results of continuing disclosures in-
clude reduction of contact and reduced passage of information. In
taking these actions, some liaison services have explicitly cited disclo-
sures 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 pro-
tect 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 or she has been in contact has been openly identified as a CIA
officer. The impact in this regard is twofold : First, there is a substan-
tial adverse impact on the Agency's ability to collect intelligence, sec-
ond, some of our foreign sources who must remain in place in spite of
the disclosure may be subject to severe sanctions.
The professional effectiveness of officers so compromised is substan-
tially and sometimes irreparably damaged. They must reduce or break
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contact with sensitive covert sources. Continued contact must be cou-
pled with increased defensive measures that are inevitably more costly
and time consuming. Some officers must be removed from their assign-
ments and returned from overseas at substantial cost. Years of irre-
placeable 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, counterintelligence
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 violence-prone
organizations.
Mr. Chairman, I am prepared to discuss in executive session indi-
vidual cases which exemplify the damage done to our intelligence-
gathering capabilities. Most significant, however, is the fact that the
collection of intelligence is something of an art. The success of our
officers overseas depends to a very large extent on intangible psycho-
logical and human chemistry factors, on feelings of trust and confi-
dence that human beings engender in each other, and on atmosphere
and milieu. Unauthorized disclosure of information identifying indi-
viduals engaged or assisting in foreign intelligence activities 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 con-
fidence in our ability to protect their identities.
In a time when human sources of intelligence are of critical impor-
tance, there can be no doubt that unauthorized disclosures of the iden-
tities of our officers, agents and sources constitute a serious threat to
our national security.
Current law has proved to be inadequate in deterring these un-
authorized disclosures, and they continue to be made with virtual im-
punity. The net result is a damaged intelligence capability and reduced
national security.
Mr. Chairman. I believe that legislation in this area. to be effective,
should contain certain key distinctions and elements. First, it should
hold current and former employees and others with authorized access
to protected information to a, higher standard than persons who have
not had such access. Such individuals. because of their employment re-
lationships or other positions of trust, can legitimately be held ac-
countable for the deliberate disclosure of any identity they know or
have reason to know is protected by the United States.
Second. 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 sanction, while at the same
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time be capable of proof in those disclosure cases which have been dam-
aging. If a person discloses a protected intelligence identity with
knowledge or reason to know that the United States takes affirmative
steps to conceal the intelligence relationship involved, that person has
acted with culpable knowledge. This knowledge can be demonstrated
when the person making a disclosure states awareness that a cover em-
ployment or other concealed relationship is involved.
Finally, a statute should require proof that unauthorized disclosures
by those who have not had an employment or other relationship of
trust with the United States were made with the specific intent to im-
pair or impede the Nation's foreign intelligence activities. This re-
quirement would be for the protection of those who might claim they
have made a public disclosure for a legitimate purpose although I be-
lieve Congress should determine if there are any such purposes and
make provision for them.
For example, if the Congress finds that current. requirements and
procedures for reporting allegations of illegal or improper activity by
intelligence employees may not be sufficient to discover such an ac-
tivity, it could provide in statute for direct reporting to the Congress,
or to the Attorney General, or even to the President. In this way it
could be made clear that there is no justification for the public dis-
closure of protected intelligence identities.
In my view, H.R. 5615 goes a long way toward meeting these cri-
teria. It is a carefully drafted, crafted and narrowly drawn measure
which comes to grips with the full extent of the problem. The com-
mittee's bill would go far toward safeguarding vital intelligence capa-
bilities without impairing the rights of Americans or interfering with
congressional oversight. In the opinion of the Agency's lawyers, the
bill would make possible prosecution of those who seek to destroy the
intelligence capabilities of the United States, while leaving untouched
legitimate criticism of the intelligence community or its activities.
There are, however, several improvements to the bill which I would
urge you to make.
First, the Department of Justice, in its comments on the bill, has
suggested that persons who are not present or former intelligence
employees should be covered whenever the disclosure is based on classi-
fied information. We do not think that this formulation would ade-
quately cover all cases, since in many of the most ezregious current
cases, a nexus to classified information would be difficult to prove be-
yond a reasonable doubt. Thus, I cannot support this formulation as
a substitute for section 501 (b). On the other hand, I am persuaded by
the Justice Department's arguments that there may be some cases in
which the specific intent to impair or impede U.S. intelligence activi-
ties would be difficult to prove, but in which a nexus to classified in-
formation would not. In order to provide full coverage, therefore, I
would propose that section 501(b) be revised to provide two alterna-
tive bases for liability. One would be the disclosure with the specific
intent to impair or impede the foreign intelligence activities of the
United States; the other would be the disclosure of identities based on
classified information.
A second area requiring improvement relates to the prosecution of
accomplices and conspirators. As now drafted, H.R. 5615 would bar
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such prosecution in all cases unless the alleged accomplice or conspira-
tor possessed the specific intent to impair or impede the Nation's for-
eign intelligence activities. I understand and agree with the advis-
ability of requiring such a specific intent in the case of an accomplice
or conspirator to violate section 501(b) of the bill.
On the other hand, I see no reason to immunize persons who assist or
conspire with current or former employees or others having authorized
access to classified information in the commission of an offense under
section 501(a). With respect to this latter group of accomplices and
conspirators, there should not be a specific intent requirement.
H.R. 5615 does not cover disclosure of the identities of former officers
or employees of an intelligence agency or members of the Armed
Forces formerly assigned to duty with an intelligence agency. To be
effective, the legislation should extend to these categories of persons.
Many officers and employees retire or are separated under cover for a
variety of reasons. Disclosure of their former intelligence agency affili-
ation may place them or their families in physical danger or may sub-
ject them to harassment or threat of bodily injury. Moreover, there are
very real counterintelligence reasons for maintaining cover. In many
instances, the individual's contacts and sources may still be in place
and active. Such a network may have been passed on to the former
officer's successor. Should the former individual's relationship be re-
vealed, the entire network may be compromised. Accordingly, in those
cases where such relationships remain otherwise concealed and where
the United States continues to take affirmative measures to keep them
concealed, unauthorized disclosures should warrant attachment of
criminal liability.
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 liaison
services and agent sources, the personal safety and well-being of
patriotic Americans serving our country, and the professional effec-
tiveness and morale of our country's intelligence officers are all at
stake.
As matters now stand, the intentional exposure of covert intelligence
personnel with impunity implies a governmental position of neutral-
ity. 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 dis-
closures. Specific statutory prohibition of such action is critical to the
maintenance of an effective foreign intelligence service. It is impera-
tive that a message be sent that the unauthorized disclosure of intelli-
gence identities is intolerable.
I sincerely appreciate your genuine concern about our intelligence
capabilities and wholeheartedly support your efforts to deal with this
serious problem. I encourage you to proceed to report legislation that
will provide an effective remedy. I believe effective legislation to pro-
tect intelligence can and should be made a key part of the founda-
tion for the revitalization of our Nation's foreign intelligence
capabilities.
We have supplied the committee with some suggested drafting
changes in H.R. 5615. Mr. Silver and Mr. Hitz and I will be happy to
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18
discuss these matters in greater detail or to answer any questions you
may have on them.
Thank you, Mr. Chairman.
Mr. MAzzou. Thank you very much, Mr. Ambassador.
You were here this morning when our majority leader spoke on be-
half of his bill, on behalf of this whole subject area, and you heard him
say that this was a very important part of the Democratic agenda for
the second session, it was a bill to which the President had committed
his support. And, of course, there was a lot of discussion back and forth
and using terms, "outrageous" and "unconscionable" and this sort of
thing, and I wonder, are we overstating the case? Are we overkilling
here? Could you as a professional member of your organization have
stated the case as persuasively as you did this morning half a year ago
or a year ago?
Ambassador CARLUCCr. Mr. Chairman, let me say that first of all, I
am not a professional CIA man'. I have been with the organization a
little over 2 years. I am a professional foreign service officer who has
dealt with the organization for some 20 years. And I think I under-
stand it fairly well without being an integral part of it.
I think it is fair to say that since I have been in the CIA at least
there is nothing that has been more damaging to morale and to the
effectiveness of the Agency than this kind of activity, that is to say,
the unauthorized disclosure of the identities of our CIA personnel and
their agents.
I had some personal experience when I was Ambassador to Portugal.
I watched one of these so-called exposes name people in the Embassy
that I then headed. Not only did they name them, but they provided
the addresses and such details as "second apartment to the right after
you get off the elevator," a clear incitement to violence. I watched the
careers of able and dedicated officers being ruined. We had to transfer
people. Sources began to dry up.
Since I have been with the Agency I have seen this occur around
the world. I happened to arrive in one country on a trip about 7 or 8
months ago and was greeted at the airport by a young officer who had
that very morning been exposed in one of these so-called bulletins,
CovertAction Information Bulletin. He was an able young officer who
had worked for 8 or 10 `ears to conceal his identity. He had valuable
assets in the country. All of that was now worthless. His assets were
unwilling to have contact with him. He would have to be transferred,
his career potential clearly diminished.
We have had cases where Ambassadors have said, we cannot accept
this assignment because this person has been exposed.
Clearly this has been highly damaging to our intelligence capabil-
ity overseas. It was damaging 2 years ago. The longer it goes on, the
more damaging it becomes.
Mr. MAZZOi r. Mr. Ambassador, you have your legal expert with you.
Perhaps you could address this question, or perhaps he could. Can
current law-and there is a range of statutes on the books today which
deal with unauthorized disclosures and sensitive information-do the
job today, properly enforced?
Ambassador CARLUCCI. I will ask my legal expert, General Counsel
Mr. Silver, to address that in detail, but let me just make a comment.
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Since I have been with the Agency we have held detailed discus-
sions, lengthy discussions with the Department of Justice in an effort
to cope with this situation under current law. We have looked at the
possibility of criminal suits. we have looked at the possibility of civil
suits, and while in some cases that may be theoretically possible, I
think it is fair to say that as a practical matter, current law does not
enable us to get at these activities.
But let me ask Mr. Silver to address that in more detail.
Mr. SILVEn. I can't really add very much to what Mr. Carlucci has
said. I think the proof of the issue is the fact that despite valiant ef-
forts on our part and on the part of the Department of Justice, we
have not found a practical way to apply the current statutes on the
books, whatever their theoretical coverage may be, to the situation we
face. Certainly, looking at H.R. 5615, there is a portion of the activity
covered there that seems to me clearly to be covered under present law,
but the statute would remove some difficulties of definition and inter-
pretation that now exist.
There is another area'of activity, that covered by section 501 (b)
that it would be very difficult to apply current law to, but which is,
from our point of view, an extremely serious problem.
Mr. MAZZOLI. Well, my time has expired, and we perhaps will have
time for a second round of questions.
The gentleman from Massachusetts, Mr. Boland. is recognized.
Mr. BOLAND. Mr. Carlucci, I want to thank you for what I think is
an exceptionally fine statement in this area. If anyone knows what the
problems are with respect to the intelligence community, the Director
of Central Intelligence and his Deputy of course, recognize it better
than most people.
You have had extensive experience in the Government. You have
served with distinction in a number of capacities. I presume that one
of the most important ones with respect to the problem that we have
before us today was being Ambassador to Portugal, and I presume
that in many, many instances you had contacts with our agents, chiefs
of stations in various countries and particularly in the country that
you served as Ambassador, and because of that, I presume you have
a more definitive recognition of the danger to the collection of intelli-
gence when names of agents are disclosed.
Did I hear you say that there was information with respect to
agents or assets or chiefs of stations that was disclosed in the countries
where you served as Ambassador?
Ambassador CARLUCCI. Yes; there was the so-called expose of CIA
personnel in Portugal when I was Ambassador there.
Mr. BOLAND. How serious an impact was that on our ability to
collect intelligence? And that was a very important area at that time,
at the time you were serving there.
Ambassador. CARLUCCI. Mr. Chairman, it is difficult for me to go into
detail in public session. Let me say that it had a significant impact on
our ability to collect intelligence. We had to rotate a number of people.
That, of course, has an impact on their sources of information, when
somebody new has to come in.
Let me also say that the identifications that were made in this
instance were not 100 percent accurate, and that people who were not
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intelligence officers were implicated, and that was damaging to their
careers as well.
Mr. BOLA\D. In your statement you take pains to point out that
names of agents cannot be gleaned'from merely reading biographic
registers and other lists. You state that it also takes extensive investi-
gations, interviews, and other techniques. Of course, you recognize, as
all of us do, that it is not illegal to engage in these latter activities
which are open to any member of the public.
Now, my question is twofold. Isn't it true to say that some names of
intelligence agents can be obtained, can be obtained from publicly
available sources without the use or disclosure of classified
information?
Ambassador CARLUCCI. The names, per se, cannot be obtained from
any single individual source. If I may, this is a very important point,
Mr. Chairman, and let me elaborate on it. I said in my statement that
what is involved here is essentially spying on the United States. There
are groups who are engaged in fairly sophisticated counterintelligence
techniques. These techniques involve gathering information from a
wide variety of sources. Much of the information that any intelligence
agency gathers is unclassified at the outset. It is only when it is put
together with other pieces of information and certain conclusions
drawn that it becomes classified.
Now, using sophisticated techniques, people can try and identify the
location in the embassies, look at travel orders, look at the pattern of
assignments, try to obtain embassy telephone books, try to obtain
copies of the "States Department Biographic Register," which is
now a classified document, look at individuals' personal backgrounds,
indeed, maybe even look at their patterns of activities in a given
country; using all of these techniques, most of which would be from
unclassified sources, they can *come to a logical conclusion, not with
100-percent accuracy, but with substantial accuracy.
So what we have involved here is not somebody simply going to the
Library of Congress and opening a book and seeing John Doe has a
certain designator therefore he is a CIA man. What we have are
people who have developed highly sophisticated techniques, which in
some cases have been learned within the Agency, and are applying
these techniques to impede the effective activities of our intelligence
agencies.
Mr. MAZZOLL. The gentleman's time has expired.
The gentleman from Illinois, Mr. McClory.
Mr. FOWLER. Would the gentleman yield for a followup question,
and then I will give you some of my time.
Mr. MCCLORY. Certainly I will yield.
Mr. FOWLER. Mr. Ambassador, is the Agency asking us to legislate
as illegal the activity that you describe, no matter how sophisticated
and how deductive in its reasoning, if that information was gleaned
solely from unclassified sources?
Ambassador CARLUCCI. We are asking the committee to legislate as
illegal activity which pinpoints the names of our personnel or our
agents when affirmative steps have been taken to conceal their identity,
and when we can prove an intent to impede the intelligence activities
of the United States.
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Mr. FowLER. Well, the key to that would be, would it not, what
constituted the intent then ?
Ambassador CARLUCCI. That is correct; we would have to demon-
strate intent.
Mr. MCCLORY. Why don't you continue and I will take the next
5 minutes.
Mr. FOWLER. Just to follow that through, do ,you want to describe to
us what you foresee as the criteria to prove intent, when the defend-
ant could show that all sources from whence the revelation came
were gleaned from unclassified material?
Ambassador CARLUCCI. Well, activities, such as are contained in this
publication called CovertAction Information Bulletin, are avowedly
for the purpose of impeding the intelligence collection activities of
the U.S. Government.
Mr. FOWLER. I don't think there would be any question about that,
but let's say I am a jackleg reporter for a great metropolitan news-
paper, and I decide that I want to-that I see somebody engaged in
what I think to be suspicious activity, for whatever reason, maybe after
a narcotics bust, or I may be after a spy in my hometown. But I
go and ask some questions of the military and find from public docu-
ments where he has served; I can trace pretty much in an unclassified
manner where he has served in the Army and what Government posts
he may or may not have had. I could follow him around for a while
and see that he wears trenchcoats and went to strange places after
hours, even took notes on rolled-up Time magazines, and I put to-
gether-I am not really being facetious, but as a good investigative
reporter, I might then conclude that this man was a spy and write
that in a story, that such and such, in my opinion, was a spy for the
Soviet Union. And maybe I just happen to be right.
Could I be prosecuted under the legislation that you are
Ambassador CARLUCCI. Well, certainly not for identifying some-
body who is a spy for the Soviet Union. We don't-
Mr. FOWLER. I'm sorry; the other way around, a spy for us.
Ambassador CARLUCCI. Well, if you identify him as an employee
of a U.S. intelligence agency-first of all, I would go back to my orig-
inal comment that it seems to me there is no redeeming social purpose
in doing this. It doesn't help with the oversight process, and if some
person believes there is an abuse being created, there are plenty of chan-
nels to report those abuses, including this committee.
Mr. FOWLER. Let me interrupt you, Mr. Ambassador, because we all
agree, as you know, on the need to protect our sources and our agents,
but with the Agency coming in and asking to legislate, the question
that I think is going to have to be determined is whether or not in
the unclassified field, whether the remedy is in the legislative branch or
in the Agency to tighten its own procedures. But under the examples
again, that has to be dealt with specifically. whether or not a journal-
ist, in reporting what he perceives to be intelligence-gathering activity
by an employee of our Government which all could be gleaned from
unclassified sources, whether you are asking/us that that ought to be
legislated a violation of the security laws of our country.
Ambassador CARLUCCI. Mr. Fowler. I am not a lawyer, and I will
ask our General Counsel to address this. It seems to me that in, the
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example that you have described, if somebody were to publish one
newspaper article saying I think John Doe may work for the CIA, and
there is no evidence in that article of intent to impede or impair the
intelligence activities of the U.S. Governmment, that that would not
fall under the legislation as we interpret it.
However, if this individual should embark on a crusade which, the
purpose of which is obviously to impair the effectiveness of our intel-
ligence activities, say, he should visit 10 or 20 other cities and go over-
seas and conduct a counterintelligence operation on a crusade to iden-
tify the names of CIA personnel or their agents, then I think that
would be a different thing and it would fall under the statute.
Let me ask Mr. Silver to address it in some detail.
Mr. SILVER. I would like to make one comment, and that is to draw
an analogy to statutes that are on the books that prohibit such things
as the photographing of fortifications, passage of information about
the movements of troops, and a variety of other things in time of war
that are not in themselves classified. You cannot classify the external
appearance of a U.S. Government facility that anyone can see. Those
statutes have an element, and that is the specific-intent element, and
it is that very element which courts have relied upon to determine that
those statutes are constitutional. It is, from my point of view as a
lawyer, clear to me that without a specific-intent element, a statute
that applied to someone who dealt only with unclassified information
and phenomena would have serious constitutional problems. But this
bill, which your committee has very carefully drawn, avoids those
problems and I think would be completely inapplicable in the example
that you cite.
Mr. FowLER. My time has expired, Mr. Chairman.
Mr. MAZZOLL. We will have a second round.
Mr. FOWLER. Let me conclude my thought. As you all know, we are
all cosponsors of this legislation. We see the need for it and we just
have got to be very careful that we don't-especially with these new
amendments that you have added in the unclassified field-that we are
not crafting this legislation specifically to deal with the Agee problem
and the Agee problem alone, because that is a blatant, obvious example,
and I would like to pursue that further.
Mr. MAZZOLI. The gentleman from Illinois is recognized for 5
minutes.
Mr. MCCLORY. Thank you, Mr. Chairman.
I want to commend personally and publicly Mr. Carlucci for his
distinguished and his courageous and effective service. I did have the
opportunity to visit with Mr. Carlucci in Portugal at the time when
he was serving our Nation there, and I have personal knowledge
of his tremendous and important service to our Nation, and I am
grateful indeed that we have von. Mr. Carlucci, in the position in
which you are now as the Deputy Director of CIA.
Ambassador CARLL'CCT. Thank you, Mr. McClory.
Mr. MCCLORY. I am also encouraged by the statement from the
majority leader, and I am clad to know about the Democratic priority
which is being placed in this area. I would say that President Carter
appears to be adopting positions which the Rerublicans and which
I have been advancing for several years, and there seems to be an
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awareness of the great danger militarily which we are experiencing
now which apparently he wasn't fully aware of before.
But the point that concerns me now is with regard to these new
directions to strengthen our intelligence agencies and their capabili-
ties. Is the administration giving you support? Are you-we have
a divergence of points of view here which are being presented this
morning on the part of the Department of Justice and the CIA, and
I would like to know, where is the administration position? Where is
the administration backing?
That seems to me to be extremely important as far as our action is
concerned.
Ambassador CARLUCCI. Mr. McClory, let me say that the administra-
tion recognizes this as a very serious problem. I have on a number of
occasions heard the President address himself to it.
We also recognize, as Mr. Fowler has pointed out, that there are
sensitive issues at stake here, first amendment rights, and that the legis-
lation has to be well crafted. We have some differences with the De-
partment of Justice as to the best way to approach this problem. We
naturally happen to think our approach is more effective, but we
think that this committee which has the basic responsibility for report-
ing the bill, ought to hear both points of view and reach its own
conclusion.
Mr. MCCLORY. You feel, do you not, that it is vital that we include
persons outside the Central Intelligence Agency, outside of your
agency in this legislation?
Ambassador CARLUCCI. Yes, sir, I do.
Mr. MCCLORY. Now, I wonder about this. Since you do work with
the FBI as far as counterintelligence is concerned, certainly wouldn't
it likewise be important for us to have the FBI covered so that their
covert operations, their persons operating under cover would be pro-
tected by the same legislation ?
Ambassador CARLUCCI. Mr. McClory, the FBI will have to speak
for itself, but we in the CIA would have no objections or problems with
that.
Mr. MCCLORY. Now, with respect to section 505(6), you feel, do
you not, that that can be changed as you have indicated in your
testimony.
How do you feel about it being changed to include members of the
business. community who travel overseas and who share information
with the CIA upon returning to the United States?
Ambassador CARLUCCI. You are talking about the definitions?
Mr. McCLoRY. This would be people outside of the intelligence
community.
Ambassador CARLUCCI. Agent, informant, and source of operational
assistance.
Mr. MCCLORY. Just people, American people, but they share infor-
mation and they do it covertly.
Ambassador CARLUCCI. I personally wouldn't have any problem
with that. It would seem to us that people in the United States such
as businessmen who cooperate with us-and that cooperation is very
valuable-are not exposed to quite the same degree of risk as people
overseas, but should the committee want to include them, that would
not trouble us at all.
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Mr. MAZZOLI. The gentleman's time has expired.
I think we have time, and since the Ambassador is very important
to the legislation, does the gentleman from Massachusetts have a
followup question?
Mr. BOLAND. Yes; paralleling the question I asked with reference
to the obtaining of information without disclosing classified material,
you indicated that through sophisticated mechanisms and brilliant
investigative reporting, it is possible to pick up information which
may be in the public domain. I don't take it that you would consider it
to be in order to consider it a crime to disclose what was obtained from
public sources?
Ambassador CARLUCCI. Well, I am not sure of the burden of your
question, Mr. Chairman. If an individual puts together from public
sources information that leads to the identification of agents or CIA
personnel overseas, and once again, we can prove intent to impede
or impair the effectiveness of our intelligence collection activity, then
I would favor it being included.
Mr. BOLAND. Well, that puzzles me a little bit. It seems to me that
what you are saying is that the investigative reporter or the statis-
tician or the person who uses sophisticated techniques to put together
all this information, that he ought to be, in putting together an indica-
tion that a particular agent or chief of station is a member of the
intelligence community, that after all of what he has done he comes
to this conclusion, but he has picked it all up from public sources, I
take it that you think that
Ambassador CARLUCCI. May I pose an extreme example, Mr. Chair-
man, just to illustrate the point?
Supposing you have an embassy in country X, and a group of mis-
guided people wants to identify the CIA people in that embassy. They
could conceivably take a number of people and put them in that country
and follow some of the people they suspect on all their activities-
physical surveillance, so to speak. They might even arrange for some
electronic surveillance. None of that would be classified. But over a
period of time they could conclude that the pattern of activities was
such that this individual worked for the CIA. There would be a clear
intent here to impede or impair the intelligence collection activities of
the T.S. Government. I think the bill ought to cover that kind of
activity.
Mr. BOLA-\D. Well, that is an area that we have to wrestle with, of
course.
But in any event, I am glad to get your opinion on it.
Ambassador CARLLCCI. If I may, Mr. Chairman. I think possibly
you and I are talking at cross purposes here because we are satisfied
with the basic structure of the committee bill, H.R. 5615. as regards
people who expose CIA personnel and a(Tents when there is an intent
to conceal that identity by usinn unclassified information, and I would
underscore that here the committee draft reouires the proof of intent
to impair the intelligence activities of the T.S. Government.
Mr. BOLAND. I understand that; but whether or not it is in the
committee bill, should it be a crime to disclose what was obtained from
public sources?
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25
Ambassador CARLUCCI. If the U.S. Government is taking affirmative
steps to conceal the identity of those individuals, and if there is an in-
tent to impair or impede the intelligence activities of the United
States, we would favor making it a crime, yes, sir.
Mr. BOLAND. Thank you, Mr. Carlucci.
Mr. MAZZOLI. The gentleman's time has expired.
Let me take my additional time here at this point and refer you,
Mr. Ambassador and Mr. Silver, to page 18 of your statement where
you suggest that if Congress finds that current requirements and pro-
cedures for reporting allegations of illegal or improper activity by in-
telligence employees may not be sufficient to discover such activity, it,
the, Congress, could provide in statute for direct reporting to the Con-
gress, or to the Attorney General, or even to the President. In this way
it could be made clear that there is no justification for the public dis-
closure of protected intelligence identities.
Would it be, your feeling and is there any basis in law for suggest-
ing that if we were to put something like this in a bill, reaffirming
the intent of Congress to provide an avenue for the appropriate dis-
closure to the authorities or to Congress where wrongdoing is taking
place, where overreaching has occurred, that that would then make
the burden of proof of suggesting an intent to impede or impair na-
tionsi security a little easier to make, and a little more clear cut, and
would satisfy some of the problems you see developing in 501(b) ?
Ambassador CARLUCCI. As a nonlawyer, it would seem to me that
it would, but let me defer to the lawyer.
Mr. SILVER. Well, there is another provision in the bill that pro-
vides that the mere fact of disclosure cannot be used as a basis for
drawing an inference of intent. so I think even with the change that
you have suggested. Mr. Mazzoli, the Government would have to find
some additional evidence of intent other than the mere act of dis-
closing, but we would heartily endorse any measure that makes it clear
that the purpose of this legislation is not to cut off or stifle criticisms
or exposure, through appropriate channels, of alleged impropriety.
Mr. MAZzoLI. I guess what I am driving at, if you offer one avenue
for people who have right-minded concerns about where our intelli-
gence agency is going, and that avenue is not pursued, then the pur-
suance of the other which leads to disclosure of names would then not
alone be intent, but would certainly evince something about the per-
son's intent.
Would that be a fair statement, from a lawyer's standpoint?
Mr. SirvF.R. I think that would be correct.
Mr. M AZZOra. I thank you, and my time is expired.
The gentleman from Illinois, 5 minutes.
Mr. MCCLORY. Thank you. I don't know that I need 5 minutes, but
I would like to get some good support for a couple of things that I
covered before, and one is : Do I understand you would support
amendments that would include the FBI?
Ambassador CARLUCCI. I indicated that the FBI would have to speak
for themselves, but we would have no problem with them, and my
ow,. iudryrn-nt. would he that it is perfectly appropriate.
Mr. MrICLORY. And. likewise. I am swaree that there have been tre-
mendous pressures to exclude journalists from cooperating with the
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CIA. And, I think representatives of multinationals are very wary
now because if they cooperate clandestinely, this fact could be blown
and it would do damage not only to their company and their
careers but even to our country. So could I get a clear under-
standing from you that where business personnel or any other
person-including journalists, for that matter, I don't care who the
individual is, an American presumably-cooperates with you to pro-
vide information covertly, without the identity being known, should
not that individual citizen-he may not be paid, may not be an actual
informant, but he is a source of information vital to our country, he
is a volunteer-but should not he be protected by this legislation just as,
well as a CIA agent operating under cover, or a former agent, or
whomever it happens to be that is otherwise covered in the legislation?
I would like to have your support of that proposition. I think it is
important to the American people. I think it is important to you get-
ting cooperation from these kinds of individuals who, in my view,
can be so extremely helpful.
Ambassador CARLUCCI. I would agree to their inclusion in the bill,
Mr. McClory. Let me point out, though, that with regard to the coop-
eration of the American business community, it is not the exposure
of United States-of identities that has been a problem as much as
it has been the Freedom of Information Act, and of course we can
address that in another forum.
Overseas, this kind of activity, exposure of identities, has had
very pronounced impact. It has had less impact on cooperation with
American citizens here. But subject to review by our lawyers, I would
certainly see no harm, and I would see some benefit in including it.
Mr. MCCLORY. Well, I agree with you entirely; I think we need to
amend the Freedom of Information Act, too. I think it is just out-
rageous that foreign agents are getting information by virtue of that
legislation, and that convicted felons are getting information about
the informants or witnesses against them and such things, so that I
am sure we should do that; plus, of course, amendment of the Hughes-
Ryan Amendment and other measures.
So in a sense this is just a start. We have got a lot to do in order to
revitalize and strengthen the CIA so that it can do the full, necessary
job we need for our national security.
Ambassador CARLUCCI. I agree, Mr. McClory.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Georgia is recognized for 5 minutes.
Mr. FOWLER. Mr. Ambassador, while you are reviewing with your
competent lawyers the suggestion of my friend from Illinois, the way
I hear Mr. McClory's suggestion-and I would not impugn his mo-
tives, I know we are all trying to protect, again, our sources and our
agents-but what I heard from that suggest ion which you are going
to review with your lawyers, is that an American businessman, who
has never had any contact with the CIA, could care less about Ameri-
can intelligence, who happens to stumble upon the fact in country X,
or somebody tells him or he hears it at a dinner party. that employee
X of an American company abroad has a contract in the CIA, if our
man just picks this information up casually and reveals it, he could
be prosecuted.
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Ambassador CARLUCCI. No; I think you misunderstood the intent
of Mr. McClory's suggestion. I think his suggestion is directed at pro-
tecting the exposure of an American businessman who cooperates with
the CIA. That is to say that they would be entitled to the same pro-
tection as an agent of ours overseas.
Mr. FowLER. No ; I am right, because under the legislation what
you are proposing is the mere fact of his disclosing the name of the
man that has the contract with the CIA.
Ambassador CARLUCCI. No; I respectfully disagree, Mr. Fowler.
Mr. FOWLER. Well, correct me where I am wrong. That is all I am
trying-I am not cross-examining you.
The statute says if you reveal the names of our agents overseas.
Ambassador CARLUCCI. But Mr. McClory was talking about in-
cluding U.S. persons in the definitions category.
Mr. FOWLER. Well, let's leave Mr. McClory out of it for a minute.
Ambassador CARLUCCI. Section 505(6) ?
Mr. FOWLER. Another example : If I casually find out at a dinner
party-I am an American businessman; I go to country X and I
hear this and then I mention it: I am revealing the name of a man
that has a contract with CIA. Could I be prosecuted?
Ambassador CARLUCCI. Once again, that would depend, once again,
on two factors, Mr. Fowler. It would depend on whether you were
aware that the U.S. Government has taken affirmative steps to conceal
that relationship, and second, it would depend on your intent, or the
intent of that businessman. And if the intent is to impede or impair
the intelligence collection activities of the U.S. Government, then yes;
he would be covered by the statute.
Tf he is casually revealing it as cocktail party gossip, I think that
is deplorable, but it would certainly not be covered under the statute.
Mr. FOWLER. All right, let me leave that for a second just for the
sale of time.
How difficult would it be, do you perceive it to be, for the Govern-
ment to prove an intent, to quote the statute, "to impair or impede
the foreign intelligence activities of the United States," if the accused
is a journalist?
Ambassador CARLUCCI. I think with regard to journalists, that is
it very substantial threshold, but let me defer to my General Counsel.
Mr. SILVER. I would think-it depends what you mean by journalist.
Anyone who cranks out multiple copies of the same piece of paper
could be characterized as a journalist.
Mr. FOWLER. Just for the sake of argument, take the New York
Times and the Washington Post.
Mr. SILVER. If you take the New York Times and the Washington
Post, in my judgment it would be virtually impossible to prove such
an intent, absent circumstances that, as far as I am aware, do not
exist, that is, if the journalist in question were to go around the com-
munity boasting of the fact that he was on a personal vendetta or
crusade against the Agency. yes, that would provide evidence from
which his intent could be derived.
Mr. FOWLER. Well, a lot of people-again. I am playing devil's
advocate. There are a lot of people who think that there ought not
to be any foreign intelligence activity by this country. period. They
are protected in that opinion by the Constitution of the United States.
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If a journalist happens to be one of those and publishes articles,
again based on unclassified information, I assume that you could make
a case that that would show intent to impair or impede the foreign
intelligence activities of the United States, especially when he says we
ought not to have any foreign intelligence activities.
Ambassador CARLUCCI. Well, in fact, people who purport to be
journalists are doing just that under CovertAction Information Bul-
letin. Anybody can pick up the rubric of a journalist by writing a few
articles. If that is what you are talking about, I question whether re-
sponsible news organizaions such as the New York Times or the Wash-
ington Post, which we were discussing-they would have to speak for
themselves, but I question whether they would embark on some kind of
a crusade deliberately to impede or impair the intelligence activities
of the United States.
Mr. MAzz0LI. The gentleman's time has expired, and Ambassador
Carlucci, we thank you very much for your time.
We would like to welcome at this time our next witness, Associate
Deputy Attorney General Robert Keuch.
Mr. Keuch, you may come forward with any of your associates you
may have.
I might say that Mr. Keuch, like Ambassador Carlucci, is certainly
no stranger to the committee. He has informed us and enlightened us
on many other occasions, and the gentleman has been with the Depart-
ment of Justice since 1960, and most of the years in the Criminal Divi-
sion, and again, you have helped us on many of our bills, including our
foreign intelligence wiretap bill of last year. We welcome you and
solicit your information on these bills before us today.
STATEMENT OF ROBERT L. KEUCH, ASSOCIATE DEPUTY ATTORNEY
GENERAL
Mr. KEUCH. Thank you, Mr. Chairman.
Mr. Chairman and members of the select committee, I am pleased
to have the opportunity to testify today on the select committee's pro-
posed Intelligence Identities Protection Act.
The Department of Justice strongly supports the passage of legis-
lation to provide new criminal penalties for unauthorized identifica-
tion of the covert intelligence agents and sources who serve this
country overseas. A strong foreign intelligence capability is essential
to the national security of the United States. The quality of our intel-
ligence gathering will be measurably diminished unless we can pre-
vent unauthorized disclosure of the covert intelligence roles of our
agents and sources. Such disclosures not only impair our foreign
intelligence and counterintelligence activities, but can expose indi-
vidual agents and sources to physical danger. Accordingly, the De-
partment of Justice supports the passage of legislation to prevent
unauthorized disclosures and to provide appropriate punishment
when such disclosures do occur.
It is our opinion that the knowing disclosure of the identity of a
covert intelligence agent or source of the Central Intelligence Agency
or a foreign intelligence component of the Department of Defense
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29
knowingly based on classified information constitutes a violation of
the current espionage statutes found in title 18, section 793(d) and
(e). However, the passage of an act dealing specifically with the
disclosure of covert identities will be an aid to effective law enforce-
ment because the Government will be able to avoid several hurdles
which exist in prosecutions brought under the present espionage
statutes.
The select committee presently has under consideration H.R. 5615,
a bill introduced by Chairman Boland and the other members of this
committee. The Department of Justice has developed its own pro-
posed bill, a copy of which is attached to my prepared statement.
We believe the Department's bill will serve the same end as H.R. 5615,
yet avoid some areas of controversy and unnecessary difficulties for
effective prosecution which the House bill might present.
A brief introduction to the Department's bill is probably the best'
way to start the discussion. The Justice Department bill would create
two new offenses. The first, section 801, would prohibit the knowing
disclosure of information correctly identifying covert agents by any
person acting with knowledge that the disclosure is based on classified
information. This provision would cover persons whose access to such
information was unauthorized, as well as those who had authorized
access. It includes within its prohibition the identification of any
covert agent, employee, or source who is currently serving outside the
United States or has so served within the last 5 years, and would
cover unauthorized disclosures by any American citizen or permanent
resident alien, even if made abroad. A penalty of up to 10 years and
$50,000 fine can be imposed for each offense. There is an "attempt" pro-
vision to permit punishment of those persons who have taken any sub-
stantial step toward knowing disclosure of identifying information
with knowledge of its classified source, even though they are detected
before completing the offense.
This part of the Justice Department bill would extend to classified
covert identity information the same protection against disclosure
currently provided under Federal law for classified communications
intelligence information and cryptographic intelligence information.
See 18 United States Code section 798. It removes any question about
the covered means of disclosure which might arise under the espionage
statutes currently applicable to identify information in the aftermath
of the Pentagon papers case, and will make it crustal clear that pub-
lication in a newspaper or book is as much prohibited as any other
means of communication or transmission. And of course, I am refer-
ring to the New York Times V. United States opinion at 403 United
States Reports 713, and Justice Douglas and Justice White's concur-
ring opinions.
Finally, it would eliminate the need for the Government to demon-
strate that the identity information revealed, in each particular case
is related to the national defense and could be used to the detriment
the United States or the benefit of other nations.
The Department's bill contains a second provision, section 802,
which provides additional protection against identity disclosures by
imposing a powerful constraint on the class of current and former Gov-
ernment employees who have ever had access to information concern-
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ing covert identities in the course of their employment. Such access
can engender a special expertise in discerning how covers are arranged
and a special authority and credibility when the employee speaks in
the public area concerning intelligence activities. These persons would
be prohibited from making any disclosures of agents' or sources' iden-
tities to unauthorized persons, even if the particular disclosures were
based purely on speculation or publicly available information. This
new restriction on discussion of information that is publicly available
is justified for this limited group of present and former Government
employees because of the inside knowledge regarding methods of es-
tablishing effective covers potentially gained in the course of their
employment. Unlike other Americans, the persons coming within the
reach of this provision occupy or have occupied positions of special
trust within the Government, and are or have been in a position to
learn how the United States establishes cover identities for its agents
abroad and conceals its relationships with foreign intelligence sources.
To permit such persons to piece together the identities of covert
agents, even though the conclusions as to particular agents and sources
are based on publicly available information, would pose a concerted
threat to the maintenance of secret intelligence relationships. In addi-
tion, such persons, even after they leave Government employment,
will be imbued with a credibility stemming from their Government
service when they discuss intelligence information. As a result, the
Department believes that additional restrictions are justified and can
be sustained for this class of persons, even for disclosure of unclassi-
fied information. A 5-year term and $25,000 sentence could be imposed
on any such person who knowingly discloses information that cor-
rectly identifies a covert agent, or who attempts to do so, under the
Department's bill.
The committee's bill, unlike the Department's, does not seek any
enhanced protection against the disclosure of classified information as
such. Instead, both provisions of H.R. 5615 would give uniform treat-
ment to the disclosure of classified and unclassified information con-
cerning agent identity.
The first provision of H.R. 5615, 501 (a), is similar to the second
provision of the Department's bill, section 802, in that it seeks to
restrict the disclosure of identifying information, even when based
on publicly available materials, by persons who presently have, or
formerly had, authorized access to classified Government informa-
tion concerning covert identities, and who, from that former position
of trust, reasonably owe a special duty of confidentiality.
It should be noted, however, that in 501(a), the House bill ap-
parently intends to cut a wider swath than the Department's section
802. The House bill would apparently criminalize disclosures of in-
direct identifying information even where the person did not actually
know the information would identify a protected source, but only had
"reason to know." This seemingly amounts to a negligence standard
in regard to the effect of indirect identifying information, punishing
a failure simply to weigh carefully enough what the identifying im-
pact of indirect information would be. In contrast, the Department
would confine its felony provision to knowing identifications. We be-
lieve the Department's culpability standard is better proportioned to
the severity of the penalty than is the House bill's standard.
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The second provision of H.R. 5615, section 501(b), would create a
misdemeanor offense that covers all persons, including those who have
never served in the Government and never -have had access to classified
or inside material of any sort concerning foreign intelligence. Section
501(b) extends to these persons a uniform prohibition against dis-
closing publicly available information that identifies a covert agent or
source, with the added element that the person must have disclosed it
"with the intent to impair or impede the foreign intelligence activities
of the United States." Again, in the case of indirect information, the
person need not actually know that the information would have the
cumulative impact of identifying an agent or source, but need only
have "reason to know."
In proposing a section of such breadth, the House bill marches over-
boldly, we think, into the difficult area of so-called "born-classified"
information, an area that has not yet been litigated in a criminal con-
text. The Douse provision would cover disclosures of publicly avail-
able information made by ordinary citizens who claim no special ex-
pertise in intelligence affairs and have not held special positions of
trust nor associated with others who have. Conversational speculation
about whether foreign official X may have been a CIA source and
whether we have covert operatives in country Y, ordinary discussions
by citizens about foreign affairs and the extent and nature of our
intelligence activities abroad, even if based on no studied expertise or
scholarly background, could come chillingly close to criminality under
the standard of 501(b).
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 and other foreign intelligence
agencies' policies. A mainstream journalist who may occasionally
write stories based on public information mentioning which for-
eign individuals are thought to have intelligence relationships with
the United States, might be fearful that any other stories critical of
the agency 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 even a general position critical of the conduct of our covert for-
eign intelligence activity.
And yet, even as it may chill legitimate journalists, that same in-
tent requirement could pose a serious obstacle, in our view, in any
attempted use of section 501(b) to prosecute individuals who for no
reasonable purpose of public debate expose wholesale lists of our in-
telligence 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 ques-
tionable intelligence-gathering operations which he "believed" to b3
improper, rather than to disrupt intelligence operations, and the Gov-
ernment may find it a practical impossibility to ultimately establish
the requisite intent beyond a reasonable doubt, thereby rendering the
statute ineffective.
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Second, and perhaps more importantly, the intent element will
facilitate graymail 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
relevant to the issue of whether he intended the revelations of identity
to impede American intelligence activities or rather intended the
revelations to lead to supposed reform or improvement of future
intelligence activities.
We believe that the alternative provision of the Justice Department
bill, section 802, which I described earlier, would provide protection
against escalation of the undesirable actions of anti-intelligence
groups over the last several years, and yet would avoid these prob-
lems posed by the House bill. Section 802 would prevent present and
past Government employees, who gain a sophistication in methods
of establishing covert identities from their inside Government knowl-
edge,' from misusing that knowledge to piece together public record
facts in a way that an ordinary layman could not do. Undisclosed
methods of creating intelligence covers would not be subject to breach
in a show-and-tell display by irresponsible former Government em-
ployees, unless they were willing to suffer a felony consequence. Re-
stricting the ability of persons who formerly occupied positions of
trust and service within the intelligence community to abuse that
service-acquired expertise will go far in inhibiting the purposeless
revelation of covert identities and future methods of establishing
cover.
The general Federal accomplice and conspiracy statutes, 18 United
States Code section 2 and section 371, would, we hope, act to prevent
former inside employees from joining in concert with non-Government
employees to effectuate the same wrongful ends by instructing them
on methods of establishing cover and warranting the accuracy of
the disclosures.
At the same time, section 802 would not affect the legitimate arena
of public debate on intelligence activities. It affects only a narrow
class of persons who owe a special duty of trust and confidentiality to
their former employer. There is no "intent to impede" scienter re-
quirement to inhibit responsible criticisms of the intelligence agencies
or to lead to graymail problems or to turn criminal trials into ex-
traneous debates on the propriety of intelligence activities.
For these reasons, the Department of Justice would recommend
to the committee's attention its current draft proposal. We would
be happy to work with the staff of the select committee to draft a bill
that would avoid the pitfalls we believe currently are to be found with-
in H.R. 5615.
Mr. Chairman, that concludes my prepared statement. If you or
other members of the committee have any questions, I would be pleased
to attempt to answer them at this time.
Mr. MAZZOLI. Mr. Keuch, thank you very much, and you certainly
have made a thoughtful addition to the body of knowledge on these
bills before the committee.
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I am a little curious about a couple of things. One is, has this bill,
your suggested bill, been sent to the staff, or is this the first time
they have had a chance to look at it?
Mr. KEUCH. I believe the bill was sent to the staff, certainly as an
appendix to my prepared statement, Mr. Chairman. I believe, how-
ever, there were some ongoing discussions with the staff, and in all
fairness, I don't believe the final form was submitted.
Mr. MAZZOLI. Well, let me urge you to try to help us report the best
kind of information. The quicker things can be sent to us, the better
we have a chance to look them over.
Is my recollection hazy on the point of, or perhaps incorrect on the
point of where the Department of Justice has stood in the past on
the need for new legislation in this area, or am I correct in saying
that you all were either reticent or against new legislation at one
time?
Mr. KEUCH. I think perhaps reticent might be more accurate, Mr.
Chairman, but as Mr. Carlucci pointed out, the Attorney General has
indicated his support and the Department's support for this bill, and
our hesitation really came from our belief, as I indicated in my state-
ment, that many of these activities are covered by current law. None-
theless, we agree that there is an advantage to this specific type of
legislation and do support it.
Mr. MAzzoLI. Is this now the current position, that the Department
of Justice can be stated as of today to be behind new legislation?
Mr. KEUCH. Yes, sir.
Mr. MAZZOLI. And that old legislation, that which is on the books
today, however much theoretical coverage there may be, does not reach
the point and the goal which we all agree on, so something new is
needed.
Mr. KEUCH. I would answer that affirmative, as long as I am not
heard to say that we do not believe that present law would not cover
the activities we are concerned about.
Mr. MAZZOLI. You were here today with Ambassador Carlucci, and
you noticed the statements and the questions raised by the committee.
Most of them dealt with 501(b). There is little argument about 501(a).
Tell me how your 801 would change the committee's proposal on
501 (a) in which there is relatively little fundamental disagreement,
philosophical disagreement. How do you change that?
Mr. KEUCH. I think the two bills are pretty much parallel, Mr.
Chairman. I think that the first section there is very little dispute
about.
Mr. MAzzoLI. All right. Well, what is classified information which
you would add to your 801?
Mr. KEUCH. The classified information, as we define it in the bill,
would be any information or material that has been determined by
the U.S. Government, pursuant to an Executive order, statute, or
regulation, to require protection against unauthorized disclosure for
reasons of national security.
So what we mean by classified information would be that that has
been classified pursuant to statute, regulation, or law. I guess I am
restating the definition.
Mr. MAZZOLI. So in other words, if a member of the CIA who leaves
the service came upon, while in service, the name of John Jones, who
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was an undercover agent in Lisbon, because he heard it around a
water fountain in a room in the CIA building, but divulged that
after he left CIA service, that would not be covered in your bill.
Mr. KEUCH. I believe under the second section of the bill, the in-
dividual in your example did not have formal access to that infor-
mation?
Mr. MAZZOLL I would guess, in my example, he would not. He heard
it over scuttlebutt over a cup of coffee that John Jones is actually a
CIA agent and he is stationed in Lisbon, and later he divulges that.
That, I understand, would be covered by our 501 but it would not
be covered by your bill; is that correct?
Mr. KEUCH. Well, I think it would depend. If we focus in on scuttle-
butt, Mr. Mazzoli, in that kind of situation, probably not, but if it is
an individual who even though his position did not require that he be
given access to informants' files or assets' information, the rest of it,
because of his official position had access to information other than
scuttlebutt and rumors and the rest, he certainly would be covered.
Mr. MAZZOLI. So if it came across his desk in a piece of paper which
wasn't labeled classified but somehow did divulge that John Jones
is an undercover agent in Lisbon, then that would be covered by your
bill?
Mr. KEUCH. It would not be our view that he could benefit from
the fact that there was a negligent handling of that information.
Mr. MAZZOLI. Even though it wasn't stamped classified as such.
Mr. KEUCH. That's correct.
Mr. MAZZOLI. But it came across his desk.
Mr. KEUCH. That's correct.
Mr. MAZZOLI. Let me ask you this question. My time is about to
expire.
Under your proposed 802, would that cover Philip Agee were he
in the United States at this time?
Mr. KEUCH. Well, of course, under the jurisdictional statement of
our statute, it would cover a gentleman such as Mr. Agee whether he
was out of the United States or not.
Mr. MAZZOLI. You have that in your bill?
Mr. KEUCH. Yes, sir.
I think he has maintained his American citizenship, and if he sat-
isfied the standards of that section, certainly.
Mr. MAZZOLI. He would be covered.
My time has expired.
The gentleman from Massachusetts is recognized for 5 minutes.
Mr. BOLAND. I take it that the Department of Justice was a little
reticent to get into this field because it believed that present law
really covered about everything that was necessary to protect the
activities of agents.
Is that correct?
Mr. KEUCH. I think that is accurate, Mr. Chairman. I think I have
testified to that in other appearances before this committee and the
Senate committee, but again, I have to emphasize that we do believe
it is helpful to have a specific statute, and we support that effort.
Mr. BoLA%-D. Well, this bill, as you know, was filed back in October
of last year. That is about 3 months back. And I don't know that you
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have actually commented upon that bill since that time, or made what
particular objections the Department of Justice might have to it avail-
able to the staff. I am not sure of that, and you can correct me if I
am wrong But I am not sure that you made the Department of Justice
position known, and this, to my knowledge, is the first time that we
have seen a draft of your bill that is appended to your statement.
Now, what is the reason for that? This is very important legislation
from many viewpoints, many viewpoints. It would occur to me that
the Department of Justice had a responsibility of at least getting a
look at our bill and determining what the objections are and offering
suggestions so, to quote you, so that we would avoid the pitfalls that
H.R. 5615 presents.
Mr. KEL'CH. I quite agree, sir, and I think it is fair to state that there
have been a series of communications and conferences with the staff
over the drafting of your bill, et cetera. I hope I am not giving away
covert information myself in indicating that I am sorry that the De-
partment draft arrives here as late as it does. There were attempts to
try to reach an accommodation between the views of the other parts
of the executive branch and the Department on the House bill and
other proposals that have been made in this area. Those attempts went
on right up to as late as a week or a few days ago. While, I think one
of the earlier gentlemen stated it may be embarrassing for various
parts of the executive branch to be here with different views, I think
this is an area where the issues are very complex, reasonable minds can
reasonably differ, and an area where we have traditionally, I think, we
come up with somewhat different approaches to these problems to this
committee.
Mr. BOLAND. You are not telling me that they made an effort to draft
this bill and write it up 2 days ago.
Mr. KEUCH. Oh, no, sir, no. Those efforts were continuing on, how-
ever. This bill has been in the drafting stage for a period of time, as
have discussions with the staff on your bill. I am trying to indicate that
the efforts to reach an accommodation of viewpoints continued up un-
til a few days ago, and that, I think, unfortunately may have delayed
our submission of the matter. However, I think that our concerns with
the drafting of the bill, as I stated, I believe it is fair to say, have been
known to the staff through the process of discussions of members of the
Denartment with the staff.
Dir. BOLAND. Well, the drafting of the bill-what was in it I don't
know whether or not was known to the staff. Was that available
Mr. KEVCH. I'm sorry, sir. I was referring to our discussions of the
formulation of the House bill and our feelings of what world perhaps
better be a solution.
Mr. BOLAND. You suggest that the specific intent requirement
of section 501(b) may have a chilling effect upon legitimate speech.
By this do you mean that this section might be unconstitutional?
Mfr. KFTTCTI. Well, we think it raises questions of constitutionality,
but. I think our prime concern is that it dues have the chilling effect so
that even if the individual who had that necessary intent-if -on look
at it, is the bill constitutional on its face, the individual who 'has that
type of intent and who commits these acts, we think that meets consti-
tutional muster. Our concern, however, is that particularly since the
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bill provides, and I think correctly so, that the mere disclosure of the
identity of covert agents will not in itself be taken as evidence of that
intent, then you have to look at other matters. And what are those
other matters going to be?
I think some of the responses that have been made here this morn-
ing well point out those other matters are going to have to be the in-
dividual's prior positions on our intelligence operations, the individ-
ual's announced intent as to what he was doing, and I don't think we
should delude ourselves that once, if this legislation were passed, that
those statements of intent and those mastheads and those intents will
not be changed. In fact, I have found it interesting that in the litiga-
tion just recently over the passport, one of the attorneys for a gentle-
man that has been discussed here this morning indicated he was try-
ing to improve our intelligence capabilities. It was an argument that
was made to the court.
So I think our concern is that if you are going to look outside the
mere disclosure of covert agents to determine what an individual's
motive and purpose is in making that disclosure, you have to, of neces-
sity, get into his prior positions on the intelligence capabilities,
whether or not he has criticized or been critical of the Agency or not.
And of course, the first amendment is intended to cover a very broad
range of people, you know, far beyond the Washington Post and the
New York Times, those who have been extremely critical of our opera-
tions and of our intelligence operations, and what concerns us is that
if you are going to look at that type of information for proof of the
intent of the individual when he later makes a disclosure, we think
yes, that that has a potentially chilling effect.
Mr. BOLAND. Thank you.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Illinois, Mr. McClory, is recognized for 5
minutes.
Mr. McCLORY. Thank you, Mr. Chairman.
I seem to recall that about a year ago you were sitting there as a
witness and you indicated to the committee that you felt that the
existing laws were sufficient for purposes of prosecuting unauthorized
disclosures of classified information.
Mr. KEUCH. Yes. sir.
Mr. MCCLORY. And what bothers me is that we seem to adjust our
view with regard to the adequacy of the laws dependent upon politi-
cal policy statements that are made by the administration or by the
President, and today, with a new direction in foreign policy and a
new, tougher line as far as strengthening the intelligence community,
you and other branches of the executive department are supporting
amendments to legislation, including this bill and other bills that we
have made reference to.
What, if anything, has actually happened insofar as your prosecu-
tions or nonprosecutions of persons who have made unauthorized dis-
closures that alters your position and indicates support for some
legislation, if only the bill that you are recommending?
Mr. KEUCHi. Sir, I can't say that anything has happened in the con-
text of our prosecutions or investigations of individuals who have
disclosed classified information. I think we are discusseg, however,
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under one term two different considerations. One is whether or not we
believe-and I think I did testify, and I have again this morning
that it has been the Department of Justice's view that the present stat-
utes do cover. this type of activity. On the other hand, that does not
bar the fact that there can be advantages to more specific legislation
that has different standards and avoids some of the problems that we
have in the present statutes. And the Attorney General indicated his
support for that.
I might say that this is not a new change. It was the Attorney Gen-
eral named Griffin Bell who, at a meeting with the Director of the
CIA almost a year ago, I think, pledged the Department's support to
help this committee and the agency draft legislation in this area.
So again, I don't think I can say there has been a change because of
prosecutions or failure of prosecutions, but certainly we believe that
there is an advantage to this more limited and specific bill.
Mr. McCLoRY. Do you think that there is-do you attach such im-
portance to the utilization of the expression "reason to know" as op-
posed to the word "know" alone to be such that the legislation is
faulty ?
Mr. KEUCH. I'm sorry, sir, the fact that it is
Mr. McCLORY. You stated that you would consider it difficult to
prove a case where you-or that you would question the validity of our
bill where we use the expression "reason to know." You referred to
scienter-that you would have to know. It wouldn't be sufficient if
a person had reason to know that his disclosure would impair or im-
pede the intelligence capabilities of the United States.
Mr. KEUCH. I'm sorry sir. May I give you a better response to that,
a written response?
I apologize.
Mr. MCCLORY. Well, let me ask you this. In response to the question
by the gentleman from Massachusetts, you said that you had doubts
as to the constitutionality of portions of this legislation, I guess 501
(b).
What I would like you to do is to furnish us with a letter advising
as to the constitutionality or nonconstitutionality of that provision or
any other provision, because we don't want to proceed in any uncon-
stitutional way. But I think that if you are questioning constitution-
ality, I would like you to back it up by an opinion. (See appendix A.)
Mr. KEUCH. Yes, sir, and I think I would like to make it clear
that what we say-and we believe the specific intent requirement,
which I think was an addition after discussions between the staff
and the Department or at least was an evolution of the House bill,
goes a long way toward solving constitutional questions as to the
facial applicability of the statute-but our concern in the constitu-
tional area is primarily just as I indicated, that is, the chillinn effect
it may have on honest and sincere criticism of our intelligence
operations.
Mr. MCCLORY. Do you not believe that personnel who are working
for or formerly worked for the FBI should be covered equally with
the CIA?
Mr. KEUCH. Yes, sir. I do; and I think that was an unfortunate
oversight. I have talked to the FBI about that, and I think certainly
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38
in those operations which, under the Executive order on intelligence
activities, the FBI is permitted to conduct overseas, it should be
covered as this coverage goes to other agencies, certainly.
Mr. McCLoRY. In the earlier statement by Mr. Carlucci, lie referred
to Mr. Civiletti's statement that revealing the identities of particular
intelligence personnel and placing them in danger serves no legitimate
purpose. Our proper concern for individual liberties must be balanced
with a concern for the safety of those who serve the Nation in difficult
times and under dangerous conditions.
Has anything changed since he made that statement, or do you
support that statement now?
Mr. KEUCH. I certainly do.
Mr. MAzzom. The gentleman's time has expired.
The gentleman from Georgia, Mr. Fowler, is recognized for 5
minutes.
Mr. FOWLER. The Justice Department, Mr. Keuch, did it not sup-
port our graymail legislation that we marked up yesterday?
Mr. KEUCH. I'm sorry, sir, did not or did?
Mr. FOWLER. It did.
Mn KEUCH. Yes, sir, yes, indeed; enthusiastically as I recall.
Mr. FOWLER. In your statement, on pages 7 and 8, you note that "the
intent element will facilitate `graymail' efforts by a defendant."
Now, I think we all agree that under any intent standard, that would
be, being subjective, that would be a jury question, would it not?
Mr. KEUCH. Yes, sir.
Mr. FOWLER. I can't-help me out here. I can't quite see how any
information provided by the Government as to actual CIA opera-
tions would be useful to disprove a defendant's subjective intent. In
other words, if a defendant claims that he made a certain disclosure
because he thought the CIA was promoting bad policy in a certain
country, that would be to his defense on the issue of intent, but why
would what the CIA be doing or not doing in any place be relevant to
intent?
Mr. KEUCH. I don't think it is a question of disproving his intent
from our point of view. It would not be the primary concern. It would
be that the individual could well argue that his overall intent or his
purpose--and what we are talking about is motive and purpose in
this situation-is to improve our intelligence agencies. And one ex-
ample I can quickly think of, and I am sure there are many others,
if he had disclosed a series of assets or covert agents in, say, Portugal,
which was a country raised this morning, he might argue that the
fact that we operated such assets and that we used those activities had,
in fact, had an egregious diplomatic foreign affairs impact on our
ability to conduct other intelligence programs in Portugal. And he
would be arguing, saying, Look, I am trying to say that is a particu-
lar-and maybe, perhaps, we could just say country X, rather, be-
cause I don't know the situation in Portugal-but that is a situation
where we would have been benefited if we had not used this type of ac-
tivity of covert agents. We should not have used this class of individual
as covert agents, and to prove that, to establish that, Mr. Government
and Mr. Court, I need information to show what the effectiveness of
our intelligence programs was both before and after I made these dis-
closures-what they were before and after we used this type of asset
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and informant; I would like to know what diplomatic objections or so
on had been made.
Mr. FOWLER. That's a good argument, that's a good defense, but
it seems to me that is irrelevant to the question of his intent to dis-
close. He is just arguing the reasons for his disclosure, not the impact
of the disclosure.
Mr. KEIICH. That's correct, but his reasons are to improve intel-
ligence capabilities, and he says this to prove that he was doing that.
Mr. FOWLER. But that's the element of scienter.
Mr. KEUCH. Well, but he is going to say
Mr. FOWLER. I don't care what he is going to say. He can say any-
thing he wants to. That is the defense. That is irrelevant, would not
you say, as a lawyer, to the issue of scienter?
Mr. KEUCH. Sir, I might make that argument. I would certainly
try to defend against it on relevancy grounds, but I think it is very
I ikely the court would rule that the defendant has a right to explore the
effectiveness of those programs, to explore the adverse impact they
may have had, and so forth, to support his argument, his argument
that his intent, as shown by the objective record, was to improve our
intelligence operations rather than harm them, and that is our concern.
Mr. FOWLER. So what you are asking us to do to insure not only
effectiveness but the constitutionality of legislation is to eliminate
our section 2 of the bill, based on basically the discussion that we have
had this morning, and substitute yours. Is that correct?
Mr. KEUCH. Yes, sir.
Mr. FOWLER. Suppose we adopt your section 801, which would pro-
hibit the knowing disclosure of information correctly identifying cov-
ert agents by any person acting with the knowledge thst the disclosure
is based on classified information, and that person is a journalist,
wherever he was. Is that going to change your policy toward prosecut-
ing journalists?
Mr. KEIICH. It seems to me that if he acts consistent with the stand-
ards of the bill, that is, with knowledge that it comes from classified
information, our position today is that the journalists today are as
subject as any other American citizens to the Criminal Code. There
would certainly be no difference in their being subject to the code in
this circumstance.
Mr. FOWLER. Would that get us back into the sources debate if-I
have forgotten, what is the law now, after all the cases, on whether or
not a journalist has to reveal his sources?
Mr. KEIICH. I think the law generally is no, absent some overwhelm-
ing-I think there is a hearing and showing that first amendment
issues are fully litigated and the rest, but I think there are two pro-
tections here, and one is the fact that first, it comes from classified in-
formation, and the other is that the definition and the coverage of the
bill, the definition of covert agents, which is the information that is
being covered in the bill, it is very limited.
Mr. FOWLER. You are talking faster than I can think.
Mr. KEIICH. Sorry. I may be talking faster than I can think. That
may be the problem.
Mr. FOWLER. I thought because of my background I might say it
politely.
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The question is, you have got to prove that he knowingly disclosed
this classified information. Now, he comes to you, he writes the column
and says this and that, and it is classified information, and you go
after him.
Now, how are you going to find out where he got it and whether or
not he knew it was classified?
Mr. KEUCH. Well, that is exactly the problem we have under the
leak issues we have discussed with this committee so many times in
the past. It is a question of proof. But if we could pass statutes that
would absolve our need to find appropriate proof and meet other
standards, of course, our job would be a lot easier.
If we cannot establish that he disclosed a covert agent-and what I
was trying to say earlier was the definition of covert agent is some
protection also In this statute and in the House bill because it is P. cover
status that has been maintained by the Federal Government. So if it
has now become public knowledge and the Government has officially
released it, and so forth, there wouldn't be that type of coverage, but
if we can show that he took the information concerning the covert
agent with knowledge that it came from classified sources, then we
feel we would have a case.
And of course, with knowledge that it came from classified sources,
just as his intent, would have to come from all the surrounding cir-
cumstances. But our belief is that those circumstances are objective and
are based on factual matters rather than an analysis of the individual's
motives, his previous statements or positions on the agency or intelli-
gence operations
Mr. FOWLER. Just one further question.
Mr. MAzzoLL The gentleman's time has expired.
I will recognize myself and yield my time.
Mr. FOWLER. Thank you very much. I was going to give up my future
time, but I just think we ought to hammer something down after we
have sat here this far.
You heard our discussion this morning from Chairman Boland and
myself about any legislation that would prosecute based on informa-
tion, revelations derived from unclassified information, and I take it
from your testimony that, simply and boldly put, any legislation that
we would draw along that line would simply not stand any constitu-
tional test.
Mr. KEUCH. I think without the other narrowing effects of the
bill, I think that is correct, sir, and of course, we feel that the Depart-
ment's draft in that area is limited to a narrow class, that is, former
employees and agents, and so forth, as the House bill is, too, and again,
here again the definition of covert agent is some protection. So the
individual who did have access to this information under a condition
of trust, who knows that the information revealed reveals a covert
agent, even though it does not come from classified sources, he uses
the expertise, the knowledge, the "Rosetta stone," if you will, of his
experience, we believe that we can constitutionally reach that indi-
vidual. But if the U.S. Government has already made the identity of
the agent public, other than by the fact that once he uses the "stone"
of his experience to make that determination from otherwise public
sources-I don't mean that but I mean some public disclosure-that
would not be reached.
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Mr. FOWLER. Thank you.
Mr. MAZZOra. Mr. Keuch, let me ask you one time again because I
may be a little bit thickheaded this morning, is the Department of
Justice behind new legislation in this field of identity of covert agents?
Mr. KEUCH. Yes, sir.
Mr. MAZZOLL Let me ask you for just a moment, in an area in which
you have been questioned already this morning, and that is this addi-
tional standard of classified data, that in the terms of the person who
receives information in an authorized form and who then later in un-
authorized form reveals it, that is a crime so long as the information
is based on classified data.
Am I correct or incorrect?
Mr. KEUCH. No, sir. If the individual received it under 802 of our
bill, if the individual has received it in a position of trust, he has re-
ceived it because of his prior position, and he discloses information
which identifies a covert agent, he is guilty of a crime whether or not
that information comes from classified sources or unclassified sources.
Now, there is the protection, as I have just indicated in the last
answer, that the covert agent must b-that covert status must have
been maintained by the Government.
Eight hundred and two of the bill, for example, says, whoever,
either having been an employee, et cetera, with access to information,
knowingly discloses information that correctly identifies another per-
son as a covert agent, or attempts to do so, is guilty of an offense. That
has no requirement, unlike section 801 of our bill, that it comes from
classified information.
Mr. MAZZOLL Well, now, is 801 comparable to our 501(a) ?
Mr. KEUCH. Yes, sir, I think the two are fairly comparable.
Mr. MAZZOLI. Well, then, you do add classified information.
As I understand our 501(a), it does not have to be classified infor-
mation or information based on classified data, is that correct as you
understand it?
Mr. KEUCH. Yes, sir, except that under 501(a) (i). the identity of
the officer, employee, or member is classified information, which I
think is comparable to our definition of covert agent.
Mr. MAZZOLI. Well, it may be, and of course, unfortunately you
just served as with this bill today so we really haven't had a chance
to get into it carefully, which we shall in the days to come; but if 1
read 801, you are adding a very important element of proof for the
Government, and that is that the disclosure. which is unauthorized,
has to be based on classified information, not that the name has been
classified or the identity is being blown, but that that knowledge has
come from classified information.
I earlier asked you today about the person who hears information
at the water fountain, or a person who gets a piece of paper across his
desk without a classified stamp which does blow an identity cover,
because it concerns me. That kind of information, under our 501, would
indeed be enough to amout to a criminal offense. Under your bill it
would not, if I understand correctly, because that would not be classi-
fied information or information based on classified information.
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Mr. KEUCH. Except the only problem with that, sir, as we were
discussing, the section of our bill that imposes that is one that ap-
plies to anyone, and the individual who has paper coming across his
desk as a result of his official position or his employment with the
agency would come under section 802 of the bill, which only provides
that the individual having had that type of access discloses a covert
agent. There is no requirement in 802 that that came from classified
information.
Mr. MAZZOLI. I thank you for your time. Are there any follow-up
questions?
The gentleman from Illinois?
Mr. MCCLORY. Are there any cases that you have now in litigation,
under the existing law, against persons that have violated the existing
law?
Mr. KEUCH. Well, sir, I can certainly state that we have no cases
under litigation, that is in the public courts and the rest.
As to the response to the rest of the question, I think I would like
to answer that in executive session. I certainly would be glad to. I
think I have on other occasions.
Mr. MCCLORY. Now, what about people that you know, should know
have possession of classified material that they have received in an
unauthorized way? Are we doing anything about trying to get those
back through litigation or
Mr. KEUCH. Again, I hate to respond in the same way, I am sorry
I have to, but I would like to discuss those in executive session of the
committee.
Mr. MCCLORY. Well, there is nothing pending. If it was pending, it
would be public knowledge.
Mr. KEUCH. There is nothing pending in the court, sir, I will say
that. That is correct.
Mr. McCLoRY. Let me ask you this. If we enact this legislation, either
in the form that the committee wants it or that the CIA wants it, or the
form you want it or however, are you going to use the legislation to
prosecute offenders?
Mr. KEUCH. Of course, the answer to that has to be yes, but if what
you mean is will the passage of this legislation result in a spate of in-
dictments, I am sorry, but I think that all the discussions we have had
in the past concerning our problems in this area, in leak cases, classic
espionage cases and the rest, are still going to apply. Certainly our
burdens will be changed, there will be new considerations, and as I
have tried to say, the Department supports this legislation, we think
it is an important area to act in. We think that the actions that have
been taken in the past in disclosing agents are reprehensible, and I
think the language used this morning was not too strong. But I cer-
tainly can't sit before you and say that if the legislation is passed,
that we will then turn around and render a number of indictments.
But certainly we will vigorously enforce the law.
Mr. MCCLORY. Well, this subcommittee yesterday had a markup
session of the so-called graymail bill, and we are intending to move
that ahead, even ahead of this bill. But you want that bill, don't you?
Mr. KEUCH. Yes, sir.
Mr. MCCLORY. And you intend to utilize it if we enact it?
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Mr. KEUCH. Yes, sir, and that bill may, we hope, and it is designed
to, and as we supported it and urged its passage to avoid some of the
problems that I have indicated exist in this area.
Mr. MCCLORY. And that bill, coupled with this bill, could be both
useful in connection with prosecutions, couldn't it?
Mr. KEUCH. Absolutely, yes, sir.
Mr. MCCLORY. And you want both pieces of legislation?
Mr. KEUCH. Yes, sir.
Mr. MCCLORY. And you will utilize them?
Mr. KEUCH. Yes, sir.
Mr. McCLoRY. Thank you.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Georgia is recognized for five additional
minutes.
Mr. FOWLER. Thank you, Mr. Chairman.
Is this-in the intent standard, isn't that basically the same as the
criminal standard in the Atomic Energy Act?
Mr. KEUCH. I don't believe so, sir. I think the-I am embarrassed.
I am very familiar with the title 18 espionage statutes but-
Mr. FOWLER. Well, I couldn't quote it either.
Well, let me just ask you, without taking up my time, I have got it
here, and I think it is.
Mr. KEUCH. All right.
Mr. FOWLER. So I would like to know how the intent element is
handled in prosecutions under the Atomic Energy Act.
Mr. KEUCH. Certainly.
Is that 4122, sir, or what is the number?
Mr. FOWLER. 2274.
To follow up on Mr. McClory's question, our impression, rightly or
wrongly, is that the policy of the Justice Department has been one of
reticence toward the prosecution of journalists who knowingly pub-
lish classified information, and the previous position of the Justice
Department was that the conspiracy and disclosure laws of the coun-
try were adequate.
Now, I guess we are all applauding the change, that you had found
that they were not adequate or you wouldn't be asking for this legisla-
tion, your own version of the legislation. I wish you would speak to
the fact of whether or not, if we enact such legislation, if we will see a
change in the Department's policy to prosecute whatever violations
are found.
Mr. KEUCH. Well, it is a simple answer, and I know that it is one
that we have discussed before this committee at great length, so I
would say the simple answer is that, as I have indicated earlier, we
certainly believe that there is no segment of the society, whether it be
the executive branch, the judicial branch, or our friends in the fourth
estate, who are above the law, and we would apply the statutes to those
individuals. One of the reasons we think that the Department of Jus-
tice's version of this bill at least, or within this effort is an effort that
should be taken, is that it does narrow down the applicability of some
of the present statutes. So it may remove some of the policy issues and
questions that arise when you attempt to apply the broader espionage
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statutes to the leak area, whether that leak is of covert action or covert
agents, or of some other intelligence operation.
But the problems that exist in investigating, in prosecuting indi-
viduals who speak in our public fora for espionage cases is a principal
problem we are going to have to live with under whatever statute we
pass, and I think it is a balance and a problem that has to be faced
most carefully.
I cannot say that there will be a change in the prosecutive attitude
of the Department of Justice with the passage of this legislation be-
cause I believe that we now have the attitude that we will prosecute
for violations of the statute where it is appropriate and where those
violations are clear and a criminal law has been violated, if we can get
the necessary evidence.
Mr. FOWLER. Let me conclude by asking you to submit, along those
lines, your reaction to the comments of Mr. Abrams.
Mr. KEUCII. All right, fine, sir.
Mr. FOWLER. Second, we would like to have in writing what you con -
strue to be the meaning of the phrase "based on classified information"
in your version of the bill.
And last, any elaboration of your statement about the chilling effect
on the general speech of our section 501 (b), whether or not you want
to say that again, blatantly, what I think you are going to say, that
you believe that is unconstitutional. (See appendix A.)
Mr. MAZZOLI. Thank you very much.
The gentleman from Massachusetts for the final, followup questions?
Mr. BOLAND. Mr. Chairman, I just want to compliment Mr. Keuch
for his appearance here today. He has thoughtfully discussed some of
the problems that we may have in the bill and questions that we have
with respect to it, and that is the very purpose of these hearings. And
I would hope that if we get an identities bill passed, that the
Justice Department would believe that the Congress is concerned about
this matter, and that the Justice Department ought to share that
concern.
Thank you very much.
Mr. MAZZOLI. I thank the gentleman, I thank Mr. Keuch, and we
appreciate your help this morning.
And for the final witness on the morning hour, we would welcome
Mr. Floyd Abrams, who is considered one of the eminent authorities
on the first amendment in the United States.
Mr. Abrams is a partner in the firm of Cahill, Gordon & Reindel.
Ho teaches at the Yale Law School a course entitled "The First
Amendment and the Media," and is chairman of the Committee on
Freedom of Expression of the Litigation Section of the ABA.
Mr. Abrams was cocounsel to the New York Times in the Pentagon
Papers Case, and was counsel to Random House in connection with
litigation arising out of the publication of material by Victor Mar-
chetti and Frank Snepp.
Mr. Abrams has argued in the Supreme Court on behalf of the press
in several cases, including Herbert v. Lando, Nixon v. Warner Com-
munications, Nebraska Press Association v. Stuart, and Landmark
Communications v. Virginia.
Mr. Abrams, you are welcome and we appreciate your help.
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STATEMENT OF FLOYD ABRAMS, ESQ., COMMUNICATIONS COUNSEL;
CHAIRMAN, COMMITTEE ON FREEDOM OF EXPRESSION OF THE
LITIGATION SECTION OF THE AMERICAN BAR ASSOCIATION
Mr. Asxaass. Thank you.
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. I will also comment briefly on H.R. 3357, the legislation intro-
duced by the majority leader as to which he testified this morning.
I wish to emphasize, if I may, at the outset that I appear and speak
on my own behalf today and not on behalf of any clients with whom I
may sometimes have become associated.
That being said, I think it is useful and appropriate for me to ad-
vise the committee at the outset as to the personal framework within
which I approach any review of H.R. 5615.
My own view is that the naming or listing of undercover intelli-
gence 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 appear as one who believes that covert intelligence opera-
tions, within proper bounds, constitute one useful and significant func-
tion of any intelligence service. And I appear as one who believes, as
I am sure every member of this committee believes, that in considering
legislation in this delicate area, it is essential to adhere to the com-
mands of the first amendment ; that legislation threatening to any de-
gree, freedom of expression must be narrowly and not broadly drafted;
that in areas of doubt, we must take the risks of freedom and not of
repression ; and that as Supreme Court Justice Potter Stewart has
said: "So far as the Constitution goes, the autonomous press may pub-
lish what it knows, and may seek to learn what it can."
All that being said, I appear before you for the primary purpose
of urging upon you that section 501(b) of the proposed legislation is
flatly and facially unconstitutional ; that it is, as well, unwise ; and
that, on reflection, it should be rejected. And I appear to urge that sec-
tion 501(a) is, as now drafted, of extremely dubious constitutionality,
but that the heart of what I understand section 501 (a) seeks to ac-
complish can, I believe, be constitutionally accomplished.
Now, as the committee is well aware, and as all the witnesses this
morning have indicated, the proposed legislation deals with two sepa-
rate categories of individuals. The first are those who have or have had
authorized access to classified information. The second relates to all
others. I will direct the major thrust of my remarks to the second cat-
egory, section 501(b), although I will offer a few suggestions at the
conclusion of my statement about the first.
On its face, section 501(b) would permit the criminal prosecution
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 attempting to keep secret, and publishes
or otherwise discloses it. That person and those entities, under section
501 (b). may be charged with a felony and sentenced to 1 year in prison,
or fined $5,000, so long as a jury finds that such disclosure has been
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made, and that the intention or purpose of the disclosure was "to im-
pair or impede the foreign intelligence gathering operation of the
United States."
The effect of such a statute would be startling and unprecedented.
Under its terms, when Francis Gary Powers was captured by the Rus-
sians for overflying their airspace in a U-2, every publication in the
United States that published Mr. Powers' name would have been sub-
ject to criminal prosecution under the statute until the executive branch
of the United States had publicly acknowledged or revealed the in-
telligence relationship to the United States of Mr. Powers. Such pros-
ecution would have been possible, notwithstanding the fact that Pow-
ers' name was widely, indeed internationally known ; that the Russians
had themselves revealed Mr. Powers' capture, and that, indeed, Mr.
Powers was then facing charges in the Soviet Union. It is true that
under the statute, all who mentioned Powers' name could have de-
fended on the ground that they did not "intend" to "impair or impede"
the foreign intelligence activities of the United States. But the effect
of this would simply have been to permit different results as to differ-
ent individuals who had done precisely the same thing, to disclose what
had already been disclosed.
I would go further. Subject to its exceptions, the statute would not
only have made it a crime for the news media to disclose Mr. Powers'
name, but for each and every American who read it or heard it to re-
peat the name. Under the statute, no matter how often the name had
been heard or reheard, no matter how well known an individual was,
each individual who mentioned the name would have been subject to
criminal liability, subject, of course, to the intent provision of the
statute.
Let me offer another, earlier, example. In 1958, another American
pilot, while flying for the CIA, was shot down, this time in Indonesia.
According to the book "The Invisible Government" written by David
Wise and Thomas Ross, the pilot, Allen Pope, was initially held by
the Indonesian authorities; he was then publicly tried for the murder
of civilians and sentenced to capital punishment. In 1962, 2 years later,
he was released. Under proposed section 501(b), the authors of The
Invisible Government, the publisher of the book, and each and every
reader of it who repeated Pope's name would have risked criminal
prosecution.
And I would note here, and I think it is relevant in light of the dis-
cussion this morning as to the intent provision of 501 (b), that the Cen-
tral Intelligence Agency was extremely unhappy about the publication
of the book The Invisible Government, a book which was widely and
favorably reviewed in the Nation's press. It is precisely in cases such
as this that the "intent" exception of the statute is of least assistance
to a prospective publisher. It is one thing to say that a publisher which
in fact did not intend to impair or impede the foreign intelligence ac-
tivities of the United States should be acquitted of a crime. I am con-
fident in this case it would have been. It is quite another to say that the
CIA at the time The Invisible Government was published would not
have sought prosecution, if it could have done so, or that it would not
seek to do so if a similar situation were to recur.
One could cite many other examples of material which I believe
should have and should be published. and as to which publication
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under section 501(b) would subject all concerned with prospective
criminal liability. What of, for example, a situation in which it is
learned that an intelligence operative is acting illegally under Amer-
ican law by, for example. spying on Americans who have done nothing
wrong but oppose those in power? `'ghat of a student who learns that
his professor has been recruited by the CIA in violation of law, and
-wishes to tell others of that fact? What of any instance of criminal
wrongdoing by the CIA or any other intelligence operation? On its
face, section 501(b) puts at risk all who would disclose such illegal
acts, whether they refer to the name of the individuals who have com-
mitted the acts or simply provide any information from which such
identification could be made.
These examples illustrate some of the ways by which section 501(b)
may operate to restrict freedom of expression. At its core, I believe
section 501(b) flies in the face of a first principle of the first amend-
ment : While the Government may try to keep information secret, the
disclosure of information which has already become public may not
be criminally punished. Indeed, as phrased by Chief Justice Warren
Burger :
The Government cannot restrain publication of whatever information the
media acquires and which they elect to reveal.
Beyond these objections to section 501(b), I would urge the com-
mittee to consider this question : Law aside, even constitutional law
aside, is it really necessary for the first time in our Nation's history to
attempt to make criminal the publication of material which is essen-
tially within the public domain?
Ambassador Carlucci has testified this morning, as I understood
him, that even if all the information that an individual, a reporter,
for example, were to gather were of a public nature, that there still
could be criminal liability. The distinction he drew between a single
case of publication by a journalist and many cases of publication by
a journalist finds no support in the proposed statute, or, so far as I
know, in any other body of law. If it is illegal, if it may be illegal for a
journalist to publish the name of an intelligence operative gathered
from public sources in one way or the other, it is just as illegal in a
simple case as it is in a number of cases.
Now, beyond these objections I have one more. It seems to me that
whatever you may decide to do, whatever legislation you may decide
is appropriate, with respect to the disclosure by CIA agents, present
or former, that you should adopt no legislation which bars the rest of
the American people from disclosing fully the activities of their Gov-
ernment of which they have already learned. To do otherwise would
not only deprive the public of information, it would deprive us all of
credibility as we deal with each other, the press with the public,
citizens with each other.
As for section 501(a), I have the following briefer comments. First,
it seems to me that legislation drafted to assure that agents do not
disclose the identity of their colleagues in the intelligence service is
constitutional. Specifically, H.R. 3357. it seems to me, is as a general
matter constitutional, and for what it is worth to you, as a general
matter, I believe it is probably a wise statute as well.*However, section
501 (a) as it is now drafted is, I believe, flawed in a number of ways
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which I would urge requires serious consideration by the committee
if the committee does not choose. to move in the direction of H.R. 3357.
Most important of these- is what I believe to be the overbroad lan-
guage of section 501(a) which makes it criminal not alone to disclose
the identity of an intelligence officer or the like, but to disclose "any
information" that identifies the individual. I appreciate the concern
that there may be some instances in which disclosure of something less
than the agent's name may in fact lead to his ultimate disclosure.
Nonetheless, it is imperative for constitutional reasons that' the statute
be limited in some fashion so as to make criminal only the disclosure
of the identity of the agent or other employee, or of information which,
in and of itself, identifies or necessarily leads to the identification of the
agent. The words "any information" in section 501 (a) are so broad,
so sweeping, so susceptible to differing interpretation that they may
well not give sufficient notice as to precisely what may or may not be
said.
Beyond this, I believe that any statute should, at the very least,
allow a defense to be made that the material in question was not in
fact classified, that the Government should be required to prove, as
presumably in this area it could often prove, that the identities have
been classified, and that the Government should be obliged to prove,
as well, that the material is still validly classified.
Additionally, I would urge upon the committee that the Govern-
ment be obliged to demonstrate that an agent who is accused under
section 501 (a) had learned the information in question during the
course of his service. If, however, he is long out of the Agency-and
the longer he is out of the Agency, the more significant the constitu-
tional difficulties-it seems to me a dubious constitutional result to
allow the commencement of criminal prosecution on the basis of in-
formation which the former agent may have learned entirely outside
the ambit of his service.
Further, it seems to me appropriate that the statute contain some
provision allowing a defense in situations in which the individual
whose name is referred to is himself or has committed crimes under
American law. To do otherwise may shield the CIA and other intelli-
gence agencies from a kind of whistle blowing which all of us, I would
think, would believe is in the national interest.
Finally, if some form of section 501 (a) is to be adopted, I would
strongly urge that it make clear that no journalist may be investigated
or called to testify before a grand jury, simply because he or she pub-
lished an article identifying, in some fashion, an agent.
Members of the committee, it is not easy when the CIA comes to you
and seeks legislation which is designed in good faith to protect the
lives of those who work for us all, for you to conclude that the legis-
lation goes too far; that other factors must be taken into considera-
tion; that there are in fact countervailing interests. But the interests
that I would urge upon you in rejecting section 501 (b) and narrow-
ing section 501 (a) are not small ones. Judge Murray Gurfein, in decid-
ing the Pentagon Papers case in favor of the New York Times put it
this way: "The security of our Nation is not at the ramparts alone.
Security also lies in the value of our free institutions."
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That says, as well as any words known to me, what I believe this
committee should bear in mind as it engages in the difficult task that
lies before it.
Thank you.
Mr. MnzzoLI. Thank you very much, Mr. Abrams, for a very in-
formative statement and delivered by a person who has a lot of ex-
perience in the field.
Let me at this time, since the gentleman from Massachusetts, our
chairman, has a time problem, perhaps he would wish to lead off on
questions.
Mr. BOLA\ D. Let me j ust ask a couple questions.
First of all, I appreciate your statement. It is done beautifully, and
you delivered it beautifully, too.
Mr. ABRAMS. Thank you.
Mr. BOLAND. It is a clear indication of your long service in this
particular area. Your knowledge in this area has made this statement
today a very clear one and a very forthright one, and I think you have
helped this committee, too.
You were here when Mr. Keuch testified with respect to the Depart-
inent of Justice proposal.
Will you comment on that, or
Mr. ABRAMS. I can, Congressman Boland. Unfortunately, I just saw
it this morning for the first time, and I
Mr. BOLAID. We did, too. You can carry it back with you and if you
would like, you may do it for the record.
Mr. ABRAMS. I would like to submit something, if I may. (See
app. B.)
In general, however, there are a few things which I observe on first
reading which I would be happy to point out to the committee.
First, as is evident from my own statement, I share the views of, the
Department about the possible chilling effect on publication of the
language in section 501(b) relating to intent. If there is one thing I do
for a living, it is to advise publishers, authors, prospective writers, and
I have to tell you that if I were in a situation in which a journalist
were about to publish an article, even an article coming from what I
would consider in lay terms to be the "public domain," where other
people had already mentioned a prospective agent, for example, and
the journalist were to ask me what threat there was of criminal prose-
cution under section 501(b), I would have to do the following. I would
first of all have to offer a kind of political judgment, how likely is it
that the Department of Justice is in fact going to prosecute. I am no
better at that than anyone else, but that is one factor as a lawyer, that
I would have to take into account.
Second, I would have to say the Governmment is probably going to
be likely to be allowed to introduce about anything it wants to prove
your intent "to impair or impede," including, for example, your
prior stories, things you may have said to friends, anything you may
have written. There would be interrogation as to your state of mind,
of a very probing, intrusive nature. And I think I would have to
say that I just don't know how a jury would likely come out, par-
ticularly in the kind of cases that these often are. These are very often
high publicity cases in which what a journalist has done is sometimes
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disagreeable to a large percentage of the American public, just the
kind of case that the first amendment is designed to protect a jour-
nalist in.,
But if it becomes then a question where the statute is violated,
apart from the intent requirement, where I must tell the journalist that
publishes, say Colonel Powers' name violates the statute, but that I
am confident that no one is going to prosecute, or that I am confident
that a, jury is not going to find that he intended to impair, I am taken
into an area as counsel where I think I am opining really beyond the
normal, traditional sphere of a lawyer's role, and the reason I am
taken there is the kind of intent language which 501(b) now con-
tains. I cannot, in short, advise with confidence; I must combine po-
litical judgment with guessing about likely jury responses.
Beyond that, I do not find very reassuring, at first reading at least,
the language of the Department of Justice in their section 801 which
seems to apply and is designed to apply to everyone, the press included,
and is not limited to people with intelligence backgrounds or in the
intelligence service.
I understand what you were told this morning, and as I have
said, I share it, about the chilling effect of the "impair or impede"
language. I am not clear how 801(a) in the Department of Justice
bill answers that; 801 (a) says whoever knowingly discloses infor-
mation that correctly identifies another person as a covert agent, with
the knowledge that such disclosure is based on classified information
et cetera, is guilty of an offense. In most of the examples I have cited
to you, it would be "knowing" by hypothesis at least. I have cited to
you examples where it would be a correct identification. I haven't been
able to study the definition of the Department yet enough of "covert
agent," but I am none too clear whether what the Department of
.Justice has done is to take out a provision which I am sure was writ-
ten for the purpose of deterring prosecution in some cases, the impair
or impede language, and insert nothing else, no additional protection
against just that kind of prosecution.
Now. I may misread it because I just did get it this morning, but
at least on first reading, I am just not clear what it is that the De-
partment is offering as it cures the problem that it perceives and that
I perceive in the "impair and impede" language.
Dlr. BOLA\D. Could you venture an opinion as to whether or not it
is now a crime under any of the existing espionage laws to disclose
the names of undercover agents?
Mr. ABRa1IS. I would like to answer that in two parts, and the second
part relates to the publication as opposed to the- disclosure.
There is an open legal question-let me do the second firs--there
is an open legal question, as the Department's submission to you this
morning indicates-as to whether "publication" as opposed to dis-
closure in some other fashion. is in fact covered in some of the pro-
visions of the espionage law. It is clearly covered under the Atomic
Energy Act, it is clearly covered with respect, to the disclosure of codes
because both those laws say so. They say publication may not be made,
et cetera.
The word "publication" is not contained in any of the other pro-
visions of the Espionage Act. The position that I have taken for clients
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of mine, the position that the New York Times, say, took in the Penta-
gon Papers case was that that was a deliberate congressional decision,
and we cited a number of historical situations in which Congress was
presented with legislation which would have made it a crime to
publish certain types of information and in which it declined to
do so.
There was a conflict on the Supreme Court in the Pentagon Papers
opinion itself as to whether our interpretation was correct or not,
but it is, as the Department indicates, at least a live legal question.
As to whether, publication aside, disclosure of the kind of things
Mr. Agee, for example, has been saying is now a crime, I would have
thought that it was if the Government could have demonstrated that
it relates to the national defense, and that it was done for the purpose
of harming the United States and/or helping a foreign power. My
own view is that the Government has had tools, if it chose to use them,
vis-a-vis Mr. Agee, but I have not looked into it that much.
Mr. MAzzom. The gentleman's time has expired.
Mr. BOLAND. Thank you very much.
Mr. MAZZOLI. Let me take my time now, Mr. Abrams, and thank you
again. I appreciate the succinctness of your statement. With this great
body of paper floating around, it is nice to have people who have the
ability and facility to state their case briefly.
You cite the case of a gentleman named Pope, and I am not familiar
'svith that case, but the CIA man who was shot down over Indonesia,
and a book that was written about that titled "The Invisible
Government."
May I ask you to help me, why could not the same impact have been
made by the authors of that book in their aim to disclose a. hair-
brained operation, to disclose another one of the overreaching aspects
of the Federal intelligence service, without naming Mr. Pope by name?
What would have been the lesser impact of that kind of a book as
against the greater impact of a book with his name in it?
Mr. ABRAMS. I think as a general matter there is lesser impact if
you don't disclose the fundamental prerequisites of good journalism :
who, what, where, when, why. Beyond that, I think in a situation like
this Mr. Pope's name was no secret to anyone that was interested in
this kind of matter. He had, after all, been formally, publicly charged,
convicted in Indonesia of murder of civilians for flying for the CIA
and what the Indonesians said was dropping bombs on behalf of
the CIA and rebels in Indonesia.
I don't mean to answer your question with a question, something
people in my part of the country do now and then
Mr. MAzzoLI. Professors do that, I have found.
Mr. ABRAMS. But what harm is there in publishing the name? I
don't see any harm, first of all, in disclosing Mr. Pope's name, given
the fact that it was out there for anybody that was interested to find it.
And I see some good in the general journalistic sense and the general
public informational sense of telling the story the way it happened.
Now, in a lot of cases I think, if I may say so, you and I and, I suspect,
all of us in this room would come out the same way as a matter of
propriety.
For example, let's take Mr. Agee's book. After the book came out,
the New York Times did not republish the names of any of the agents,
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or any of the purported agents named by Mr. Agee. That was, I
believe, a responsible journalistic decision. Their view was, among
other things, that it wasn't newsworthy, but I think their view was,
as well, that it would have been irresponsible.
Suppose they had. If they had and if I had never represented them
and were just appearing for myself today, I think I would have to in
all candor answer your question by saying I really wish they hadn't.
I don't think it would really add that much if they did, but I would
also say to you, it can't be a crime if Agee has gone and done this
thing and then someone goes and buys the book and reprints some of
the names, or one or two of the names, or whatever.
So I would come out differently in response to different questions.
I think Mr. Pope's name ought to have been mentioned, and I don't
think the list Mr. Agee gave should have been.
Mr. Mnzzorr. Well, you have certainly made your case very well.
I would perhaps, with great respect, differ with you. I think that a
book can be written using a pseudonym, a book can be written identi-
fying in an unvarnished fashion, with total candor, the incredible
activities of the CIA and how they had led to this problem or that
problem, without using the name and that is really all these bills
attempt to do. What we have got before us is one, very limited cate-
gory of divulging information, that is, names of agents under cover.
We don't talk about naming the adventure as being sacrosanct, we,
don't say refrain from criticizing your Government. We are simply
saying one narrow category, names of agents, because we don't think
that is essential in telling the case of the misbehavior, if that is the
case, of the intelligence agency.
So I think I can understand your position that who, what, where.
when, why of journalism is very important to your client the New
York Times, but I think the same case could be made, and per-
suasively, that the retention of the name alone and the use of a pseudo-
nym could probably have had the same degree of impact.
But I thank you very much, Mr. Abrams. What you have said today,
plus your critique of the Justice Department bill will be very helpful
to the committee.
The gentleman from Illinois is recognized for 5 minutes.
Mr. MCCLOP,Y. Thank you, Mr. Chairman.
I want to emphasize, Mr. Abrams, that we are all conscious of the
protections provided by the first amendment, and all very anxious to
protect the rights of free speech and freedom of the press in connect ion
with this legislation. However, we realize that there are limitations pn
the first amendment. the proverbial limitation which prohibits a per-
son from shouting "fire" in a crowded theater. But, there are some
who would question that there are any limitations. I don't know
whether Seymour Hersh, who I believe writes for the New York
Times, world question the limitations or not, but lie has stated that
h, would feel that the press had the right to publish even another
proverbial example, the place and time of a troop ship departure from
port.
Now, I want to say this in your behalf and in behalf of your client
the New York Times, that-and I have gotten this from conversations
with Dean Griswold and from my personal examination of what I
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believe is the complete Pentagon Papers which were taken by Mr.
Ellsberg-you did not publish all of the Pentagon Papers. You ob-
served the same restraint that you did with regard to the publication
of names of agents in Philip Agee's book because there was sensitive,
classified information which would have impaired our national secu-
rity interests, so that those. portions were not-they were never pub-
lished. You must be aware of that yourself.
The example you give of Mr. Powers, Gary Powers, it seems to me,
is not a very valid one as an objection to this legislation because it
would not be possible to show any intent to impair or impede foreign
intelligence activities where his name was generally known. And like-
wise, it seems to me that you misunderstand the responsibility of the
Attorney General and the prosecution in that there is no obligation
to prosecute a losing case or a case where the statute is there but you
just can't make out a strong case. I mean, the prosecution still has the
option to bring the case or not bring the case.
Could you respond to that observation and maybe comment?
Mr. ABRAMS. Yes, two things. First, forgive me for saying it again.
but I do appear on my own behalf today and I don't speak for the
Times or any other organization.
Mr. MCCLORY. Yes. Well, you should speak proudly of them.
Mr. ABRAMS. Well, I speak proudly of them but I don't speak for
them today.
As regards the Pentagon Papers, if I may, it is perfectly true, and
I do have personal knowledge of it, that the Times made editorial
decisions not to publish certain material because of the possibility.
however slight, that it could have impaired in some fashion national
security. All that material was later published in the Beacon Press
books by Senator Gravel, you may recall, all the material was ulti-
matelv published, and so far as I know, there was no discernible
harmful result.
As respects potential prosecution. I suppose what. I would say as
very general thing is that the first amendment does not assume good
faith on the Hart of prospective prosecutors. It does not assume a
prosecutor will refrain from prosecuting simply because he has a
pretty decent. chance of losing the case.
Beyond that, I have some knowledge, and I would hope you wouldn't
ask me about it, here under oath, about how much lawyers cost, and
the. cost alone of counsel in a case in which a publisher, say, or an au-
thor. were indicted, is very high and, in and of itself, extremely
inhibiting.
-Now, if the result of legislation is to empower the Department of
Justice to commence prosecutions against newspapers that they think
have behaved, let us say, irresponsibly, the existence of the power
would he. it seems to me, an enormous threat. I would hope the power
wouldn't be exercised, and of course, I don't mean to suggest that
this administration or any recent administration, going back a few
years, anyway, would exercise it, or would have exercised it. But we
can't tell, and. we draft legislation. I hope, to avoid the risk as well as
the likelihood.
Mr. MAZ7OLT. The gentleman's time has expired.
The gentleman from Georgia, Mr. Fowler, is recognized for .
minutes.
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Mr. FOWLER. Mr. Abrams, I was rocketing along with your consti-
tutional position and your excellent criticisms about sweeping legisla-
tion and your urging of tightening in several instances until I got to
page 10. The last page, at the top it says : "Finally, if some form,"
if we are going to adopt it, you would strongly urge that it be made
clear that no journalist may be investigated or even called to testify
simply because he or she published an article identifying, in some
fashion, an agent.
Now, you know as well as I know that anybody and everybody can
call himself a journalist and publish anything they want to, and be
anywhere they want to in a free society. We have got the publishers
of this ConvertAction Information Bulletin in the room right now.
Are you saying that you want to extend this kind of constitutional
protection in that way to anybody who publishes anything in naming
an agent of this kind?
Mr. ABRAMS. Congressman Fowler, let me say that was the last
thing I wrote in preparing my testimony
Mr. FOWLER. It is not often I get to take on a man of your creden-
tials. I appreciate it.
Mr. ABRAMS. Thank you.
I think that line may be a bit overwritten, as I hope nothing else
in the statement is. What I meant to convey is that there are a lot of
rather routine journalistic articles which are indeed based on leaks,
often of classified information, and I would
Mr. FOWLER. Well, let's put it, I understand.
Mr. ABRAMS. I would hope that we just wouldn't wind up with a
situation where just because we have new legislation we wind up with
a new wave of subpenas, such as we had in 1972, some years ago.
Mr. FOWLER. Well, put it another way. Are you urging us to exempt
under first amendment rights the naming-I mean, the whole pur-
pose of this bill is simply one : Those of us or most of us on this com-
mittee-we won't get into a philosophical debate-believe in a free
Government, a free society, that the public has an absolute right to
know everything about their Government. The caveat to that gen-
erally agreed upon is except in interests of national security. If you
are too free, then you become less free, and we are simply trying in
a very narrow scope to prevent the authorized intelligence gathering
apparatus of our Government from being revealed, especially by those
who have been in a position of trust and employ of the United States
in a capacity where they had that knowledge.
Now, if a journalist, by whatever reason, the most respected jour-
nalist in the most respected publication says Wyche Fowler is a CIA
agent gathering clandestine material, are you saying that you believe
that, -No. 1, we ought not to have a law prohibiting that, and second, if
we did, it would be unconstitutional simply because it was published?
Mr. ABRAMS. I think in most situations that I can think of, includ-
ing the most of your hypothetical, at least, I believe it would be un-
constitutional for a journalist to be accused of the crime, where the only
crime was publishing the accusation that someone was an agent. I
think it is one thing to have legislation, as H. R. 3357, which makes
no reference to journalists, and as to which, for example, I would
not think you need a journalist's exemption clause in something as
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short and I think generally as clear as that; it is one thing to say that
there should or could be a law saying that there are certain obligations
on people who have authorized access to information and certain things
that they are not allowed to do because of their relationship which we
allow them to have with the Central Intelligence Agency or the like.
I think it is a different case when a journalist is informed of that
information, or if a journalist learns of that information and were
later to publish it.
I think, for one thing, in that situation, the secret is out. It is gone.
I don't think you can rebottle old secrets. And my own sense is that
if you are going to adopt any legislation, and if there is a need for
any legislation here, it is to deal with the agent, perhaps the former
agent
Mr. FOWLER. Well, then, how would you deal with the Agee-Covert
Action
Mr. MAZZOLI. The gentleman's time has expired. I will recognize
him, without objection, 2 more minutes to followup his thought. Every-
body has been abiding by these time limits, including the temporary
chair.
Two more minutes.
Mr. FOWLER. Thank you, Mr. Chairman.
What would be your suggestion of dealing then, based on your
analysis, with the Agee publication of all these names? He has got
himself a newspaper, calls himself a journalist.
Mr. ABLAMs. Mr. Agee's name has been mentioned a lot today and
I am not as knowledgeable as a lot of people are. His name has become
a term of art, almost. If Mr. Agee is disclosing information which
he obtained as a result of his intelligence connection with the United
States, then I think a statute could be drafted which is narrow, and
which in some way prohibited and made criminal his disclosure of
that type information.
I do not think it would be constitutional, to use the name referred
to earlier, to make it a crime if Seymour Hersh were to later learn,
from even Mr. Agee, the name of some agent, for Mr. Hersh to pub-
lish it.
Mr. FOWLER. Well, I understand the prior publication distinction,
especially in the Powers case and the cases you cite, but the question
is the publication, ab initio, by anybody who knows that this is clas-
sified information-that is what we are dealing with.
Mr. ABRAMS. May I say this? I have been given leave by the chair-
man to respond to the Department of Justice's proposed legislation,
and perhaps I could consider responding as well to your question in
my letter.
Mr. FOWLER. Thank you very much.
Mr. MAZZOLL The gentleman's additional time has expired.
I would like to recognize and welcome a very valuable member of
our full committee, though not a member of our subcommittee, but
we would welcome any questions that the gentleman from Florida,
Mr. Young might have.
Mr. YOUNG. Mr. Chairman, thank you very much.
First, Mr. Abrams, I would like to, as one member of this commit-
tee who has introduced what is probably the strongest bill on this
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subject, I want to thank you for your comments on the first page of
your statement where you recognize the problem and agree with the
fact that something has to be done. As one who is interested in
getting a bill enacted into law, providing protections that you and
I both would like to see provided, I would like to take this time to
go to your second page where you say "that the heart of what sec-
tion 501(a) seeks to accomplish could, I believe, be constitutionally
accomplished."
Would you be willing to offer your suggestions now or for the
record as to what words we could use to do what you and I want to do,
keeping it in a context that you would consider to be constitutional?
Mr. ABRAMS. Well, I would prefer, Congressman Young, if I may,
not to try to give you precise words right now. It is a very delicate
drafting process, and I have already indicated that I thought some-
thing along the lines of H.R. 3357 would pass constitutional muster.
I would be glad to undertake, if I may, to respond to your question as
well in my letter to the committee.
Mr. YOUNG. I would appreciate that. I wouldn't expect you to give
its the solution to that problem off the top of your head.
Mr. ABRAMS. I don't know if I have it.
Mr. YOUNG. The concern that I have, we can't write the law too
broadly, as you suggest, but we have this problem, and we have seen
it happen in other countries. What happens with a person like Agee
who will take the information that he has for the purpose of expos-
ing other agents and adversely affecting the intelligence ability of
the United States, and has that information published in, say, France.
Then the French publication is brought to the United States and used
as a source, then becomes the basis for many stories, news accounts,
columns or whatever.
The damage is still being done. What do you think we could do to
prevent something like that?
Mr. ABRAMS. Almost nothing. I think that you could adopt legisla-
tion which would be constitutional with respect to the responsibilities
of agents, and again, assuming Mr. Agee's role, and assuming that he
learned the information he is publishing out of disclosure to him
of what I will call classified information, I think that is one situation.
If Mr. Agee or anybody else discloses to a French newspaper such
information, I am very clear, for what it is worth to you, that an
American newspaper is free to republish it without any fear of crimi-
nal penalty, and that any law which would seek to punish an Ameri-
can newspaper in that situation would be unconstitutional.
I think I would have to say, Congressman Young, that we all have
to recognize that one of the purposes of the first amendment was to
make it harder to do things which we would sometimes like to do,
harder to prosecute people, harder to suppress speech which we find
very offensive, and even speech which is sometimes very dangerous.
And so if a very narrow statute is all you can do, as I would urge on
you, if I am right in saying that to you, then I think all you can do
for the rest is to urge the Agency to be more careful in its own internal
procedures, to take whatever steps the Government itself can to con-
tain its own secrets. Beyond that, I think we just have to leave it to
the good faith of responsible journalists in terms of what they decide
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to publish, and the individual decisions which they may choose to
make.
Mr. YOUNG. In the case of the French publication, I was really con-
sidering one more in the line of an underground publication that
would be used by an organization whose intent was the same as Agee's,
to destroy our intelligence capability.
Mr. MAZZOLI. Your time has expired, Bill.
I have 5 minutes and I will yield you a couple minutes if you want
to pursue that.
Mr. YOUNG. Just one more question, Mr. Chairman. Thank you
very much.
Mr. MAzzoLI. You are recognized for 2 minutes.
Mr. YOUNG. That was the broad question. Now to a more narrow
question.
Mr. McClory talked about the incident of yelling "fire" and what
protection under the first amendment is not given to a person yelling
"fire" in a crowded theater.
The Supreme Court has ruled that obscenity is not protected by
the first amendment because it is not speech. Each word in an obscene
work, publicly available at a library is acceptable standing alone, but
when combined in a textual format loses the protection of the first
amendment. In the courts opinion, it becomes totally without social
value; it falls outside of acceptable social norms.
Now, that is a very narrow interpretation of the first amendment,
the same as it was in the question of yelling "fire."
Do you believe that in a context like this that we could accomplish
what we want to accomplish without abridging the Constitution?
Mr. ABRAMS. Well, I believe that you could probably achieve most
of what you want to do, consistent with the first amendment. Some
things you couldn't do, even if you wanted to do them, and obscenity
law, for example, is a body of law which has grown up all by itself
in a way outside the mainstream of first amendment law. The only
way the Court has been able to deal with Obscenity is just, as your
question rightly indicates, is just to say by definition it is not speech;
hence we can say that we can limit it.
I wouldn't want to seek a new category like obscenity for purposes
of drafting or defending the constitutionality of the kind of statute
that I think that you would want, and I suppose I would really have
to urge on you again that there really may be things which might be
socially beneficial for you to accomplish if you could draft a broader
statute, but which the first amendment for other, still more important,
societal reasons, doesn't allow you to do.
Mr. YOUNG. Thank you, Mr. Abrams.
Thank you very much, Mr. Chairman.
Mr. MAZZOLL I am glad to recapture my time.
Let me, Mr. Abrams, finally ask you a very brief question.
The draft of the bill, which we just saw this morning from Mr.
Keuch of the Department of Justice, has a provision which the gentle-
man from Florida might be interested in in which says there is juris-
diction over an offense under this section committed outside the
United.States if the individual committing the offense is a citizen of
the United States or an alien lawfully admitted to thA United Mates
for permanent residence.
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I would not expect you, except if we have a curbstone judgment on
the legality or constitutionality of such a provision, but I would like
You to supplement that because it deals with what the gentleman from
Florida had brought up in his French case to some extent.
Mr. ABRAMS. I believe such a provision is constitutional. If I have
any other thoughts on the matter, I would like to deal with them in
my response to the committee if I may.
Mr. MAZZOLI. Right.
Thank you very much.
And I understand the same provision generally is in our bill, so you
might comment on that.
Mr. ABRAMS. Yes, it is.
Mr. MAZZOLI. And that was really the penultimate question.
The ultimate question is, on page 9 of your statement you suggest
that there is really no concern on your part for an agent who leaves
the service of the CIA and then makes revelations of names there-
after. You say that, "Additionally, I would urge upon the committee
that the Government be obliged to demonstrate that the agent who is
accused under this section 501(a) have learned the information in
question during the course of his service" and not afterward.
Do you have any faith in what we heard this morning from Ambas-
sador Carlucci that an agent in the service of the United States learns
certain techniques, is given certain entres to information, develops cer-
tain profiles which then later can be used to ferret out this information
from even unclassified sources, and with that, if you believe that there
is any merit whatsoever, does that translate into any section of the bill
that could be applicable to cease his divulgence of agent names?
Mr. ABRAMS. Well, my own sense is that what you were told this
morning by Ambassador Carlucci is correct in that an agent does in-
deed learn certain tricks of the trade, tools of the trade, gathers knowl-
edge, is better able than other people to read even public, unclassified
documents. I think that is undeniably correct.
.Nonetheless, my sense is that to say that a former agent is to be
deprived of what would otherwise be his first amendment right of
freedom of expression with respect to public material would not, I
think, properly be deemed constitutional.
There was a case which the prepared text of my statement cites, the
United States v. Heine case, in which a prospective German agent sat
and collected from technical documents and the like, all of which were
public, but for the purpose and with the intent of aiding Germany in
World War II, if the United States and Germany went to war-he
did this in 1940-an awful lot of public, unclassified information. He
did it with the worst possible intent. The court of appeals for the sec-
ond circuit said that You just can't prosecute someone in a situation
like that, and that Congress hadn't meant to prosecute him. I think
the court was right, and I think the answer would be the same to your
question.
Mr. MAZZOLI. The gentleman from Kentucky's time has expired, and
all time
~N Ir. YOrsc. I was going to yield you 2 more minutes.
Mr. MAZZOLI. Thank You very much. I know all this Yielding of
time doesn't seem to make a lot of sense, but it does get four or five
witnesses on within the allotted time.
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Mr. Abrams, thank you very much, and the committee stands ad-
journed until 1:30.
[Whereupon, at 12:33 p.m., the subcommittee recessed, to reconvene
at 1:30 p.m. the same day .j
AFTERNOON SESSION
Mr. MAZZOLI. The subcommittee will please come to order for the
afternoon session.
Our first witness this afternoon is Mr. Jack Blake, who is no
stranger to our committee. Mr. Blake is the former Deputy Director
of the CIA for Administration, and he is presently the President of
the Association of Former Intelligence Officers. The association,
called AFIO, is 1,000 strong and has actively commented on this and
other intelligence legislation pending before the Congress.
And again, we welcome you, Mr. Blake, and appreciate hearing from
you on these various matters.
STATEMENT OF JACK BLABS, PRESIDENT, ASSOCIATION OF FOR-
MER INTELLIGENCE OFFICERS; AND FORMER DEPUTY DIRECTOR
FOR ADMINISTRATION, CENTRAL INTELLIGENCE AGENCY
Mr. BLAKE. Thank you, Mr. Chairman.
If I may, sir, merely for the record, may I identify the strength of
AFIO as approximately 3,000 instead of 1,000.
Mr. MAZZOLI. I am sorry. Inflation has taken its toll. Inflation has
made it 3,000.
Mr. MCCLORY. I want to join in welcoming the gentleman.
Mr. BLAKE. Thank you, Congressman McClory.
Mr. Chairman and members, I wish to thank you for requesting me
to appear before this committee on behalf of the Association of Former
Intelligence Officers, AFIO, to give our views on H.R. 5615, the
Intelligence Identities Protection Act. I note that this bill is sponsored
by all of the members of the House Permanent Select Committee on
Intelligence.
We in AFIO fully support this bill and urge early committee action
looking toward enactment into law. The need for this legislation is
clear and compelling. It is appalling that the names of confidential
employees, agents and informants of our intelligence services can be
spread about or published with impunity. There must be a law to
deter those who would disclose those identities. Not only is the safety
and well-being of such employees and agents put in jeopardy, but
there is significant harm to ongoing intelligence activities.
In the aftermath of excessive charges and certain ill-founded al-
legations of the mid-1970's, this legislation is a concrete step to
enhance the effectiveness of intelligence. Against the backdrop of
world events, positive action will be seen as well timed. Furthermore,
the men and women engaged in intelligence activities will see this as
a positive effort to protect them in their daily work and the resulting
boost in morale will be immeasurable.
Many times legislative objectives are shared, but the proposals
when drafted cause difficulties. We recognize the considerable effort
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and care which have gone into the specific wording of H.R. 5615. We
wish to express our appreciation to the Subcommittee on Legislation
which sent to AFIO in March of last year preliminary drafts dealing
with the subject matter of H.K. 5615. Prior to forwarding our writ-
ten comments, AFIO representatives met with your staff for candid
discussions. We believe these efforts were worthwhile and produced
an excellent result.
The problem, Mr. Chairman, addressed by your committee today
is both very real and very current. I should like to call your commit-
tee's attention to the most recent edition of the CovertAction Informa-
tion Bulletin, December 1979-January 1980. This bulletin is published
by Covert Action Publications, a District of Columbia nonprofit
organization. Its board of directors is listed on page 2, and prominent
among those mentioned is Mr. Philip Agee. A regular feature of this
bulletin is a section entitled "Naming N ames and Sources and Meth-
ods." In this particular, most recent issues, three pages are devoted to
names. The introduction to the names says, in part, and I quote, "As
a service to our readers, and to progressive people around the world,
we will continue to expose high-ranking CIA officials whenever and
wherever we find them."
In this particular issue to which I make reference, 16 names are
mentioned. I will not address myself to the accuracy of the identifica-
tions because to do so would only give aid and comfort to the enemy.
The potential harm to the individual and his family stands the same,
whether identification is correct or not. The impediment to the work
of the Government, let alone the potential damage to the individual
and his family, screams forth if the identifications are correct.
I would also call your attention, Mr. Chairman, to the latest edition
of Counter Spy magazine, identified as volume 4, No. 1, but undated.
This piece of journalism ceased publication for a period but now has
resumed. In its current issue, under the title of "U.S. Intelligence," it
lists the names of 34 individuals resident in five different foreign
countries as U.S. intelligence operatives. Everything I said previously
about names in the CovertAction Information Bulletin applies
with equal force to the situation here. In the two issues of these maga-
zines alone you have 50 potential examples of U.S. Government em-
ployees who today are bereft of protection from their Government.
Swift passage of H.K. 5615 would remedy this egregious wrong.
In conclusion, Mr. Chairman, I would merely state that the member-
ship of the Association of Former Intelligence Officers is grateful to
this committee for its collective sponsorship of legislation so necessary
to protect the best interests of this country and to protect the welfare
of those who in circumstances that can be both trying and dangerous,
labor in the best interests of the Republic. We hope the enlightened
leadership shown here by the Congress will also be followed in matters
pertaining to the protection of sources and methods, modifications to
the Hughes-Ryan Amendment of the Foreign Assistance Act of 1961,
and more reasonable treatment of sensitive information under the
amendments to the Freedom of Information Act.
That concludes my statement, Mr. Chairman.
Mr. 11L&zzoLr. Thank you very much, Mr. Blake.
Let me ask, were you in the room today to hear most of what has
preceded your statement?
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Mr. BLASE. No, sir, I was not.
Mr. MnzzoLI. The objection made by many people in comments and
observations dealt more with section 501(b) of our bill. Section 501(b)
deals with the release of iniorunatnon by people on the basis of rniorma-
tion acquired either from nonclassified sources or from piecing together
other information not generally in the area of sensitive information.
I just wonder if you might address yourself-there seems to be little
philosophical problem, though there is even some concern about im-
posing a criminal sanction on those who receive information in their
authorized capacity and divulge it. But there is a great deal of
concern about focusing on others, perhaps members of the media,
who did not receive their information in their official capacity.
I wonder if you might address that, if you have given some thought
to the problem, and perhaps you could help our committee wrestle
with that.
Mr. BLAKE. Yes, sir.
In the first instance, I note with interest the identification given
to title V, which is "Protection of Certain National Security
Information."
It does seem to me the names of the individuals involved and the
definition of those names is very well stated in section 501(a) (i) and
(ii). It goes to the root of what the committee is trying to do to pro-
tect-certain national security information-and those names, indeed,
would come under that rubric in my judgment.
Second, I have read in certain newspaper comments on this pro-
posed legislation that there are those who feel the failure to divulge a
name involved may indeed prohibit or inhibit the publication of any
particular story. I fail to follow that logic. It does seem to me any
story that may be involved, any story that is susceptible to publication
can be developed by a trained and professional journalist without
the necessity of divulging a name which by definition is protected
as national security information in your proposed legislation.
Third-and again, this perhaps is more a matter of judgment than
law-it seems to me you would be somewhat faced here with the
difference between liberty and license, and not to overwork the old
cliche, but under what conditions does one have the right to veil "fire"
and how is a distinction shade whether you are impeding his first
amendment rights or whether you are serving the greater good and
protecting the greater number of people when fire indeed doesn't exist
and the temptation for a stampede may be there.
Those. sir, would be my observations.
Mr. MAZZOLI. Thank you, Mr. Blake.
I asked one of the previous witnesses the question that if a CIA
agent at Langley were having a cup of coffee in the cafeteria and over-
head a conversation in which the name of John Jones arose who was
an undercover agent in Lisbon, and later the CIA agent retired from
service, left service and divulged this information, it is not informa-
tio n which, under the Department of Justice version would be covered
because it doesn't come from a classified source. In the committee bill
which is before us, that kind of divulgence would be a violation of
501 (a).
I wonder, you are an expert in the field, you are a former member
of the Agency. Can a CIA person, in the run of being in the cafe-
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teria, in the bookstore, at the water fountain, come upon that kind of
sensitive information, or do they have to really receive it in an offi-
cial capacity?
Mr. BLAKE. Well, in the first instance, sir, if I may, I wear rather un-
easily that label of expert. I have come to know in life there are
very few experts in very few things.
In a more substantive fashion I think I would reply as follows : the
type of information, the model that you construct could happen either
way. It could happen in an official sense or it could happen in an unof-
ficial sense, and it is certainly true-you all live in the real world-
as one dines in the cafeteria or as one may ride the transportation
system in the Agency, one certainly can overhear conversations. In
that case, it is certainly possible that the name of an individual, else-
where protected by the act, would come in an unauthorized fashion to
the attention of a third party.
It seems to me, then, the test is what happens if that party divulges
that information, that name, and in your proposed legislation, I
think you rather establish a proof that has to be made which would be
to impair and impede the intelligence activities of the U.S. Govern-
ment. If I were the individual who overheard the name of a John
Jones and in a subsequent conversation I mentioned to a friend who
I knew was a mutual acquaintance of John Jones, oh, did you know
John Jones is on duty in Lisbon, I don't think I am susceptible to
prosecution under this act. My intent was not to impair and impede, it
was probably more in the nature of gossip.
Mr. MAZZOLi. Thank you.
I have one last question. Do you think the bill should be extended to
any other personnel than our bill now covers, which are intelligence
agency personnel, agents?
Somone earlier this morning talked in terms of FBI people as
being in some cases in situations comparable to these undercover and
could be extended these privileges, protections.
Mr. BLAKE. Speaking as a citizen, and understanding somewhat
the degree to which the FBI, the Bureau uses informants, it seems
to me there may be somewhat a lack of equity if they were not cov-
ered, but I must confess, I am not nearly as aware of the use of inform-
ants and the safeguards that the Bureau goes to to protect their
names as I am to the conventional intelligence personnel referred to in
your bill.
Mr. MAZZOLI. Thank you.
The Chair's time has expired.
The gentleman from Massachusetts is recognized for 5 minutes.
Mr. BOLAND. We appreciate your presence, Mr. Blake, and the
opinion of the Association of Former Intelligence Officers.
Do you have any problems with any sections of the bill at all?
Mr. BLAKE. No, I really don't, Chairman Boland. I noted with in-
terest section 501(a) (1) (C), "who was serving outside the United
States or had within the last 5 years served outside the United States."
I noticed with interest the period of time that was chosen for the legis-
lation, 5 years. I don't raise that as a problem that gives me great dif-
ficulty, but I was wondering about the derivation of the 5-year period.
Otherwise, I have no great difficulty with the bill, but I do have a
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63
great amount of admiration both for the motivation that brought it
about and the work that I hope will carry it through.
Mr. BOLAND. Were you here this morning you would have heard
some opinions expressed that certain sections are unconstitutional and
particularly 501(b) which, of course, applies to any person who dis-
closes information, whether or not they had authorized access to it
or not.
What is your judgment on that particular section 4
Mr. BLAKE. I stand in favor of the section, and when it comes to the
constitutionality or lack thereof of it, I have given this matter some
consideration. As I previously mentioned, I note that all members of
the committee support the legislation. While I have not determined
the precise educational background of all members of the committee,
I would dare say 50 percent at least have attended law schools if not
practicing attorneys, and it would seem to me that they are entitled to
their judgment as well as to representatives of the Department of Jus-
tice, and in the last analysis, the constitutionality of the bill can al-
ways be tested in the Federal courts as bills are every day.
Mr. BOLAND. Now, you mentioned the November 19'9 issue of
CovertAction Information Bulletin, and you indicated there were
a number of CIA names that were disclosed in that publication.
Mr. BLAKE. If I may, Mr. Chairman, I did not take a position on
the accuracy of the identification. I did observe that the publishers of
the CovertAction Information Bulletin identified them as intelli-
gence operatives abroad, but I would like the record to show that I
did not identify any individual there at all.
Mr. BOLAND. May I ask you whether or not are you familiar with any
of the names that appeared in either that December publication or
volume 6 of October 1979? I would presume that AFIO has-you are
probably a subscriber to the CovertAction Information Bulletin, are
you?
Mr. BL.AKE. We from time to time buy a copy, yes, sir.
I do recognize some of the names.
Mr. BOLAND. You do recognize some of them.
Of your own knowledge, do you know of any harassment that may
have been undertaken against them as a result of the publication g
Mr. BLAKE. Not as of this date.
Mr. BOLAND. That's all. Thank you.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Illinois, Mr. McClory, is recognized for 5,
minutes.
Mr. MCCLORY. Thank you, Mr. Chairman.
First of all, I want to state quite forthrightly the important con-
tribution which I feel the Association of Former Intelligence Officers
is making to this legislation and other legislation to strengthen the
intelligence agencies and their capabilities, and I am sure that you and
and your members are grateful for what I interpret as President
Carter's new direction in foreign policy. including enhanced military
capability, military strength, and likewise, his statements in support
of revitalizing, I guess he calls it, the intelligence capabilities.
Mr. BLAKE. Yes, sir.
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Mr. McCLORY. And this piece of legislation is just part, as you in-
dicated, of a series of measures which can restore the agencies to their
former strength.
You don't have any problem, do you, with regard to legislation which
would not only protect present agents, and that is the legislation which
is directed against those who would reveal the identity of present
agents as well as former agents, but how about the subject of other
persons who may not be affiliated with the Government at all, they may
just be sources of information, private individuals? It has been re-
vealed, of course, in the exposes of the last decade the number of per-
sons affiliated with large corporations who have served in a relation-
ship with the CIA to provide information. Do you feel that those per-
sons should be equally protected?
Mr. BLAKE. I most certainly do, sir, because in the last analysis, as
I understand your question, it is that category of individual that you
have just described that ultimately is in possession of the information
that the Government desires to acquire, and it is an employee of the
U.S. Government who is the instrumentality through which that in-
formation is acquired, and I do believe that had to be the thought, the
motivation behind the language found in 501 (a) (ii) and 501(b) (ii)
where the test is not employment or a member of the Armed Forces,
but the test is the identity having been "an agent of or informant or
source of operational assistance to" an intelligence agency, any indi-
vidual. Citizenship is not mentioned there. It covers anyone who has
that relationship.
Mr. MCCLORY. Further, "intelligence agency," as defined in the bill
that we have before us, the principal bill of which all the members are
cosponsors, limits the application to the Central Intelligence Agency
or any intelligence component of the Department of Defense.
Would you not feel that it would be important to include the FBI
and its covert activities, the agents that they are operating secretly for
the FBI.
Mr. BLAKE. Yes, sir, and I believe that I responded in the same
fashion to a question formulated in different words from Chairman
Boland. I certainly would agree with that.
Mr. McCLORY. And do you see any reason why we cannot, as the
Attorney General indicated, balance the rights of individuals, the
individual rights, the constitutional rights of individual Americans
with this need to protect our national security and our national inter-
ests not only through providing a military capability, but likewise
through an intelligence capability which would operate, and does
operate in part secretly.
Mr. BLAKE. I see no insuperable difficulty there whatsoever.
Mr. McCLORY. I thank you for your constructive statement and for
your very knowledgeable information provided to us, and for your
support of this legislation.
I yield back the rest of my time.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Florida, Mr. Young, is recognized for 5 min-
utes.
Mr. YOUNG. Mr. Chairman, thank you very much.
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I would like to thank Mr. Blake for being here today and for giving
us his ringing endorsement, as one who has been on the firing line, so to
speak, and knows the problems. His endorsement of the type of legis-
lation that we are considering here today is greatly appreciated.
Let me briefly say that I think that despite all of the attacks we have
seen on our intelligence community in recent years, I really believe
that as a member of this committee I have had a real eye opener, that
it is time to level with the American people, to let them know just
how much damage has been done to our intelligence capability, and
I think also to let them know how essential and vital a strong intelli-
gence organization is to the survival of this Nation.
I would like to yield to the temptation to say that I told you so to a
lot of people, but had there been more of us in recent years like your-
self and some of us on this committee, had there been more of us in
our Government in the last 4 or 5 years, we may have avoided some
of the serious problems that are confronting the security of our Nation
today. Let's just hope that it is not too late, that we do have time
to recover and rebuild our ability to know what is going on in the
world. And, as one of the cosponsors of this bill, and as the sponsor
of another bill that extends the protection, as Mr. McClory dons, to
the FBI, we appreciate your support.
Mr. BLAKE. Congressman Young, if I merely may say, sir, as one
who served the intelligence function of the U.S. Government for 35
years and retired within the last year, I am greatly gratified, as will be
my colleagues, by your statement.
Thank you, sir.
Mr. YOUNG. Thank you, Mr. Chairman.
Mr. MAZZOLI. Thank you very much.
The gentleman's time has expired.
Does anyone have followup questions?
Mr. Chairman, Mr. McClory?
Mr. Blake, thank you very much. We appreciate your attendance
today and your helpful observations, and you have helped us draft
a good bill.
Mr. BLAKE. Thank you, Chairman Mazzoli.
Mr. MAZZOLI. I would now like to call a panel of experts to join us,
three representing the views of the American Civil Liberties Union,
Mr. Morton Halperin, who happens also to be the director of the Cen-
ter for National Security Studies; Mr. John Shattuck, director of the
Washington Office of the ACLU; and Mr. Jerry Berman, legislative
counsel of the Washington office of the ACLU.
These gentlemen have testified on virtually every bill that we
have had before us, and have always given us helpful information,
candid information, and information which springs from their feel-
ings about a lot of very important aspects of the Constitution.
Mr. BOLASD. And Morton doesn't change a bit, does he?
Mr. MAZZOLT. He has aged less.
Gentlemen, welcome.
You may proceed to deliver your general statements in any fashion
you wish.
(The prepared statement of Messrs. Halperin, Shattuck, and Berman
follows:]
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STATEMENT OF MORTON HALPERIN, DIRECTOR OF THE CENTER
FOR NATIONAL SECURITY STUDIES; JOHN SHATTUCK, DIRECTOR,
WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION;
JERRY J. BERMAN, LEGISLATIVE COUNSEL, WASHINGTON OF-
FICE, AMERICAN CIVIL LIBERTIES UNION
Mr. HALPERLN. Dlr. Chairman, I want to say again on behalf of my
colleagues that we do appreciate the opportunity to be heard and
even occasionally listened to by this committee.
Dlr. BOLAND. It is a delight to listen to you. It is nice to have that
kind of expertise before us.
Dlr. HALPERIN. Thank you, Dlr. Chairman.
Dlr. DIAZZOLI. I think the gentleman is making the distinction be-
tween hearing and listening. I think they are two functions.
Dlr. HALPERIN. I might say we rotate who gets to speak, and my
turn has come up for this bill.
The bill, as you know, DTr. Chairman, is designed to protect the
identity of intelligence agents by making both people with authorized
access to classified information and those without such authorized ac-
cess subject to criminal penalties for the disclosure of the identities
of agents, even if that information that they used to disclose the iden-
tities comes entirely from public sources. And I think it is important
to remind ourselves about how broad the term "agent" is as used in
the bill. I think a lot of people have the impression that we are only
talking here about people who go to work for the Government of the
United States, and who are paid secret agents for the American
Government.
In fact, as you know, the bill goes much further than that and pro-
tects people who are informants or sources of information or assistance
to the Agency so that we are talking about revealing the identity of a
vast range of individuals who might have in some cases quite casual
relations or relations with the Agency in a single situation, or relations
even with the Agency that they may not even consider as sensitive or
even secret relationships with the Agency.
And we think, therefore, that the bill as a whole has to be understood
in terms of that very broad definition.
Now, as I think was clear this morning, everybody who has looked
at this issue has come away feeling that there are very different con-
cerns as relates to private citizens and the press on the one hand, and
Government officials and former Government officials on the other.
And our view, very similar to that of Floyd Abrams as presented this
morning, is that any effort to cover individuals who have not had au-
thorized access to classified information is inherently flawed, that the
first amendment stands for the proposition that once information
leaves the confines of the Government and comes into the possession
of those who seek to publish it, the Constitution does not permit prose-
cution of those individuals.
We think beyond that that the provision is unwise because it would
cover a great many people and in a great many situations, which, as
the Justice Department suggested this morning, would in fact have a
very chilling effect on public debate and public speech.
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You have had quoted to you already, and we would quote again, the
decision of Judge Learned Hand in United States v. Heine, a case
often cited with approval by the Justice Department, by the Supreme
Court and by a number of commentators. I think it is striking, if you
look in our prepared text on page 5 at the description of what Heine
did is very similar to the description as we understand it of what the
Covert Action Information Bulletin and other people have done who
have speculated about who might be CIA agents. And what Judge
Hand said in that case was that it could not be unlawful to republish
such information, to do what Heine did, which was to sift through
materials. You were told this morning by the CIA that it isn't simply
a question of getting out a book in the library and it tells you in it who
the CIA agent is. I think that is right. It is a matter of sifting through
information.
I have had occasion to do that for my own research from time to
time, although I have never published any of that, and I can tell you
that it is not as complicated or as esoteric as I think was suggested to
you this morning. It does not require extensive training in spycraft.
It requires understanding a few basic rules about, for example, how
the Biographic Register was made up, and knowledge about that is,
of course, within the Government, not limited to the people who have
had access to the names of agents. There are a great many people in
the Government who understand how the Biographic Register was
made up and who never, in fact, were involved with covert agents
at all.
There are a number of examples that have been given to you in
other people's testimony. We have a number of others where publish-
ing the names of agents would be important. One that has not been
talked about that is a relatively recent one, of course, was the case of
King Hussein of Jordan. The Washington Post published early in
the Carter administration that he was, in fact, a source of CIA assist-
ance and had been given some money by the CIA. I should say I have
no idea whether that is true or not. What we do know happened is
that the Washington Post, doing what many journalists often do,
went to the White House and said, should we publish this? The White
House said no, don't publish it, it is classified, and publishing it will
injure the national security.
Under the bill as it is drafted by the committee, I would say the
Washington Post was then on notice that in publishing this, they
would impair and impede the intelligence activities of the United
States, would make it harder for the U.S. Government to get rulers
of Arab countries or presumably any foreign leaders to cooperate if
that information might be published.
The Washington Post was told that by the White House, and I
would say in those circumstances they would have great difficulty
thinking they were not subject to the law as drafted.
The problem with the Justice Department version, I might say,
which says that you had to know that the information was classified,
was that if a responsible journalist came to the Government and said
should we print this, and were then told by the Government that it
was classified, they would then be in a position of knowing that it
was classified, and again publishing it in peril of being indicted.
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So I think that either of those two provisions would encourage
journalists not to check with the Government before they publish
information for fear that their conversation with the Government
could be said to give them the requisite intent. I think that is not what
you want. I think you want to encourage the situation that you have
now, when most newspapers and most journalists will talk to the
Government and will not publish things if they are persuaded it will
in fact cause major injury.
Our view is that there are a number of circumstances in which
revealing the identity of the person would be essential to public
debate, or would be necessary to understand the circumstances of a
particular activity. Our view is that the intent provision, intent to
impair or impede, does not provide much protection, because there
are circumstances in which people will criticize activities of the intel-
ligence agencies, and which that very criticism and public debate
would be taken as evidence of an intent to impair or impede the intelli-
gence activities of the United States. If the reporter for the Washing-
ton Post had written an article saying it is counterproductive to the
interests of the United States to have the CIA have covert relations
with foreign leaders, and then 2 months later published the fact that
King Hussein was on the payroll of the CIA, he might well be said to
be interested in impairing or impeding that particular intelligence
activity, and therefore be under the provision of the bill. And I think
it would have, as the Justice Department suggested, a very chilling
effect on public debate.
We simply do not think, in short, that there is any way to draft a
provision which applies to individuals that have public access to infor-
mation which would not cast such a wide chill over other debate, and
other discussions as to be unconstitutional and unwise.
Now, when we turn to the other section of the bill, that relating to
authorized access, we do not have the same view. Our position is that
it was limited to people who had authorized access to information. and
would not cast a chilling effect over public debate in general, provided
it was limited to people who had authorized access to information, and
provided it was limited to the information that they acquired in the
course of their official duties.
We have several specific objections to the bill as drafted, to section
501(a). The first relates to the scope of the information which is
covered, and I must say, Mr. Chairman, that we had difficulty deter-
mining what the intent of the drafting was in that section. In our
view, the scope has to be limited to information which is acquired
during the course of the official duties of the individual. And in the
colloquy that you had this morning about whether or not it could be
something that they heard over the water fountain or in a particular
piece of paper or not, I think what we are saying is it has to be in-
formation that you acquired as a result of, in the course of your official
duties, so that it could be somewhat broader than information that you
were given specific authorized access to, but it could not cover informa-
tion that you later learned.
And indeed, this very issue, and one that is raised even more clearly
by the Justice Department's alternative formulation, was discussed
in the case which the Justice Department always cites with approval
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and enthusiasm, a case called United States v. Marchetti. There the
district court had issued an injunction against Marchetti which pro-
hibited him not only from revealing classified information, but from
revealing any information about the CIA, and its reasoning was simi-
lar to that of the Justice Department in discussing this bill, namely,
that having been in the Government. Mr. Marchetti acquired a certain
expertise and gave a certain credibility to information which he re-
peated, and therefore the district court enjoined Marchetti from re-
printing something which had already appeared in public, from using
public sources for his information.
And the court of appeals struck that down in an opinion which
otherwise, in all other respects, sustained the position of the Govern-
ment. What it said was that the first amendment limits the extent to
which the United States, contractually or otherwise, may impose se-
crecy agreements upon its employees, and enforce them with a system
of prior restraint. It precludes such restraints with respect. to informa-
tion which is unclassified or officially disclosed.
And we think the thrust of that. as well as a number of other de-
cisions suggests that even as to former officials, you cannot publish
them for reordering and analyzing unclassified information.
Our second objection has to do with the failure to require that the
activities are lawful.
The third objection has to do with the fact that we believe these
provisions should be limited to situations in which the revealing of
the name of the individual actually places an individual in jeopardy
or could reasonably be expected to place an individual in jeopardy.
And I would point out, Mr. Chairman, that these three proposed
changes that we suggest are in fact included in the provision on this
subject contained in H.R. 11245, which was introduced in the previous
Congress by the chairman of the full committee.
In addition, we believe that there should be an exemption to permit
an individual to reveal the fact that he or she was a CIA agent.. People
should be able to reveal their own involvement with the CIA without
fear that they are violating the law.
We would go beyond that to suggest that the grand jury provisions
should not be available to compel a journalist to reveal his sources.
The problem there, Mr. Chairman, is clear. If the name of a CIA
agent is published in a newspaper, and if Congress has made it a
crime for a government official with authorized access to reveal the
name, then a journalist can be called before a grand jury and compelled
to reveal their sources of information, because they are, in fact, the
only witness to this crime, and we think that should not be clone, that
there should not be this chilling effect on the press, and that there-
fore people should not be subject to grand jury calls to investigate
that issue.
Now, I should point out that that would not apply to a former
Government official. That is, a former Government official could not
publish a newsletter, print the name of an agent, and then be free
from investigation, because as a former official, they would be subject
to the criminal penalties provisions of the bill.
There was considerable discussion this morning and previously be-
fore this committee about whether you need such a bill or whether
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the general espionage laws cover this kind of release of information.
In our view they do not, and we think that it is important that if
Congress consider this bill, that it consider it in the context of the
espionage laws, and with an understanding of what its view is as to
the scope of those provisions in the law.
More generally, let me just say in conclusion that it continues to
be our view that we need a comprehensive charter for the intelligence
agencies. We regret the fact that it has taken the administration more
than 1 year to come forward with its own view on a comprehensive
CIA charter. We welcomed the introduction of the bill in the previous
Congress. We thought that was the place to start. We thought a pro-
vision on this subject within that context was not objectionable. That
continues to be our view. We do not think that there is an urgency
about this issue which suggests that it should be treated outside the
context of a comprehensive charter. We think the Congress ought to
legislate its views of what the CIA ought to do, it ought to legislate
what limits there are on the intelligence agencies, and what kind of
informants and agents can be used by the intelligence agencies, before
Congress establishes criminal penalties for review.
The discussion of a comprehensive charter has gone on for a very
long time. I think if there is a desire to pass such a bill, as the President
reiterated in his state of the Union message, and we are all trying
to read the tea leaves about what the President really wants, what he
said in the state of the Union message was that he wanted to deal with
this issue in the context of a comprehensive charter. We think that is
the way to deal with it. We think within the context of a compre-
hensive charter a provision on this issue would flow naturally. We
think as a separate matter it would raise substantial problems, and that
therefore the better wisdom is for Congress to move forward urgently
with a comprehensive charter.
I would like to stop there, Mr. Chairman, but perhaps see whether
either of my colleagues want to make an opening comment before we
go to questions.
Mr. MAZZOLI. Mr. Berman?
Mr. BERMAN. Just to state that one of our concerns goes to the way
this bill has simply expanded from a narrow concern and a legiti-
mate concern over the publication of classified information which puts
our CIA agents abroad in jeopardy, the focus of the intelligence char-
ter provision 2 years ago, to one which is now protecting all agents, em-
ployees, sources, informants, and in a sense, all CIA operations, at
least from public discussion.
There is a confusion in the legislation, or at least it is not clear
whether this is even a names of agents bill, in the sense, Congress-
man Mazzoli was describing. It is not limited to exposing the name
of an agent. It also covers the revelation of the identity of an agent
which may mean information where you don't reveal the name of an
agent. The story, the national security matter that you are talking
about, the foreign policy debate may reveal that identity.
It becomes even more vague if you raise the question "reveal to
whom?" Reveal generally to the public that reads the New York
Times? Reveal to someone at a cocktail party? Or reveal to the Soviet
Union? Because executive leaks of information in foreign policy de-
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bate may in fact reveal foreign sources abroad although we never
know that it is revealed. It is revealed in the Soviet Union.
I think that it is a sticky wicket. As you think more and more about
this legislation, the examples become less obvious than the U-2 spy
flight brought up this morning, Gary Powers, or the King Hussein
story. What if you said it wasn't King Hussein but a high Middle
East potentate? What if you said it was someone in Jordan, but at the
top of the government? Would these be a revelation?
So with the potential chilling effect spreading from there, I think
that we are talking about closing down substantial discussion about
the foreign policy and intelligence matters of this country.
I also want to make one final comment in regard to the charter. If
you look at the record, there have really been rare instances of revela-
tion of intelligence agents in the press, and that seems astonishing
over the course of investigations, lawsuits, press security of the intel-
ligence agencies, much of it brought on by themselves. The emphasis
on a charter is that it was to establish the ground rules on what the
agency can and cannot do. It would establish a climate of trust and
some ground rules that the public could understand. It might do more
to protect the names of agents from guided and misguided people who
think that revelation of their names is the only way to have account-
ability in this country for our intelligence activities. So we come back
and say, let's do this bill within the context of a comprehensive charter.
Let's narrow the focus back to the agent in jeopardy. And let's talk
about Government officials and not about the press and public in
general.
Thank you, Mr. Chairman.
Mr. MAZzoLi. Thank you very much.
Mr. Shattuck?
Mr. SHATTUCK. No, thank you, Mr. Chairman. I would be glad to
answer any questions.
Mr. MAZZOLI. Let me say, what you say certainly has a lot of merit,
and we wrestled this morning, I think it is evident from the questions
the committee asked insofar as 501(b), dealing with the unauthorized
disclosure of information not acquired in any official capacity, or
which itself is not classified at the time, or which has been previously
divulged, causes the committee some concern. There is less concern
expressed about the 501 (a) area where an individual comes in con-
tact with it in his or her authorized capacity and divulges it.
But I think what has really forced the committee to take some
action is really the rather outrageous conduct and cavalier behavior
of some of the people who-ago in, I can't challenge their motivations,
though it does seem from my perspective that they look like they have
mischief on their mind-really look like they are out to destroy one
aspect of foreign policy of this country. They do jeopardize the ability
to perform, if not the safety, of people in the intelligence agency, and
it forces a group of people to take action which is in some cases faulty
and may run counter to some persons' understanding of the Consti-
tution, but it is a response to a very potent problem.
And I wonder, you obviously don't share our concern in one respect.
I mean, can you look at Covert Action Information Bulletin and read
names of agents and not be a little bit perturbed or concerned or
apprehensive about that kind of freedom and license?
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Mr. ITALPERIN. IV, all. Mr. Chairman, I recognize that that is a very,
hard subject, and I appreciate the concern of the committee about
it.
Let me say two things about it from my personal perspective, and
then my colleagues may want to say other things.
First, I think it is important to understand that we are talking
about people whose identity as employees of the CIA is not as well
guarded as the more secret employees of the CIA. That is, the CIA-
Americans who work for the CIA are in two categories, those who,
are undercover employees of the United States, who pretend to be
working for business firms, insurance companies, and other kinds of
organizations, whose names do not appear in the Biographical Reg-
ister or the other material that you see, whose names do not appear,
in the Embassy directory. Those people's names have not been pub-
lished, as far as I am aware, and nobody knows how to find those
people and get at their names.
The names that are published in these bulletins are people who are
under what the Agency would always refer to as light cover. That is,
they are people who admit that they work for the Government of the
United States, who appear on Embassy rolls as Government employees
of the United States, and whose cover has been known for years by
the CIA to be extraordinarily vulnerable to penetration. And I think
the CIA has always operated on the assumption that hostile intelli-
gence services could figure out, by the methods that the Covert Action
Information Bulletin uses and that others use, to figure out who they
are.
People where the CIA has felt it was important to keep their iden-
tity secret have been kept secret in a different way that has not been
touched by this.
And as I understand it, while there are a number of reasons for the
secrecy, one important one is that foreign governments don't like to
have people on our Embassy payrolls who are publicly identified as
CIA agents, and therefore there is this light cover which often was
referred to in the Government as diplomatic cover. And those are peo-
ple, when I was in the Government, for example, I would often go to
meetings with people and see them and be told their names, and they
would be people who, 2 or 3 years later, would go abroad and be in
this category of agents.
So while, without getting into the merits of whether they ought to
do it or not, I think we have to understand that it is not the most
secret agents of the CIA.
The second point I would make is the point that Justice Stewart
made in his opinion in the Pentagon Papers case ; namely, that it is
the obligation of the executive to keep secret that which has to be
secret, and under the first amendment, he said-and I think he went
further than I would, but he said that the executive was free to keep
secret whatever it wanted to about national security, that there was
no constitutional obligation of the Government to make this kind of
information public, but that once it was made public, the press and
citizens had an obligation to do with it what it wanted, to analyze it,
to write about it, to reprint it or to publish it. If the Government was
concerned, the Government should look to the process in that case
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73
of how the times got the Pentagon papers; that is, who gave them.
the access to the copy, and in this case, I think the Government ought
to look to, as it. is starting to look to, what it ought to make public.
It has stopped, of course, making public the Biographical Register.
It has stopped making public the telephone books of embassies. And
I think it has got a constitutional right to keep those things secret to
protect its agents.
Mr. MAZZOLI. Unfortunately, my own time has expired. If I have
time, I will try to follow up on that.
The gentleman from Massachusetts, Mr. Boland, is recognized for
5 minutes.
Mr. BOLAND. Thank you, Mr. Halperin. It is always a pleasure to
have you before this committee. You have been here many times, and
I think you have given this committee some valuable advice and
suggestions.
Mr. H ALPERIN. Thank you, Mr. Chairman.
Mr. BOLAND. As I understand your opposition to, or some of your
oppositions to it, it. is based on first of all the scope of the proposal it.
self, where you indicate in your statement that the ACLU believes
that any restrictions on dissemination should be limited to informa-
tion which a person acquired in the course of his official duties, and
you would stop it right there.
Is that correct?
Mr. HALPERIN. That is correct.
Mr. BOLAND. And then you go on to say in the statement than an in-
dividual who has had authorized access to certain names should be
free, after he or she leaves the Government, to sift through unclassi-
fied material and to publish the results of that analysis.
Mr. H aLPERIN. Right.
Mr. BOLAND. Do you really mean that?
Mr. HALPERIN. Well, I think you can't do it as a subterfuge, that is
to say, if you have been given authorized access to the name of an
agent, we don't mean to suggest that you could then publish the name
of that agent and show how you could derive it from public sources.
What we are saying is if there was the name of an agent that you did
not have access to and you simply looked at public sources and de-
duced who that agent was, that you would be free to publish that
information.
Mr. BOLAND. And then, another reason on which you base your op-
position to this proposal is that you believe that criminal penalties
should apply only when the revelation takes place in a manner which
results in injury to the individual or jeopardizes the safety of such
an agent or employee, or could reasonably be expected to do so.
What about the loss to the Government of the services of these in-
dividuals? Your only concern is injury to their person or that which
jeopardizes their safety. What about the loss of the service of these
people, for example?
Mr. HALPERIN. Well, there again, I would say the Government has
a right to try to protect that by keeping the information secret. I
don't think that kind of injury rises to the level that criminal penal-
ties should be attached to the release of the information.
Mr. SHATrucx. Could I just add to that that if it did, it would, in
our understanding, I think, be covered by the current espionage laws.
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In other words, if it rose to the level of damage to the national defense
within the meaning of the espionage laws as they now exist, and there
were an intent on the part of the person to engage in such damage, then
it could very well be that in that area at least the espionage law would
cover it.
Mr. BOLAND. Is that really so, though, in that area?
Mr. BERMAN. Well, I think it could be covered if you accept the
broad reading of the Justice Department. I think there is a very serious
question whether any of the espionage laws, except in time of war and
certain narrow circumstances, goes to publication.
But otherwise, it is to covert transfer to a foreign government.
Espionage, read that way, is a-it can be read that way. It is a
troubling proposition which is why I think that we are generally in
favor of attempting to revise the espionage laws to get down, not only
to cover espionage, but the protection of secrets from unauthorized
disclosure, but with respect to Government employees who have ac-
cess to that information, not with respect to the press and private
persons who acquire access in one way or another and then seek to
publish. We think there the balance shifts, the responsibilities are
different, the public's right to know and the first amendment take
precedence. And while we are debating what should be secret in this
country, and legitimately so, we do have to be able to debate our in-
telligence activities and we do have to debate foreign policy matters.
We think it would really be in the wrong direction to use or respond
to the current crisis and react in a way which removes accountability
and removes the public sense that matters are discussable and debat-
able in this country.
Mr. BOLAND. You would prefer to leave this whole thing hang until
we get to the charter legislation because these issues are more nar-
rowly drawn and defined.
Mr. BERMAN. Well, the agencies have been complaining about this
problem for a very long time, and they have not moved very fast with
this charter, and I don't think anything in Iran or Afghanistan,
serious as those matters are, have changed the situation with respect
to the names of the agents, the Freedom of Information Act, or
Hughes-Ryan. Those are continuing problems.
If they wanted to come up in March of 1978, after you introduced
the comprehensive charter, and put a counterproposal on the table,
we would have a charter now, or perhaps we would be close to having
a charter, but suddenly, the crisis and names of agents have been linked
together. Now the agencies believe it is an appropriate time to come
forward, get the authorizations and standards that they want, and per-
haps leave the charter in the train station. I am afraid that if the kind
of package that Senator Moynihan proposed last week, which is what
the agencies say they need, and maybe on the merits they need, is
passed, I don't think that they are going to come back next year and
support the charter restrictions to protect the rights of Americans.
That will have gone by the wayside.
Mr. MAZZOLI. I am sorry, the gentleman's time has expired. We will
have a second round.
The gentleman from Illinois is recognized for 5 minutes.
Mr. MCCLORY. What surprises me about your testimony today is that
I think we have here, you know, three of the top representatives of
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what I would call the liberal community, representatives who purport
to champion individual rights. Yet, at the same time you are
suggesting a form of discrimination between individual Americans
in which you would provide protection for CIA agents but not another
American who might be performing just as much or just as important
a contribution to our country under cover. Likewise, you would
be critical of Senator Moynihan, who I think represents the en-
lightened liberalism of today, who recognizes that our position
in world society is such that we are diminishing our influence
and our position of leadership around the world at least partly
because of the secret activities that are carried on by our adversaries.
including right here in Washington, D.C., as he has indicated, and I
don't think you are suggesting any steps that we should take against
the Soviets absorbing and utilizing our secrets. At the same
time it seems to me that the position you are taking impairs our ability
to protect our covert operations.
Mr. HALPERIN. Let me say a couple of things about that. First of
all, we have said to Senator Moynihan, and I will say again to you,
that we would be delighted to support a bill which restricted the Soviet
ability to monitor the phone and other communications of Americans
within the United States. It is a problem he has pointed to. He has not
introduced any legislation that I am aware of. We think Americans
are entitled to have their conversations protected from the KGB as
well, and would be delighted to support that.
Second, we do not propose to narrow the definition of agent in the
bill. We simply point out that since the definition is so broad, that the
criminal penalty should be limited to people who had authorized access
to that information.
Mr. MCCLORY. In other words, it covers other individuals. It covers
just people, American people.
Mr. HALPERIN. And we don't propose changing that. We have not
recommended an amendment to that position.
Mr. MCCLORY. Well. as I understand your testimony, you said you
wanted it limited to CIA agents.
Mr. HALPERIN. No; we want it limited to CIA agents, sources, or
individuals whose lives are in jeopardy as a consequence of the release
of classified information.
Mr. MCCLORY. But how about the individual who is identified?
Mr. HALPERIN. If his life is in jeopardy, we would propose to cover
him in the bill.
Mr. MCCLORY. And likewise, you suggest that there should be proof,
or there should be some showing as to what the jeopardy is. In other
words, you would want us to identify the foreign agent or the person
who would pose the threat, and that individual it might not be possi-
ble to identify.
The further point of discrimination is you want to discriminate
between the journalists and the agents and the individual Americans,
and I think you misread at least what the law of the land is, because
I don't think that journalists, if they have unique information with
regard to the commission of a crime should be protected from their
obligations, the same as every other American. And I don't know that
there are too many journalists who disagree with that.
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Mr. HALPERIN. Well, I think, Mr. Chairman, I think we agree that
the Supreme Court has said that you could compel that testimony.
That is precisely why we think Congress should legislate a protec-
tion so that you need not do so.
Mr. MCCLORY. In other words, you are disagreeing with the inter-
pretation of the Constitution as interpreted by the Supreme Court.
Mr. HALPERIN. No; we are simply suggesting that Congress can give
protections to individuals beyond those that the Supreme Court has
said are required by the Constitution.
Mr. MCCLORY. Also, I think you misread the constitutional re-
straints upon our right to legislate by referring to the Marchetti case,
which referred to prior restraint, which is one thing, whereas what
we are legislating on here is the actual commission of a crime and the
punishment for the offense that we have denominated as a crime.
Mr. BERMAN. There the issue is what can be criminalized under the
Constitution. The distinction that we are making is not simply for
the press but the public, and we are not trying to make a distinction
between the New York Times and anyone else in the public, and we are
standing with respect to protections that the Constitution has given
as articulated by the court, which is that once information is in the
public domain, it is in the public domain, and that it is unwise, and I
think would have a serious chilling effect, as Mr. Abrams pointed out
this morning, to try and go beyond that and make public information
punishable.
Mr. MAZZOLL I am sorry, the gentleman's time has expired. We will
have a second round.
The gentleman from Florida is recognized for 5 minutes.
Mr. YOUNG. Mr. Chairman, thank you very much.
Mr. Halperin, all of the witnesses who have testified on this matter
so far have spoken strongly condemning the actions of Mr. Agee and
some of his associates.
Your statement did not mention that. What is your attitude on
Mr. Agee and his revelations?
Mr. HALPERIN. Mr. Chairman, we are here representing the Ameri-
can Civil Liberties Union, and I have to say that the American Civil
Liberties Union I think represents Mr. Agee, or has represented him
in the past, and therefore I think it is not appropriate for us to make
comments about whether any of us individually would approve or
disapprove of any of the things that he might have done.
Our position, I think we make clear in the statement, is we want to
draft a constitutional statute which would punish Mr. Agee's conduct
in revealing the names of agents.
Mr. YOUNG. Let me ask the question minus Mr. Agee's name.
Do you think there should be protection for agents from exposure
by people who have served as fellow agents, or someone who serves
in the Government and has access to the identity of these agents?
Mr. BERMAN. Yes; I think that is the point that we have made, that
along the lines of your bill and the Bentsen bill and the Wright bill,
where you are talking about "identities" learned in the course of duty
and based on information classified, appropriately classified within
the Government, that a criminal statute could punish government
employees for revealing those names. We would try and limit the scope
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of that to where these persons are in jeopardy or will likely be placed
in jeopardy for their lives, their safety. We are not opposed to nar-
rowly drawn legislation like that. I think that we are more in line
on this bill with the criticism and concerns raised by Mr. Abrams this
morning and the Justice Department itself in saying that part 2 of this
legislation, 501 (b), raises substantial first amendment questions. How-
ever, we are not unmindful of the problems that our intelligence agen-
cies have.
Mr. YOUNG. Well, I was aware of the fact that the ACLU had repre-
sented Mr. Agee in the past, and that was the reason I wanted to get
that on the record. Despite that, you don't have any problem with try-
ing to protect our intelligence operations and the people that are in-
volved.
Mr. BERMAN. We have supported charter legislation which would
spell out the authorizations for the intelligence agencies. All we have
asked is that a balance be struck, and we think that it can be struck,
between national security concerns and rights of Americans, first
amendment values, and freedom from fourth amendment surveillance.
We have been working for that balance as long as this issue has been
before the Congress.
Mr. YOUNG. Of course, there are those who question whether "chart-
er legislation" is an appropriate safeguard of intelligence operators,
or whether it would in fact further hinder the ability of the United
States, and I think, you know, that is going to depend on what words
are in the charter.
Mr. HALPERIN. It is certainly going to depend on the words, but I
think it is more than that because I think that the issues of what kind
of surveillance of Americans can be conducted by the intelligence
agencies is too important to be left to Executive orders, and the issue
is not hindering
Mr. YOUNG. Excuse me, too important to be left to-
Mr. HALPERIN. To Executive orders, which is where it is now. That
is, the charter would substitute for an Executive order. The Executive
order imposes a number of restrictions on the intelligence agencies.
In some ways, we don't think it goes far enoughi, but it is certainly
a structure of restriction.
Mr. YOUNG. And certainly you and I have a strong disagreement
on that.
Mr. HALPERIN. And nobody, I would also say that nobody under-
stands what it means. I have been spending a fair amount of time
trying to understand it and it is not, I think, comprehensible. And
I think therefore the issue is not whether there are restrictions or
not. The issue is whether they are comprehensible or not and whether
they are legislated or not, and I think they ought to be legislated.
Mr. YOUNG. Let me move away from that particular point now to
another. I am sure you are aware of Mr. Shevchenko's recent revela-
tions that some 300 to 350 Soviet employees at the United Nations are
either KGB or GRU agents. You are probably aware of statements
made by the present Director of the FBI, and also his predecessor, that
there are more Soviet agents in the United States than the FBI can
keep track of.
In view of this tremendous involvement on the part of the Soviets
in our own country, and the fact that the FBI has responsibility for
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foreign counterintelligence programs, would you agree that this same
type of protection should be provided to the FBI, to their agents, to
their informants, people who might have families back in the Soviet
Union that could be harmed because of an involvement? Do you thin]:
we should expand protection to those people as well?
Mr. HALPERIN. I think if there was a narrow drawn statute that we
otherwise thought was appropriate, that there would be no reason why
it should not apply to an agent because he happened to be run by
the FBI rather than by the CIA.
Mr. YOUNG. Thank you very much.
Mr. MAzzoLi. The gentleman's time has expired.
Mr. Berman, you made a statement a moment ago that I think gen-
erally was that we need to debate our foreign policy and conduct de-
bates on intelligence matters and intelligence goals, and I could not
agree with you more, and I think this committee in many respects is
good for that principle.
I ask you the focus question : is it important to name names to con-
duct this debate?
Mr. BERMAN. Well, the point I was trying to make is there are
cases where I think the name might be essential. I think that the King
Hussein story without that name makes no sense, and it does not have
the same impact to tell you what kind of office is involved-that is
a judgment that you have to make, that the office alone does not tell you
the extent of our covert relationships with a foreign country.
There is the second problem, however, where you may not be nam-
ing the name, as I suggested, but where the information may reveal
that name to the Soviet Union, to someone else, to someone where it
would affect national security, where you have never named the name.
Mr. MAZZOLl. Of course. But I think the gentleman would have to
agree, at least the committee has made an effort to write in standards
of intent beyond just the mere disclosure so that I think the com-
mittee cannot be faulted in trying to focus on just the divulgence of
names to continue the debate, to insure the debate, to foster this
debate, at the same time, to say do so without naming names. That is
all we ask. We plead don't name the names, and even then, only the
names of overseas agents, only people who have been there within 5
years, so that we are trying not to have this thing a blunderbuss, and
while I would respectfully disagree with you, I do think we could
conduct this debate in a very lively, intelligent, productive manner
without naming names.
Mr. HALPERiX. Let me just say, we appreciate that the committee
has tried to narrow it, and we don't mean to suggest at all that you
have not been sensitive to these constitutional concerns. But it seems
to me that the fundamental principle of the first amendment is that
while the Government has the right to keep information secret, that
once the press or anybody in the public has access to information, the
question of whether that information is useful to the public debate on
an issue is not one that the Government can make for the individual.
That is the argument we had in the Penta-ion Papers case, it is the
argument we had in the P?'ogressire case. I think it is the argument we
have here, that absent a very compelling Government interest in a
special situation, the Government does not have the right to make that
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choice for the Washington Post or for the Covert Action Information
Bulletin, or for a citizen who wants to stand up on a street corner and
say it. If he has never worked for the Government and he has learned
that King Hussein is an agent, you may think he can make his politi-
cal without naming the name, but you don't
have the tright under the first amendment to make that judgment for
somebody else.
Mr. MAZZOLI. Well, I appreciate your position very much, and it is
bolstered by years of work in the field, and I thank you for it.
Let me shift gears for just what little time I have remaining.
I mentioned this morning, I think it was in response to one of the
statements made by Ambassador Carlucci, that there are plenty of
avenues available for citizens who have complaints to register without
divulging names, and without making the case, in a sense, public; and
I mentioned then the possibility the committee might be disposed to
insure that, to provide for that kind of citizen input which then
might obviate the necessity of some of the thoughtful people who have
great concern about and misgivings over the national direction, and
seek to change that national direction by divulging names.
Do you see any merit to trying to insure that and if so, what kind
of citizen avenue should this committee give thought to?
Mr. HALPERIN. Well, I think there is some merit to improving those
procedures, although some of them already exist. I think the most im-
portant one would be to establish a charter which included civil reme-
dies so that in cases where people's individual rights they thought
were being violated by intelligence agencies, they could go into court,
make the allegations there, and then the question of whether you had
to have the name of the person to make it would be contested in the
court. So I think that is the single most important addition that could
be made.
But I guess again I would say that that does not in any way reduce
the right of a citizen to make the information public, that the constitu-
tional right that you have to make public information which has come
into your possession is not reduced because the Government has given
you a governmental channel in which you could bring the complaint
if you wanted to do that.
Mr. MAZZOLI. I thank you. My time has expired.
The gentleman from Massachusetts is recognized.
Mr. BOLAND. Did I understand you to say that there have been few
disclosures of the names of agents?
Mr. BERMAN. I said that in the context of all the investigations,
revelations and press attention with respect to the intelligence agencies,
that we know of few instances where names have been revealed.
Mr. HALPERIN. I mean, the clear exception, of course, Mr. Chairman,
is the Covert Action Information Bulletin, which reveals more names
than every place else put together.
Mr. BoLAND. Yes.
Mr. BERMAN. Well, let me put it
Mr. BOLAND. That is one of the big problems we face, isn't it, really?
Mr. BERMAN. Well, if you passed, for example, without talking
about getting the Covert Action Information, putting aside that, if
there was a statute which went to Government officials who acquired
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access to information, it would-Mr. Agee would be on notice, if ho
were still in the Government, that if lie left the Government and pub-
lished those names in CIA Diary, that that would be a violation of the
criminal laws of the United States. But to retroactively solve this
problem, to retroactively address a case, we are pointing out that it
may have ramifications far greater than that, and instead of solving
the case, you are going to open up problems and inhibitions on the first
amendment. And it is
Mr. HALPERIN. I think the exchange between the CIA and the
Justice Department this morning underlines the dilemma of trying to
deal with that because what the Justice Department said was the way
to deal with the problem is to limit it to the use of classified informa-
tion or former Government officials. I think what the CIA then said is
what I believe to be true ; namely, that that doesn't give them the pro-
tection that they need, that the people who want to publish the names
of agents, the Covert Action Publishers, don't need the advice of Mr.
Agee or any other former official, they could do it without that, and
don't need access to classified information. They could demonstrate in
every case where they got the information from public sources.
So the dilemma that you are in, if you want to try to do something
about this problem retrospectively, is that the information is already
public, the techniques are already public, and therefore, even if all the
people now working on that problem were to vanish, a group of new
people who never had access to Government officials, who never talked
to anybody in the Government, could take the techniques that are laid
out in print and do what they now do. And I think given that situa-
tion, whatever one's view may be about whether they ought or ought
not to publish those names, I think that cat is out of the bag, and that
there is no way constitutionally to deal with that problem.
The way to deal with it in the future is not to publish the kind of
information that they use to make that analysis.
Mr. BERMAN. May I-one more scenario which would be that let's
say we pass the second part of the statute, and someone really in-
tended and believed that he had to reveal all the names in the CIA.
It would be clear that even though you have a provision which reaches
beyond the United States, that that person or group would go to a
country which has no extradition treaty with the United States and
would publish the names there. Those names would come back into
the United States, and would we say that the statute would reach
the Washington Post if it chose to publish something that was pub-
lished abroad on a second bounce?
I think that instead of solving the problem, you will push it abroad,
but you will be left with the secondary problem of what can the press
discuss and not discuss, and what is their judgment about when is a
name essential or not essential to talk about public matters of national
security import. Whereas, I think the real issue is to focus on Govern-
ment officials with respect to their access to information and protect
that, and with respect to public source information, to do what CIA
did with the register, which is to take it out of the public realm. And
if CIA has secret operations which indeed have to be kept secret, as
Mort Halperin suggests, provide better cover. But I don't think you
are going to solve this problem with this legislation, but you will open
up others.
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Mr. MAzzoLa. The gentleman's time has expired.
The gentleman from Illinois is recognized for 5 minutes.
Mr. MCCLORY. Well, I don't interpret this as a bill of attainder, and
I don't interpret it as just the Agee legislation. I think the outrage
which the American people feel because of Philip Agee's conduct,
which I believe the Director of the CIA has denominated as traitorous,
is something with which the Congress must deal, and something with
which the American people want us to deal. And in the Pentagon
Papers case, to which you have made so much reference, in Justice
Stewart's words, he says, "This is not to say that the Congress and
the courts have no right to rule. Undoubtedly Congress has the power
to enact specific and appropriate criminal law to protect Government
property and preserve Government secrets," and that is precisely the
prerogative that we are exercising in consideration of this leislation.
Could I ask you, are you familiar with Attorney Melvin L.- Wolfe?
He is a representative of the ACLU, is he not, an attorney for the
ACLU?
Mr. HALPERIN. He was the legal director. He is now in private
practice, but he is a cooperating attorney and is in fact now repre-
senting Mr. Agee, I should make clear, in his passport case on behalf
of the ACLU.
Mr. McCLoRY. Mr. Wolfe stated, as to Agee's activities, "frankly,
we think his activities improve the Nation's security. Anything that
increases public knowledge of the CIA's clandestine activities con-
tributes to world peace."
Do you agree with that statement by Mr. Wolfe?
Mr. HALPERIN. I think he was expressing it personal view. My per-
sonal view would be different than that. But I don't think that the
Congress can legislate on theories of what does or does not help the
national security. I think that people's political views are not properly
the subject of legislation, and I think that is the problem with this
"impede" standard.
Mr. MCCLORY. Well, if you are referring to political views, the
public demand for legislation, I think you are entirely wrong.
Mr. HALPERIN. No, that is not what I am referring to. I am referring
to legislation which would say something which is not otherwise a
crime is a crime because it impedes the proper functioning of a par-
ticular agency of the Government, and whether that agency is the
Agriculture Department or the Federal Trade Commission or the
CIA, I think individuals have a right to seek to criticize and to stop
particular activities of an agency of the Government that they don't
approve of.
Mr. MCCLORY. Well, in connection with enactment and interpreta-
tion and application of criminal laws, we look to the intent, and this
legislation describes the activity that a person carries on in divulging
the names or secrets or sources or whatever it is, it is with an intent
to impair or impede the foreign intelligence activities of the United
States. I regard foreign intelligence activities as being as con-
sonant with our national security as military activity on behalf of our
Nation to protect us against the-to protect the rights and liberties
which the ACLIT purports to espouse, and the thing that intrigues me
is how you can find fault with legislation which is designed to protect
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82
us against a totalitarian KGB and other secret governmental activi-
ties of our adversaries, which would destroy the very liberties we are
trying to preserve.
Mr. HALPERIN. The question, I think, is whether this bill does pro-
test us against the KGB in a way that permits Americans to continue
to exercise their first amendment right to criticize the Government.
If I think a particular weapon system or a particular CIA program is
ill-advised, I should have the right to write that or say that without
fear that I will be prosecuted for violation of the espionage laws.
Mr. MCCLoiY. But it is a legislative prerogative, and an appropriate
legislative function for us to determine whether or not the activity of
a person who, with intent, seeks to impair or impede our intelligence
activities which are consonant with our national security interests,
are accepable, and whether or not to make that a crime and to punish
the activity.
Mr. HALPERr\. That is a standard that Congress has never used
before. The espionage laws talk about an intent to injure the na-
tional defense of the United States or give advantage to a foreign
power. That is a very different standard.
Mr. MCCLORY. Well, we are in a new age, and we are plowing new
ground. New legislation always supplements existing legislation or
prior legislative activity
Mr. M AZZOLr. I'm sorry, the gentleman's time has expired.
The gentleman from Florida is recognized for 5 minutes.
Mr. YOUNG. Mr. Chairman, thank you.
Mr. Halperin, what is your position where you may have a situa-
tion like this: I disagree with the person sitting next to me. You
protect his right to do something, but by him doing that, he may in
fact jeopardize one of my rights.
Now, which side do you come down on?
You can't be on both sides. Which side do you take?
Mr. HArPERIN. I think it depends on the specifies of the issue. I
think the first amendment says that the Government can-the Con-
gress can pass no law abridging freedom of speech and freedom of
the press, and I think that means even if you don't like the speech or
the press, or even if you think it violates your rights.
Mr. YOUy G. But earlier, Mr. McClory established for its that that
has already been abridged by the fact that you do not have a legal
right to go into a crowded room and yell "fire" unless there is a fire
in the room.
Mr. HALPERr\. Falsely.
Mr. BERMAN. Unless there is a fire in the room.
Mr. HALPERr\-. Right.
But this bill is just the opposite. It only makes it a crime if you
tell the truth.
Mr. Youvr,. But the point is that your right to use the word "fire"
has been abridged, correct?
Mr. HALPERIN. That's right. There are clearly narrow circumstances
in which you can do that, and we have suggested one here. W' Te think
Congress could pass a statute which would clearly be constitutional
which would say if you choose to get access to the names of agents
and then you go and make them public, that you can be punished
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for it, and we think that is the heart of the issue. And we think a
statute could be written.
Mr. YOUNG. Well, the point that I am making is that suppose that
I believe that the Constitution has more than one article, and it gives
me other guarantees and other protections as well as the first amend-
ment, which I support every bit as strongly as you do, by the way.
But let's say that I am really strong on the concern for keeping the
security of all Americans secure. Let's say that I believe strongly
that what the handful of people like Agee does and wants to do, ac-
cording to his own words, is to disrupt CIA, which I believe is essen-
tial to maintaining my security. And let's suppose that 95 percent of
the people of the country believe like I do, that we want our security
protected. Does that give the other 5 percent the right to go out and
do things that we believe threaten our security?
Mr. BERMAN. Absolutely, in some circumstances.
They may be saying things which you don't like, they may be taking
a position which publicly demoralizes the Government. You may
strongly disagree with them. But I think that that is the foundation
of the Bill of Rights and the first amendment, and it is to protect
minority opinion, it is to protect the public's right to discuss issues,
and all we are saying is that we are very troubled by a bill which
would attempt to make secret and punishable that which is public.
Mr. YOUNG. But what about the majority, the rights of the
majority?
Mr. BERMAN. That is why we will probably prevail in court on
this. But it is-the rights of the majority are important, but minority
rights are also important. This kind of debate is an ancient as the
country
Mr. YOUNG. I understand that, and I agree with the need to protect
the right of the minority, believe me. I have been a Republican in
public office for 20 years, and I can guarantee that my rights have
been abridged many times.
However, notwithstanding that, it is my concern that if the security
of the country is not protected completely, then the other constitu-
tional rights that I enjoy today could be denied in the future, if that
5 percent minority has its way in exposing activities that are vital
to the security of my Nation.
Mr. BERMAN. You see, what we can't get into as members of the
ACLU on a position-by-position basis is what do we think is in the
national security interest of the United States. I mean, that is not
being debated here. But what I sense from the
Mr. YOUNG. No, but I
Mr. BERMAN. What I sense from your remarks is that
Mr. YOUNG. But I am one of the people who is a U.S. citizen, and
I am claiming my right to be protected as you are claiming the rights
for people like Agee to be protected.
Mr. BERMAN. I know, but there are many different opinions about
what is national security today, and it is important that those be
debated. There is no unanimity among the 95 percent of the public
or anyone else that we are clear about what our role in the Middle
East, or whether we should have covert operations or whether it was
good to overthrow the Shah of Iran or whether it is wise to start
up covert operations in Pakistan, or continue them.
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When we talk about intelligence activities, we are talking about
national security policy being developed covertly. We are trying to
set up mechanisms to try to make those policies compatible with
democratic institutions, including the existence of this committee.
But we can't simply count on two committees of the Congress to
make national security and intelligence policy for us. We also want
to debate those issues in public.
Mr. BoLAND. OR the top of your head, let me ask you whether or
not you support the Wright-Bentsen bill in preference to the com-
mittee bill?
Mr. HALPERIN. I think we would have a very strong preference to
that bill, and I think with some very small changes, we would not
have any objection to moving forward with that bill.
Mr. BOLAND. OK, thank you very much.
Mr. GOLDMAN. Your proposal in your statement is that a law such
as this should only prohibit disclosure where the activities involved
are legitimate.
From a practical standpoint, would the Government be in a position
to go to court and show that the activities that the agent was
involved in were legitimate? Wouldn't that pose the graymail
problem or the problem of disclosing more secrets and doing more
harm than any of the good that might be done from prosecution?
In other words, what practically would be the effect of enacting what
you are suggesting if the prosecutions could not be brought?
Mr. IIALPERIN. I think it would probably depend on whether we had
moved forward first with the graymail legislation, which I hope that
we would do. We took the idea, I must say, from the bill introduced by
Chairman Boland in the last Congress, and by the Senate Intelli-
gence Committee as well. I think the obligation would not be difficult
in the sense that the Government would simply have to prove that the
intelligence operator was engaged in lawful activity.
Mr. MAZZOLL The gentleman's time has expired.
We thank you very much and appreciate your attendance today.
Mr. HALPERIN. Thank you, Mr. Chairman.
Mr. MAZZOLI. Our next witness, please, Mr. Ford Rowan.
Mr. Rowan, you are welcome to join us at the witness table.
Mr. Rowan is now a visiting associate professor of journalism at
Northwestern University; however, he was until recently a corre-
spondent for NBC television news. And during his 6 years with NBC,
Mr. Rowan has reported, among other things, on the Watergate inves-
tigation, as well as investigations into the CIA and the FBI. His last
assignment was as NBC's Pentagon reporter.
Mr. Rowan, on behalf of the committee we welcome you and we
appreciate your insightful comments on matters which are very vexing
and complex, but which certainly affect an out-in-the-field kind of
journalist as you formerly were.
STATEMENT OF FORD ROWAN, VISITING ASSOCIATE PROFESSOR
OF JOURNALISM, NORTHWESTERN UNIVERSITY AND FORMER
CORRESPONDENT FOR NBC TELEVISION NEWS
Mr. ROWAN. It is a pleasure to be here today at your invitation.
It is a unique experience for me, and I understand from committee
staff that it is somewhat unique for the committee to hear from a
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reporter, perhaps because there are two main reasons for the reluc-
tance of reporters to testify before congressional connnittees. Most
are prohibited by the policy of their employers who fear that re-
porters will become advocates in controversial debates; and the second
reason is that many reporters themselves are fearful that they will
be questioned about their confidential sources.
I solved the first problem by resigning from NBC news. As to the
second one, I am . glad the committee staff assured me that you weren't
interested in finding out my confidential sources.
Mr. BOLAND. Not yet.
Mr. ROWAN. I want to protect my sources, and therefore I can
understand how the CIA wants to protect its sources, and I really
sympathize with that view. In my book I withheld the identities of
a dozen CIA officers.
In my prepared statement I discuss how most reporters confront
national security issues and decide whether to publish or broadcast
sensitive information.
Unless there is someone who wants me to read all of that, I would
rather that the statement simply be put into the record so I can get to
the heart of this issue and read only the last part.
Mr. Mazzoni. Without objection, your statement will be made a part
of the record.
Mr. BOLAND. Well, you are denying our guests here an excellent
statement.
Mr. ROWAN. I am going to start on page 8.
I don't think there are very many of us who want to see an intel-
ligence operative's life endangered by having his cover blown, or see
an ongoing covert operation derailed, or see future sources of in-
formation dry up for fear of exposure. At the committee's invitation,
I have examined the proposed legislation to make it a crime to reveal
the identity of a clandestine American intelligence officer or his
agent.
I have tried my best to avoid letting where I sit, in the press gal-
lery, determine where I stand on this issue. But as a journalist, I
cannot consider the legislation without becoming very concerned
about preserving first amendment rights. I am also a lawyer, but
I will leave the legal evaluation of the legislation to more expert
witnesses.
The proposed criminal penalties are directed against two categories
of individuals : No. 1, anyone with authorized access to classified infor-
mation who discloses the name of an intelligence operative ; and No. 2,
anyone else who might find out and then disclose the identity of a
clandestine officer or agent with the intent of harming the foreign in-
telligence activities of the United States.
No. 1, as to the first category, I think Congress is clearly within its
power to legislate these penalties. Congress can tell Government em-
ployees they cannot divulge classified information. My only problem
with this is simple : I don't think it will work. Some people will leak
information no matter what the rules and no matter what the penalties.
An insider who feels strongly enough about the wrongful nature of a
clandestine operation to disclose it probably will base his decision on
whether to also name names for reasons that are unrelated to potential
criminal penalties.
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No. 2, as for the second category of potential offender in the legisla-
tion, section 501 (b), the category which would include the press, my
objections are much more strenuous. First, unlike CIA or military
intelligence officers, reporters have taken no oath to keep secrets. And
second, reporters should not be forced by Congress, in effect, to take a
secrecy oath. And that's what this bill would do. Yet reporters would
violate their responsibility as disseminators of information if they were
forced into keeping secrets rather than permitted to evaluate whether
what they have learned should be published.
We have to face this fact: Most reporters just do not usually come
across this type of information, and few pursue it, and very few want
to name names at all. We can imagine a worst case, where a reporter is
a traitor. But let's look at an example where disclosure of names might
be in the public interest. Look back at the uproar over alleged assassi-
nation plots against foreign leaders a few years ago. When it became
known that the CIA had engaged in such plots, there was disagree-
ment between public officials over whether such activities were ordered
from the White House or whether the Agency was acting like a rogue
elephant out of control. The public had an important stake in finding
the answer to that question. Official investigators in the Senate recog-
nized the importance of identifying the intelligence officers involved,
and many 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 im-
pair or impede the foreign intelligence activities of the United States.
While inclusion of this intent provision is an improvement over other
proposals on the subject, it would not solve the dilemma posed by the
example 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, yet they
hoped in most cases that the United States would be helped, it would
help it regain the respect it had lost in the world.
Disclosure of assassination plots and drug experiments and spying
on law-abiding American citizens has helped our Nation's interest in
preserving liberty.
In sum, it is a mistake to decree that all foreign intelligence activi-
ties of the United States equally merit secrecy. Some should be exposed,
some should be denounced, and some should be dismembered. Congress
should not pass legislation which interferes with the first amendment
right to expose illegal, unethical or immoral conduct.
I recognize that there are some individua{s outside the mainstream of
responsible journalism today who wish to harm this country. I fear
that they could avoid the penalties in this bill by carefully sidestepping
the intent provision. They would have to be less blatant in their anti-
Americanism, of course, but they could claim that all these names were
being made public to strengthen American intelligence activities by
getting rid of covert types and perhaps freeing the Agency to do
more analysis, for example.
Now, while such arguments from some critics would not be very
persuasive, they could operate to reduce the chances of successful
criminal prosecution. Now, if that seems farfetched to some of you who
have read Philip Agee's disclosures, let me remind you that as far as I
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know, he has never used the label "defector" to describe himself. My
hunch is that this bill is directed against Agee and his type. Insofar as
he falls into the first category as one who has received information
through authorized access, he would be subject to criminal penalty.
However, for information received after he left the Agency, I believe
he would be treated as anyone else in the second category. For a prosecu-
tion to be successful, intent would have to be proven. My feeling is that
a skillful propagandist would be able to disguise his true intentions, at
least enough to discourage the Justice Department from acting against
him.
In short, the bill contains loopholes for traitors but could ensnare
patriotic individuals who criticize certain intelligence activities.
I do not think that the inclusion in 501(b) of this second category
of individuals who would be subject to criminal penalties for divulging
the names of intelligence operatives will do very much to prevent such
disclosures. I am glad to see that the committee bill does not contain
injunctive powers to halt publication or broadcast, but it could be
' argued that the criminal sanctions themselves have a chilling effect
for anyone contemplating disclosure. My feeling, however, is that
neither injunctions nor criminal penalties will provide much control
over the flow of information. I have never been chilled by anything.
Look how unsuccessful the Federal Government was when it tried to
enjoin publication of the Progressive magazine article on how to build
an H bomb. If you can't stop disclosure of atomic secrets, I doubt if the
Government can stop disclosure of the names of some of its spies. Spill-
ing H bomb secrets just seems to be much more threatening to national
survival.
The H bomb article was based in part on unclassified information
available in Government libraries open to the public. That factor in
that episode could have relevance to our discussion today, for this bill
would punish a reporter who combed through open sources, such as bio-
graphical registers, to identify covert officers and agents. The Govern-
ment extracts a high price from journalists when it seeks to punish
them for revealing what the Government itself was too inept to keep
secret.
It is well known that for years it was possible to identify CIA per-
sonnel on embassy staff by checking State Department registers. The
Federal Government 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 keep the secrets.
This is the path I would recommend for you : strengthening the inter-
nal governmental processes for intelligence agencies while avoiding
new prohibitions which unconstitutionally interfere with freedom of
the press.
Democracy works best that. knows most. Some conflicts between the
press and Government agencies are healthy, symptomatic of a dynamic
society with competing values. An independent press with watchdog
functions, the tradition of open criticism. the disclosure of corruption,
the reform of institutions, all these contribute to a vibrant society.
Society, the public, pays a price when Government attemps to seal
off part of its activities from public view. In some cases, the courts
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have sided with 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 national security.
While first amendment guarantees may not be absolute, they should
be tampered with only very cautiously. I am sorry to decide this, be-
cause I know this committee has made a responsible effort to try to
write legislation that deals with a difficult problem, but my only con-
clusion in this matter must be that the legislation is unnecessary,
unworkable, unconstitutional.
[The prepared statement of Mr. Ford Rowan follows:]
TESTIMONY OF FORD ROWAN
Mr. Chairman, I sympathize with your desire to shield American intelligence
officers and agents from publicity which could endanger their lives. However, I
have serious reservations about whether this proposed legislation would prove to
be effective. Moreover, parts of the proposal seem to he unconstitutional.
I would like to begin with a story that was told to me by one of the people this
bill seeks to protect. This man fought for his country as a pilot, obtained a
doctorate, and served as an intelligence officer. He is a perfect combination of
soldier, scholar, and spy. I will never forget one encounter with this man during
the period when two congressional committees were investigating alleged assassi-
nation plots directed against foreign leaders.
"Let me tell you the story about the dead man who went seeking a decent
burial," my CIA source said. It was a simple story about a fellow who tried to
arrange for his own burial because he claimed, "I've been dead for 2 weeks." A
priest and then a doctor were called in, but both failed to shake the poor fellow's
conviction that he had already died.
Finally, the CIA man recounted, the doctor turned in desperation to logic.
"My man, isn't it true that a corpse that's been dead for 2 weeks cannot bleed?"
the doctor asked. When the fellow agreed the doctor took a little knife and
nicked the fellow's hand and, of course, it bled. "See," the doctor said, "You're
bleeding."
"Well what do you know," the fellow answered, "corpses do bleed."
My CIA source told that story to point out that different people can look at the
same facts and reach very different conclusions. Everyone processes information
through his own frame of reference, his own mind set, his world view. ]'acts
which do not fit preconceived notions or rub against deeply held attitudes often
are rejected or cause conflict in the eye of the beholder.
This CIA officer mentioned two examples. The civil rights demonstrations
contradicted the bigoted view of many whites. The pictures of American soldiers
burning civilians' homes in Vietnam did not match our view of ourselves as
honorable victors. Turmoil resulted in both these cases when new realities con-
fronted old attitudes.
I have always tried to keep in mind how important perceptions can be when
news is communicated. Let's say that the House Intelligence Committee releases
a report that outlines some analytical failures by the CIA. Aside from the writ-
ten report, my story would be based on comments by committee members, staff,
CIA officials, and intelligence neonsumers at the White House. Each would speak
from his own perspective. When I would write my story my own attitudes would
assert themselves no matter how hard I tried to be objective. Then my editors
and producers would get a whack at the story. Finally, when the listeners
heard the story each would interpret it from his own perspective-that means
millions of perspectives.
So is it any wonder that many people may have very different impressions
after listening to that story-far different from those intended by the committee
members when they voted on the report?
In a pluralist democracy uniformity of thought is no virtue. But agreement
about the facts encourages wiser public understanding of events, wiser choices
between competing goals. Put another way, clarity in the description of a prob-
lem permits advocates of varying approaches to work out better solutions. Or,
as a former Director of Central Intelligence, James Schlesinger, is quoted as
saying, "Everyone is entitled to his own opinion, but not to his own facts."
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Forgive me if I spend less time giving you my opinions about this legislation
and dwell on some facts about news reporting. I believe that most public offi-
cials have only a partial understanding of journalism, despite the fact that most
of you deal regularly with journalists. Perhaps I can help broaden your
perspective.
I appreciate the invitation to testify. For 11 years I have covered congres-
sional hearings as a reporter, but this is the first time I have been on this side
of the witness table.
I am currently a visiting associate professor of journalism at Northwestern
University. Prior to accepting this position several weeks ago, I served as NBC's
Pentagon correspondent. I resigned from NBC news in a dispute over editorial
policy ; I felt NBC was irresponsible in providing an unedited prime time propa-
ganda platform to terrorists when the network agreed to air an interview with
one of the hostages in Iran.
Episodes of terrorism require self-restraint by journalists. The subject matter
of interest to this committee today also demands that journalists exercise re-
straint so that lives are not jeopardized needlessly.
I first became involved in covering 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 people who serve their country in the intelligence com-
munity. Most of them are honest, intelligent, patriotic. Some, however, fit this
description : ". . . 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 condemned 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.
Publication of the investigative findings may have contributed to a healthier
intelligence community by refocusing its attention on its proper role and de-
emphasizing the undue stress on covert operations, some of which were directed
against law-abiding American citizens.
It was a challenge to cover the probes of the CIA, FBI, NSA, IRS, and military
intelligence units. In the race to dig up the dirt about drug experiments, assassi-
nation plots, and domestic spying, there was always the danger that reporters,
too, would become zealots who meant well but lacked the necessary understand-
ing to fit the stories into a broader perspective.
I say this to try to convey what some public officials may doubt, that re-
porters believe in many of the same values as you. The first amendment confers
enormous power upon journalists and most of us feel that the responsibilities
are also enormous. Most of us are patriots, but the day is past when simply
waving a flag will convince a reporter or editor to kill a story without excep-
tionally compelling reasons.
Too many reporters have seen the phrase "national security" used to try to
hide embarrassing and illegal conduct by government agencies.
In covering intelligence activities a reporter had to exercise judgment when
deciding which way to direct his investigatory efforts, in deciding which facts
to stress or omit, when deciding which activities should be disclosed. For ex-
ample, when I broadcast the first story about computerized electronic surveil-
lance by the National Security Agency in 1975 I felt that the domestic spying,
directed by an agency involved in foreign intelligence gathering against Ameri-
can citizens, was so newsworthy that disclosure outweighed any arguments about
sensitive sources and methods being compromised. I cite this example because it
was a hard case and one that could still spark disagreement today.
I realize that intelligence officers and many public officials feel very uncom-
fortable knowing that journalists-unelected and sometimes unwashed-sit in
judgment on their conduct. Aside from reminding you that this is a result of the
first amendment, I would like to stress that most American journalists try to
make responsible judgments. Most try to balance competing values. Most do not
favor disclosure for disclosure's sake. Few want to damage their nation's true
security interests. Of course, others fall back on the old idea of letting the chips
fall where they may. And some just don't give a damn. Perhaps a few hate this
country.
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But I know enough reporters to feel secure in testifying that most do not want
good news stories to produce bad results.
I can understand how this committee would want to legislate a halt to some
bad results. Few of us want to see an intelligence operative's life endangered by
having his cover blown, or to see an ongoing covert operation derailed, or to see
future sources of information dry up for fear of exposure. At the committee's
invitation I have examined the proposed legislation to make it a crime to reveal
the identity of a clandestine American intelligence officer or his agent.
I have tried my best to avoid letting where I sit (in the press gallery) deter-
mine where I stand on this issue. But as a journalist I cannot consider this
legislation without becoming concerned about preserving first amendment rights.
(Although I am also a lawyer, I will leave the legal evaluation of this legislation
to more expert witnesses.)
The proposed criminal penalties are directed against two categories of individ-
uals: (1) anyone with authorized access to classified information who discloses
the name of an intelligence operative and, (2) anyone else who might find out
then disclose the identity of a clandestine officer or agent with the intent of
harming the foreign intelligence activities of the United States.
(1) As for the first category, I think Congress is within its power to legislate
these penalties. Congress can tell government employees they cannot divulge
classified information. My problem with this is simple : 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 about the wrongful
nature of a clandestine operation to disclose it probably will make his decision
on whether to also name names for reasons unrelated to potential criminal
penalties.
(2) As for the second category of potential offender under the legislation, the
category which would include the press, my objections are much more strenuous.
First, unlike CIA or military intelligence officers, reporters have taken no oath
to keep secrets. Second, reporters should not be forced by Congress to-in effect-
take a secrecy oath. That's what this bill would do. Yet reporters violate their
responsibility as disseminators of information when they are forced into keeping
secrets rather than permitted to evaluate whether what they have learned should
be published.
Let's face it : most reporters just do not come across this type of information.
few pursue it, and very few want to name names at all. We can imagine a worst
case, where the reporter is a traitor. But let's look at an example 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 between
public officials 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 investiga-
tors recognized the importance of identifying the intelligence officers involved
and many 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 is an improvement over other proposals on this subject, 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, yet
they hoped-in most cases-that this would help the United States regain some
of the respect it had lost in the world.
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, dis-
membered. Congress should not pass legislation which interferes with the first
amendment right to expose illegal, immoral, and unethical conduct.
I recognize that there are some individuals outside the mainstream of respon-
sible journalism today, who wish to harm this country. I believe they could avoid
the penalties in this bill by carefully sidestepping the intent provision. They
would have to be less blatant in their anti-americanism. of course, but they could
claim that the names were being made public to strengthen American intelligence
activities by getting rid of covert types and freeing the agency to do more
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analysis, for example. While such arguments from some critics would not be very
persuasive, they could operate to reduce the chance of successful prosecution. If
this seems farfetched to some of you who have read Philip Agee's disclosures, let
me remind you that as far as I know he has never used the label "defector" to
describe himself. My hunch is that this bill is directed against Agee and his type.
Insofar as he falls into the first category, as one who has received information
through authorized access, he would be subject to criminal penalty. However,
for information received after he left the agency, he would be treated as anyone
else in the second category. For a prosecution to be successful, intent would
have to be proven. My feeling is that a skillful propagandist would be able to
disguise his true intentions, at least enough to discourage the Justice Department
from acting against him.
In short, the bill contains loopholes for traitors but could ensnare patriotic
individuals who criticize certain intelligence activities.
I do not think that the inclusion of this second category of individuals who
would be subject to criminal penalties for divulging the names of intelligence
operatives will do very much to prevent such disclosures. While I am glad to see
that the committee bill does not contain injunctive powers to halt publication or
broadcast, it could be argued that the criminal sanctions themselves would have
a chilling effect for anyone contemplating disclosure. My feeling, however, is that
neither injunctions nor criminal penalties provide much control over the flow of
information. Look how unsuccessful the federal government was when it tried
to enjoin publication of the Progressive magazine article on how to build an H
bomb. If you cannot stop disclosure of atomic secrets I doubt if the government
could stop disclosure of the names of some of its spies. Spilling H bomb secrets
seems much more threatening to national survival.
The H bomb article was based in part on unclassified information available in
government libraries open to the public. That factor in that episode could have
relevance to our discussion today, for this bill would punish a reporter who
combed through open sources such as biographical registers to identify covert
officers and agents. The government extracts a high price from journalists when
it seeks to punish them for revealing what the government 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 to see if they were listed
as FSR's, foreign service reserve officers, or regular foreign service officers,
FSO's. Such techniques were not foolproof (my wife worked as an FSR in the
State Department and she was not involved with intelligence.) But the Federal
Government acted to make 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 gov-
ernment process for these intelligence agencies while avoiding new prohibitions
which unconstitutionally interfere with freedom of the press.
Democracy works best that knows most. Some conflicts between the press
and the government are healthy-symptomatic of a dynamic society with com-
peting values. An independent press with watchdog functions, 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 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 publica-
tion of certain information would harm national security.
While first amendment guarantees may not be absolute, they should be tam-
pered with very cautiously. This proposed legislation is unnecessary, unworkable,
and unconstitutional.
Mr. MAZZOLI. I thank the gentleman for his statement. Do you
mean that the entirety of the legislation or that part dealing with the
unauthorized disclosure by members of the press is unconstitutional?
Mr. ROWAN. Well, my comments as to the unconstitutionality go to
the disclosures about the press.
Mr. MAZZOLI. The first section about
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Mr. ROWAN. But the first section about Government employees
really doesn't bother me. It is just that I am not sure it would work.
Mr. MAZZOLr. I understand. But the unconstitutionality charge
is
Mr. Rowe. Is to 501 (b).
Mr. MAzzoLr. Well, certainly, I am sure that you must be very good
for the young journalism students learning their tools because you
bring a wealth of information and a very sensitive view.
Mr. RowA\. Thank you.
Mr. MAZZOLr. I would ask you this, Mr. Rowan, and I thought your
formulation very interesting on page 11 in which you suggested that
reporters who name names are really trying to change the foreign
policy by getting rid of some corrupt or unnecessary aspect of it, and
therefore they could plead that as a defense.
May I ask you, though, could not this impairment, assuming for the
purpose of argument that it is an impairment in the public interest,
could not this impairment of foreign policy, foreign intelligence
activities take place without naming names if the person were devoted
to that cause? Could it not be done without naming names?
Mr. ROWAN. Well, in a lot of cases it is done without naming names,
but that doesn't mean that in every case it can be done without naming
names. I believe that the debate over the assassination plots required
that names be known so that people could find out who was account-
able.
Now, just to say that the Senate Committee could try to trace
accountability and then issue a report, perhaps scaled down, with all
the names deleted, I think would have left the public questioning a
lot more than they did anyway.
Let's take the case of the drug experiments. Assuming that they
would fall under this legislation and some had been conducted over-
seas-and incidentally, there were operational aspects of the drug
experiments, it wasn't simply research-all those operational aspects
have not come out publicly. But assuming a reporter found out about
them, publication of names might be the only way that the issue could
be clearly discussed. For example, how could you discuss the death
of two people, one in an Army program and one in the CIA program,
without naming them? I would have trouble there.
So in most cases, no names. But since there are some cases when I
think you have to have names, all of a sudden that 501(b) becomes a
very damaging prospect for the first amendment.
Mr. MAZZOLr. Earlier this morning, perhaps before you were here,
my colleague from Georgia, Mr. Fowler, said that this is a question
of balance. The nrohlem facing this committee is balancing. The
gentleman from Florida, Mr. Young, talks about balancing the rights
of the minority and the majority, and I think here probably the
difference that separates us somewhat here in good faith is the
fact that the balance that I see is in favor of limiting the use
of names unless there is an absolutely overwhelming and im-
possible task to be performed that needs the actual name, and
I again with respect think that you could have written some
very excellent and revealing drug stories without naming
the two who died. They will be named to the officials of the Govern-
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ment; payments will be made to the families; people will be sacked
and their heads will roll who took part in those things. But again,
I just, with respect, would say that most of those stories, if not all of
them, could have been pursued with the same zeal and with the same
effect without necessarily going to the names.
As a lawyer in addition to being a professional journalist, you do
feel, however, that as to the first part, the section dealing with disclo-
sures of information acquired by people who obtain the information
is an official capacity could, with some attention, pass constitutional
muster.
Mr. ROWAN. I think it could. The only problem I would have with
that section is whether the prohibition continues after a Government
employee has left Government service and learns information that is
from public sources and has no connection with what he found out
when he was under oath. I don't know about that.
Mr. MAZZOLI. Well, you bring up a very good point, and I asked an-
other witness earlier about whether he gave credence to the CIA
position, which is that a former agent or a former employee does
develop techniques and certain capabilities for ferreting out this in-
formation later which the average citizen doesn't, and therefore there
should be a sizeable proscription on them throughout their life.
Mr. ROWAN. Well, I should hope that the CIA operative would be
able to ferret out information better than an average citizen or they
wasted heir time training him.
Mr. MAZZOLI. Well, I mean I think the point was not so much
whether or not they gained it, but having gained these talents, it is
incumbent on them not to use them in ways which will perhaps lead to
the divulgence of names which could lead to the death or to the lack of
security for some of their former colleagues.
Mr. ROWAN. Well, I think there is no doubt about it, once you bite on
the apple of knowledge, you can't unlearn it, and I mean, if they learn
tradecraft secrets and the way to go about finding information, cer-
tainly they are more skilled than most people. But that doesn't mean
they are more skilled than all people.
Mr. MAZZOLI. But if the committee were to decide, then, to put a
greater burden on them to be careful in the use of that kind of knowl-
edge where the use of it might lead to the harm to some American citi-
zen, particularly an undercover agent, the committee probably would
be on somewhat more solid ground?
Mr. ROWAN. Well, my feeling is that you can go ahead and try to
legislate a continuing secrecy oath that covers a man from the day he
takes it until the day he dies. You can try, but the courts will resolve
that. And since my expertise is not along those legal lines but
rather along how it would apply to the press, I would defer to your
judgment and later to the courts, if that happens.
Mr. MAZZOLI. The Chair's time has expired. I thank you very much.
The gentleman from Massachusetts.
Mr. BOLAND. Mr. Rowan, I want to compliment you on a very forth-
right and very spirited statement.
How do you handle something like the Covert Action Information
Bulletin, particularly that section, naming names. As we know, they
do it all the time, whenever they get them, they name names in their
publication.
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How do you handle that problem, or should we address ourselves
to that problem at all?
Mr. ROWAN. Well, I know you will not like this answer, but I don't
think you can handle that problem. I have talked about how
Mr. BOLAND. We can't handle the problem without some legisla-
tion, I don't think.
Mr. ROWAN. And I don't think even successfully with legislation.
Now, I have spoken mostly about the mainstream journalism, re-
sponsible journalists, journalists who weigh and actually balance
competing values when they decide whether to name names or print
something, or publish something. But the first amendment wasn't
just designed for mainstream journalists. In fact, it wasn't designed
for institutions at all, although over time it has come to cover in-
stitutions. The first amendment was designed for Tom Paine, who
printed up pamphlets. And so, if the Covert Action Bulletin is
mimeographed off in somebody's basement, it has the same protections.
I mean, you could make the argument that this is what the Con-
stitution was designed to protect: an individual or small group
printing up stuff. And I think you are stuck with it. I don't think you
can legislate what they can and cannot print.
Mr. BOLAND. Well, I think this proposal does meet that. There is
a difference of opinion anyhow, but let me ask you, I presume that
during your some years as a reporter, did you ever have knowledge
of the identities of undercover CIA officers overseas?
Mr. ROWAN. Most of my attention was directed at the domestic spy-
ing investigations, but I think I would have to say yes to that question
because I did know some who had worked overseas, yes.
I didn't direct most of my attention to what was happening over-
seas. For example, on Chile, I didn't cover the activities that happened
in Chile, although later on came to know some of the people that had
been involved, yes.
Mr. BOLAND. What about some of your colleagues that were work-
ing overseas. I presume that they had knowledge of the identities of
undercover CIA officers overseas, couldn't help but have, I presume.
Do you have any indication of how, without revealing the sources,
how that information might have been obtained by any of your col-
leagues, or even by you if you have it?
Mr. ROWAN. Yes. Well, when you are in a foreign country it is
usually not very hard to figure out who the CIA station chief is. It is
usually well known in the journalistic community.
The previous witness, I think it was Mr. Halperin, discussed how
there are different levels of cover, and for anybody who is identified
as a U.S. Government employee, it is certainly lighter cover than for
someone who is an employee of a business and is not listed as a Gov-
ernment. employee. But it was generally well known among reporters.
Whenever I traveled they would know who some of the CIA guys
were, and very often had contacts with them because they in effect
were trading information. You want to find out what this guy knows,
and sometimes you would share it with him. In fact, there is a big
fuss about whether the CIA has used reporters as sources of informa-
tion. Well, I am opposed to the cultivating of journalists as agents,
hut, in terms of the interaction of reporters and Government em-
ployees, both State Department, CIA, and military, there is always
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some sharing of information. It is usually not a form of being co-opted.
It, is just a form of keeping your lines of communication open.
But I mean yes, the answer is yes. We knew who some were.
Mr. BOL_1\D. Thank you very much.
Mr. MAZZOLI. I thank the gentleman. His time has expired.
The gentleman from Illinois, Mr. McClory.
Mr. MCCLORY. Well, as a journalist, if you have some secret
information that you thought was of extreme importance to the
security of the United States, you would not hesiate. would you, im-
parting that confidentially to the CIA or other intelligence agency.
or do you think that there is some restraint because you are a
journalist?
Mr. ROWAN I would have to see an example. It depends, I mean, on
a scale of 1 to 10, if I found out something that would harm the coun-
try a little bit, I probably wouldn't feel compelled to tell all. If I found
out that the Russians were-let's take an extreme example that is very
unlikely. If I found out the Soviets were planning a sneak attack, I
think I would tell my Government. That is about the worst case I
can think of.
But in between there, reporters are worried about becoming co-opted
by the officials they have to cover so, we don't immediately run out
and volunteer every bit of information we get, but if I found out
my country was about to be attacked, I don't think I would keel)
it secret.
Mr. MCCLORY. You are worried about imparting information that
might be beneficial to the protection of your country?
Mr. ROWAN. No; not so much worried about imparting the in-
formation as worried about the consequences of becoming, in effect. a
Government agent. And I am sure you remember nuite well how the
Tntelligence Committee went through this whole bit. I know you do.
Mr. Dic CLOaY. I served on the Pike Committee and on this commit-
tee, and the thing that appalls me is that there has been so much
emphasis on the part of the so-called responsible, journalists with
regard to-you make reference today to the assassination plots-and
so little attention paid to the tremendous contributions made during
this entire period. To think that we were at peace between 1945 and
1965 with just a smattering of information related as far as the tre-
mendous contributions of all of our intelligence agencies, to maintain
the peace, to save American lives, really to maintain peace throughout
the world. It strikes me that the attacks on the CIA have been so
terribly exaggerated that, we are now experiencing a deficiency in
intelligence that is impairing, threatening our very survival.
Tell me this, do you give any credibility to the sentiments of one of
the nation's great liberals, Senator Pat Moynihan, that, perhaps we
should be directing more attention now to protecting ourselves against
the secret activities of the KGB and other foreign intelligence agencies,
and perhaps providing the kind of support that the intelligence agen-
cies say they need in order to strengthen our intelligence capability?
Mr. ROWAN. Congressman McClorv, as Senator Moynihan has said.
there, is a great deal of activity by intelligence agents of hostile or
potentially hostile powers. and I have always been concerned about it.
T have done stories on it. It is a lot more difficult to find out informa-
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tion about hostile intelligence agents. But when we found it out, we
broadcast it. But I agree with the sentiment that it is good to disclose
what the other side is doing. I agree with that.
Mr. MCCLORY. Well, we do have serious restraints which are imposed
on our own intelligence agencies.
NOW, tell me this. Do you feel that journalists are entitled to some,
preferential treatment as far as citizens are concerned? Is there a
special privilege that journalists should have that other citizens of the
Nation don't have?
Mr. ROWAN. No. Journalists are the public. We have no rights
greater than the public, and I believe the public should have a lot of
rights.
Mr. MOCLORY. Well, in substance, though, you don't want any legis-
lation, and you really don't see any problem that we should bdealing
with legislatively.
Mr. ROWAN. Well, there may be a problem. I just don't know that
this is the solution, and as I say, my basic concerns go to 501(b).
Mr. MGCLORY. OK.
I yield back my time.
Thank you.
Mr. MAZZOLr. The gentleman's time has expired.
The gentleman from Florida, Mr. Young, is recognized for 5
minutes.
Mr. YOUNG. Mr. Chairman, thank you very much.
Mr. Rowan, your argument is very persuasive, let me first say that.
You have been in parts of the world where a state of war existed.
Mr. ROWAN. Yes.
Mr. YOUNG. And you know that such a lifestyle is entirely different
than it is sitting here in this committee room today.
Mr. ROWAN. It sure is.
Mr. YOUNG. People are scared to death, they don't know who to
trust, they don't know what is going to happen next. If that state
actually existed here in the United States, in Washington, D.C. right
this moment, would your comments be any different than they were
today?
Mr. ROWAN. I would hope not. I would hope that my point of view
is sufficiently mature so it wouldn't blow in the wind.
Mr. YOUNG. But it could, couldn't it?
Mr. ROWAN. No one is infallible.
Mr. YOUNG. I just wondered if you would think that from the
standpoint of intelligence, in view of the revelations of how active the
KGB and the GRU are in the United States, if you wouldn't consider
that maybe a minor state of war does exist at the intelligence level at
this point between our intelligence community and the Soviet intel-
ligence community.
Mr. ROWAN. Congressman, I don't have any trouble with your
going after KGB and GRIT agents. If you can write legislation that
would put them all in jail, I would be happy.
Mr. YOUNG. I understand that, and I
Mr. RowAN. That is not what this legislation does.
Mr. YOUNG. I appreciate that, but that is what we are trying to do.
We are trying to make sure that someone doesn't make it easier for the
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KGB to do their job to do us in. That is what we are really trying
to do.
As I say, I appreciate your comments, and they are very persuasive,
and believe me, this is one member that is going to take them into
serious account when we start to mark up this bill.
By the same token, I have got to be concerned about the security of
more than 200 million people that live here in the United States and
protect them from the onslaught of intelligence activities being directed
against this Nation of ours by the Soviet Union, and many others, right
here in our own country. We are even helping to pay for some of it,
be] ieve it or not, at the United Nations.
The problem that we always talk about is the first amendment. There
is more than one amendment in the Constitution. The 14th amend-.
ment is also there that guarantees the right of equal protection under
the Constitution, and I am concerned that if we get too narrow in our
definition of one particular part of that Constitution, we may jeop-
ardize the entire Constitution. If that happens, we are in trouble.
President Carter has said in his state of the Union message that
the free world was faced with a more serious threat today than we have
seen since World War II. If that is the case, then the security of this
Nation and every other free nation is in jeopardy, and when security
is in jeopardy, that means that the answer hasn't been determined yet
who is going to come out ahead. And if one minor mistake on the part
of someone who believes that they are doing good for the public by
revealing names or activities causes the downfall of the very constitu-
tional system we are talking about, to me that has got to be taken into
consideration as well.
Mr. RowAN. Congressman, leaving aside the first amendment ques-
tions and any questions of constitutionality, I have read enough his-
tory to know that in times of warfare, political liberties can shrink.
I just hope that this committee doesn't contribute to that. If it can
fashion legislation that avoids that, do it. But try to avoid chipping
away at the first amendment. That was my argument. I don't think
501(b) is constitutional. I don't think it is a good idea. I think people
have the right to speak out and to publish, and I know that at times
that rubs up against other values, including, perhaps, the question of
the survival of intelligence operatives. But I come back to the point
that while I may not be an absolutist about the first amendment, it was
listed first when the framers decided to amend the Constitution, and
it does provide all kinds of political safeguards. "Congress shall not,"
that is what it says, and I hope that this committee will remember that.
And I recognize the committee has taken a responsible approach to
this. I just don't think what you fashioned makes it.
Mr. YOUNG. Well, we appreciate your concern. We are going to try
to save the Nation and the first amendment at the same time.
Mr. MnzzoLI. The centleman's time has expired.
May I thank you, Mr. Rowan, and we, appreciate it.
Mr. Evans, if you would abide with us for a few seconds, we will
vote and come back.
We will take a recess for just a few minutes.
Mr. BoLAxn. Thank you very much.
Mr. Rowax. Thank you.
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[A brief recess was taken.]
Mr. MAzzoLi. The subcommittee will come to order.
It is our pleasure to recognize the last witness of the afternoon ses-
sion, Mr. M. Stanton Evans, who is also a member of the fourth estate.
He is also a columnist, has been a reporter, a commentator on CBS
Radio, a former editor of the Indianapolis News, and at the time of
his appointment, the youngest editor of a daily newspaper in the
Nation.
Mr. Evans, we are looking forward to hearing your views.
STATEMENT OF M. STANTON EVANS, JOURNALIST AND COMMEN-
TATOR, FORMER EDITOR, INDIANAPOLIS NEWS
Mr. EvANS. Thank you, Mr. Chairman.
I would point out that, that designation as youngest editor was many
years ago.
Mr. MAZZOLI. Well, I thought it was yesterday or the day before,
for sure, because
Mr. EvANS. Thank you.
My statement is rather brief, so I think I will just read it, if that is
all right.
Mr. MAZZOLI. Fine.
Mr. EVANS. Beginning with the substantive portions.
I appreciate the invitation to appear before your committee today
to offer testimony on H.R. 5615, the Intelligence Identities Protection
Act. While I am hardly an expert on the complex matters under dis-
cussion, I feel strongly that the principle embodied in this bill is sound,
and that passage of legislation protecting our intelligence officers from
exposure or harassment and possible death is urgently required.
That a systematic campaign is underway to expose case officers of
the Central Intelligence Agency, and to name others allegedly work-
ing for the CIA, is well known to members of this committee. Also
well known is the fact that there have been instances in which indi-
viduals thus exposed have subsequently been murdered.
It is my belief that this campaign of exposure and denunciation
must be opposed to safeguard the intelligence officers in question, to
protect individuals with whom they may be working in other coun-
tries, and to defend the national security of the United States. I find
no inconsistency between these objectives and traditional safeguards
for freedom of the press.
As I see it, the threshold question in this debate is : Whose side is one
on? I mean this quite literally. The attack on our intelligence agencies
and the attempt to expose their operatives is based on the premise that
the intelligence services of the United States are enemies to be relent-
lessly combatted.
One need only sample some of the literature on this question to grasp
the viewpoint of those engaged in this campaign. In one such publica-
tion, for example, case officers of the CIA are referred to as "latent
criminals" who are engaged in "atrocities" and who should be en-
couraged to redeem themselves by returning "to the human race." I
am quoting from the issue of counterspy for December 1978. No
similar epithets are aimed at the Soviet KGB or the Cuban DGI,
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nor are these Communist espionage and intelligence networks tar-
geted for similar exposure.
Such attitudes are understandable in the case of explicit enemies
of the United States, such as East Germany, whence came the exposure
of AID official Dan Mitrione, falsely identified as a CIA agent, and
subsequently murdered by the Tupamaros who used the exposure as
justification of their action. They are less comprehensible coming from
people who profess devotion to the free institutions of the West in
general, and of the United States in particular.
To the degree that it is merely confused, the recent campaign against
the CIA had its origin in the furor over reported excesses by the Agen-
cy, at a time when we were being assured the cold war was over and
done with. Recent events, I should think, have served to correct that
mistaken perspective, and to demonstrate that we need to insure that
our intelligence operatives can function effectively, and when possible,
safely, overseas.
The Soviet invasion of Afghanistan and other recent actions by the
Communists have demonstrated all too clearly that the cold war is
by no means over, that it is, if anything, intensifying, and that the
principal enemy confronting the American people is the apparatus
of international communism.
By the same token, the crisis in Iran has demonstrated that our in-
telligence agencies are, or should be, an essential component of our de-
fenses. The point has effectively been made, indeed, by a report of this
committee. Most observers are. now willing to concede, I think, that the
crippling of our intelligence agencies severely limited our ability to
monitor and forecast events in that troubled nation.
In addition, the seizure of American hostages at our Embassy in
Tehran and the charges lodged against them make it all too plain that
our personnel abroad, particularly those allegedly connected with in-
telligence, are targeted for hostile action by our adversaries.
From all of which I think it fair to conclude that systematic efforts
to secure and publicize the names of our intelligence operatives over-
seas is fully comparable to publishing military information useful to
the enemy. I therefore believe it is not only the right, but the impera-
tive duty of the. Congress to impose sanctions against such disclosure.
Concerning the particulars of the bill before us, I believe the dis-
tinction drawn between those who have lawful access to classified in-
formation and those without'such access is proper and constitutes a
reasonable safeguard for the rights of the press. Likewise, the fact
that the Government must prove intent to impede or impair foreign
intelligence activities of the United States in the latter instance is a
sensible precaution.
From the standpoint of the press, also, the fact that the bill does
not authorize prior restraint but imposes responsibility for willfully
harmful disclosure following publication is an important and wel-
come distinction. In this respect, I find H.R. 5615 preferable to H.R.
3762, which seeks to attain the same general objectives.
On the other hand, as I read it, H.R. 3762 would also implicitly
authorize protection for FBI operatives engaged in counterterrorism
and counterintelligence activities, and I further understand that H.R.
6316, presented by Mr. Young, would explicitly authorize that type
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of protection. I think that sort of protection is required. Since the
hazards confronted by these officials are also quite real, they should
have the same sort of protection against unauthorized disclosure as
that afforded otherwise in H.R. 5615.
And that concludes my prepared statement.
Mr. MAZZOLI. Mr. Evans, thank you very much.
I would make just one brief aside. I have spent many a happy day
in your town of Indianapolis. It is a sister town to Louisville, and
I was stationed in Indianapolis, and it is a lovely place.
Let me refer to your statement, the last page of your statement, the
third full paragraph :
From all of which, I think it is fair to conclude that systematic efforts to
secure and publicize the names of our intelligence operatives overseas is fully
comparable to publishing military information useful to the enemy.
And that that should be sanctioned.
You were here when your colleague in the fourth estate, Mr. Rowan,
was commenting on somewhat the same material. He would character-
ize it:
People who reveal such plots and the plotters wanted to impair this form
of intelligence activity, yet they hoped in most cases that this would help the
United States regain some of the respect it had lost in the world. 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, dismembered,
because they are illegal, immoral, and unethical.
I wonder, can these two positions be squared? You are both intel-
ligent people, you both write, you both observe, you are both well
trained, and yet it would appear that these are diametrically opposite
positions, philosophically as well as practically as to these bills.
Mr. Ev&xs. Well, let me just make a prefatory statement. I often
find myself in an adversary relationship with the Government on
matters of secrecy. In fact, I have pending a Freedom of Information
suit in Federal court on a matter that I think should be disclosed.
But I think that there are ways of going about forcing disclosure
of information that one thinks ought to be disclosed. What I fear
is the press setting itself up as the arbiter of what is or is not properly
classified information, which is, in essence, I think, the situation we
have here. The prevailing journalistic ethic, at least in certain cir-
cles, seems to be the you are entitled to publish anything you can steal,
and I think that is incorrect. I don't think we can have that, partic-
ularly in a category that so vitally affects our national security and
our defense as the catenorv that is before this committee.
And I might say that in some of your questions to previous wit-
nesses, it seems to me you summarized the situation very well, that is,
you said in essence, and this is just a paraphase, that we are confront-
ing a real world situation. We are not playing legalistic games here.
This stuff is happening. Our agents are being identified, and in two
cases we know of subsequent to the identification, one evidently true,
the other evidently false, the individual was killed. This is not some-
thing that has happened before a moot court. It is a real life, cold war
situation. We are fighting a war for survival, and I think it is the
responsibility of the Congress to attempt to grapple with that, and I
think that your bill is a very responsible and carefully drawn effort
to do that.
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Now, a couple of other points that were made by the previous wit-
nesses : for example, if-I am not a lawyer, so maybe I am not read-
ing the bill correctly, but as I read it, you have in here a provision
that in essence continues this for 5 years. That is, after 5 years, if the
person is no longer an operative agent or case officer, whatever the
case may be, then it sort of enters into the realm of historical infor-
mation and your prohibitions would not apply. Am I correct?
Mr. MAZZOLI. I believe ; yes.
Mr. Eves. That would seem to answer Mr. Rowan's concern about
what happened in the Trujillo assassination and all that, or at least
some part of it, I would think. So I don't think that is a real objec-
tion to your bill. I think you have addressed that very carefully.
Also, Mr. Rowan and the ACLU witnesses both talked about this
information as though it were simply public information that some-
one could get just from general public sources. Now again, if I read
your bill correctly, that is a defense; that, if in fact it is not classi-
fied information that the person is dealing with, then there is no crimi-
nal offense. And I hope-I have got here, as I am sure you gentlemen
have, a copy of the Covert Action Information Bulletin in which it
is very clearly indicated that they are not relying simply on public
sources. They talk in one of their identifications in Italy about a case
officer there in Rome, giving his name and other information, and the
last sentence on the page-this is page 32 of the December 1979-Janu-
ary 1980 issue of the CAIB-says "our source in Rome found him
at the Rome embassy as of July 1979." That is they are using sources
other than published information according to this statement.
So I think that Mr. Rowan's very commendable concern for the first
amendment didn't really address the substantive issues with which
you gentlemen have tried to grapple.
Mr. MAZZOLI. Thank you.
My time has expired.
The gentleman from Massachusetts?
Mr. BOLAND. I want to welcome you, Mr. Evans, too, and we ap-
preciate your presence here today.
You don't have any problem, then, with the section 501 (b), do you,
which would apply to any person who discloses information identify-
ing certain U.S. intelligence personnel? That doesn't bother you too
much?
Mr. EvANs. Well, when one is interpreting constitutional safe-
guards, there are always problems of interpretation, and what is licit
and what is not, so I would not say anything so sweeping as having
no problem. But I think it is a valid effort to grapple with a real
security difficulty, and one that on my reading of the first amendment,
which is quite different from that of some of the preceding witnesses,
is quite ligitimate. If one reads the history of the first amendment,
reads the debates in the first Congress in which that amendment was
debated, there is no suggestion whatsoever that totally ad lib injury
to the national interests of the United States could go unpunished.
And in fact, Jefferson said, even during the debate over Alien and
Sedition Acts, that libelous and seditious utterance should be pun-
ished, he just thought it should be punished by the States. The real
point of the first amendment was to protect the States with their
laws against the new Government that was being created.
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So I would not say I have no problem with it because there are
zones of ambiguity, but I would say that I believe it is a proper, and
in my layman's opinion, constitutional effort to grapple with the
difficulty before you.
Mr. BOLAND Thank you.
On page 3 of your statement, the next to the last paragraph, you
indicate, or you note with apparent approval that the committee bill
"imposes responsibility for willfully harmful disclosure following
publication."
The bill really doesn't make any distinction between disclosure that
could harm the agent and disclosures that don't. Do you think it
should?
Mr. EVANS. I am sorry, I didn't-when I said "willfully harmful,"
I did not mean to the agent as an individual but referred to the lan-
guage about impeding or impairing the intelligence function. I am
not sure-again, I would certainly have no objection to an effort to
write legislation that distinguished cases so that you said the harm-
ing the agent is one thing and harming the national security is an-
other. I think that is a matter of detail within the discretion of the
legislature.
My reference, however, was simply to the generic harm that you
are trying to prevent.
Mr. BOLAND. I asked Mr. Rowan, How do you get at the problem
of the Covert Action Information Bulletin naming names? He said
he doesn't think that you could get at it.
That's not your opinion, though, is it?
Mr. EVANs. No, sir. I think you should get at it, and I think this
bill is a responsible effort to do so.
Now, what was said by the gentleman from the ACLU and im-
plicitly said by Mr. Rowan was that the courts would not sustain
this, and I would not care to read my ouija board about what the
courts might or might not do, but I do think that, within the ambit
of responsibility of the Congress, you are meeting your constitutional
obligations. I think something should be done, and I think this bill
essentially is the thing that will do it.
Mr. BOLA: D. Thank you very much, Mr. Evans.
Mr. MAZZOLI. Thank you very much.
The gentleman from Florida, Mr. Young, is recognized for 5
minutes.
Mr. YOUNG. Mr. Chairman, thank you very much.
I would like to add my welcome to Mr. Evans-I have already ex-
pressed agreement with Chairman Boland-and say to him that I
appreciate very much his words of support of our effort to correct a
serious problem relative to the security of the United States.
It is a grave question, and frankly, we are going to need all the help
we can get if we are going to get the support we need to change that.
Talking about changing the law, you mentioned the murder of
Dan Mitrione, who was murdered by the terrorists after he was falsely
identified as a CIA agent. Do you believe that our legislation should
include a penalty for false identification when the life or the safety
of the individual might be threatened?
Mr. EVA\S. I would think that would be a reasonable inclusion. The
Mitrione case-he was, as I recall, from Richmond, Ind.-this oc-
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curred when I was editing the paper out there, and it struck very
hard at us because he was a fellow citizen of our State as well as of
our country. I think that there should be some effort to protect people
like Dan Mitrione and others who are serving our country and who
are exposed to jeopardy by this kind of activity on the part of those
who are trying to disrupt our foreign policy.
Mr. YOUNG. You had an interesting comment toward the end of
your statement relative to prior restraint, and I take from what you
have said that you are happy that there is no prior restraint provision
in this bill.
Mr. EvANs. Yes.
Mr. YOUNG. Would you expand on that?
Mr. EVANS. Well, the fundamental distinction that a journalist looks
at, and I think that the courts look at as well, although I am certainly
not expert on that, is the difference between being responsible for the
consequences of what you publish-that is, it is up to the paper to go
ahead and publish something, or the TV network or the radio or what-
ever the case may be. But if that injures somebody, under existing laws,
whether it is the law of libel or whatever the case may be, then you
know the consequences, you know the laws, and you are responsible for
taking the consequences legally of what you publish. There should not
be the right of publication without legal responsibility for the con-
sequences, which is what is sometimes argued by people who describe
themselves as civil libertarians. I totally disagree with that. I think
that kind of responsibility should be in the legal structure of our
country.
Prior restraint is a totally different matter in that the Government
steps in before you have ever published anything and tells you you
can't publish; that is really a much more scary kind of operation be-
cause then the thing can never see the light of day. and the public never
knows what it isn't seeing, and the Government has enormous discre-
tion with the prior restraint power to prevent debate. That is the
normal mode of censorship in authoritarian countries.
So in press circles, and in the Pentagon Papers case-and that was
really the way the Pentagon Papers case was decided, that there should
not be prior restraint, it came down to that-that distinction is con-
sidered very vital. And therefore I was happy to see that provision, and
in fact, I want to commend the committee on the care with which this
bill has been drafted. It is obvious that you have given a great deal of
thought to these nuances and the problems with which you have got to
grapple. It is not a meat ax approach at all. And that is one of the dis-
tinctions that struck me forcibly when I read this bill and the explana-
tion of it.
So that is the reason that I brought out that point in my prepared
statement.
Mr. YOUNG. Just to follow up on that, to be the devil's advocate for
just a moment, in the case of the revelation of the identity of the secu-
rity agent, intelligence agent, in effect we really would like to prevent
his exposure, and since there is no prior restraint, the guilty party may
pay with a fine or incarceration or something, but the damage has been
done.
Mr. EvANs. That is correct.
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Mr. YOUNG. I am one of those who always believes that especially in
the case of security, if you can prevent something you are a whole lot
better off than lust making someone pay for it afterwards.
Mr. EVANS. Right. Well, I don't deny that a prior restraint provi-
sion would be more effective than the provision you have here, but I
think that would, even on my somewhat different and perhaps eccentric
reading of the first amendment, that would run you into immediate
problems, I think. The way you have done it, it seems to me. conforms
with the historic laws of press accountability and libel and other appli-
cable statutes and common law that apply to the press.
So you do give up some degree of effectiveness or efficiency by not
having the injunctive power that is in this other bill.
Mr. YOUNG. And I would assume that you believe that the penalty
will act as a deterrent.
Mr. EVAN s. Well, take the law of libel, for example. The law of
libel is an after-the-fact accountability for what you publish. The law
of libel is not 100 percent effective. Libel is committed. But it is pretty
effective. Having been a newspaper editor, I can tell you that one is
very careful about making libelous statements because there is after-
the-fact accountability. You check things very carefully. So while it
isn't 100 percent effective, it is like any criminal law, basically, you
punish the act and not the preparation to commit the act.
Mr. YOUNG. Thank you very much, sir.
Thank you, Mr. Chairman.
Mr. MAZZOM. Thank you very much, Mr. Evans.
It could be that as we develop this bill in our markup, we may ask
you to submit some more statements with respect to some of the other
bills that are pending, and with respect maybe to the committee bill.
We certainly want to thank you today for your help, and I think if
anything, the gentleman has underlined for us the difficulty of our
task. When two very respected journalists can reach such diametrically
different positions on one bill, I would say that we really have our
work cut out for us. And if you know of a Solomon somewhere in that
600 Pennsylvania Avenue where you work, send him over, will you?
Mr. EVANS. I noted on the ACLU letterhead that they are also at 600
Pennsylvania Avenue.
Mr. MAZZOra. Is that right?
Mr. EVANS. And I would simply say that is where the similarity
stops.
Mr. MAZZOrr. Well, we thank you very much. It has been a very
enlightening day.
Mr. BOLAND. Thank you very much.
Mr. MAZZOLr. The subcommittee stands adjourned.
[Whereupon, at 4:10 p.m., the subcommittee recessed to reconvene
at 9 a.m., Thursday, January 31,1980.1
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U.S. HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
SUBCOMMITTEE ON LEGISLATION,
Washington, D.C.
The subcommittee met, pursuant to notice, at 9:05 a.m., in room.
H-405, the Capitol, the Honorable Romano L. Mazzoli presiding.
Present: Representatives Mazzoli (presiding), Boland (chairman
of the committee), McClory, and Ashbrook.
Also present : Michael J. O'Neil, chief counsel ; Patrick G. Long,
associate counsel; Bernard Raimo, Jr. and Ira H. Goldman, counsel;
G. Elizabeth Keyes and Herbert Romerstein, professional staff mem-
bers ; and Louise Dreuth, secretary.
Mr. MAZZOLI. The subcommittee will come to order, and. we are
honored to have today as our first witness on the second day of our
hearings, the gentleman from Florida, the Honorable Charles
Bennett.
Mr. Bennett has been a distinguished Member of the House of
Representatives for 30 years, and all of us on the panel have known
him in several of his pursuits in the House as chairman of our Ethics
Committee, as one of the leading experts in the Congress on seapower
and military matters generally; and I think we have all grown to
admire him and to appreciate his counsel.
Mr. Bennett is particularly interested in the subject before this
panel, and there is a bill, H.R. 3762, which is of his design, and he
was one of the first sponsors of bills to establish criminal penalties
for the unauthorized disclosures of names of intelligence agents.
And Charlie, we certainly welcome you to our committee. We look
forward to having your testimony, and when you conclude there may
be a few questions from the panel.
STATEMENT OF HON. CHARLES E. BENNETT, A REPRESENTATIVE
IN CONGRESS FROM THE THIRD CONGRESSIONAL DISTRICT OF
THE STATE OF FLORIDA
Mr. BENNETT. Thank you, Mr. Chairman.
I must say that I have watched your fine career here in Congress
and appreciated it very much and had great inspiration from it.
Mr. MAZZOLI. Thank you.
Mr. BENNETT. And I also want to congratulate the committee be-
cause I think you are doing .a good job, and a job that needs to be
done, and I think it is very important that it be done.
Mr. MAZZOLI. Thank you.
Mr. BENNETT. I used to be on the CIA Subcommittee of the House
Armed Services Committee in the days of Mr. Vinson. I think I am
probably the most senior man, I feel sure I am, that was on that type
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106
of activity in the early days, and I felt then that there should have
been a separate committee set up for this, and I think it is doing a
good job.
I appreciate the opportunity to appear before your distinguished
subcommittee to give testimony on the need for legislation to provide
criminal penalties for the unauthorized disclosure of information
identifying individuals engaged in foreign intelligence activities.
These types of disclosures have no redeeming social value and have
been made mainly by individuals who are openly undermining our
Nation's vital intelligence efforts. Leading the list is Philip Agee, a
former CIA employee who has published the names of some 1,200
alleged CIA personnel and whose most recent book, "Dirty Work,"
purports to identify over 700 past and current CIA employees in
Europe alone. That these disclosures have been made with relative
impunity and commercial success for the writer is a travesty and
serves no purpose but to encourage others in the continuation and ex-
pansion of such destructive activity against the best interests of our
country.
Such disclosures not only place in jeopardy the lives and safety
of this Government's intelligence officers and their families, as well as
the lives and safety of those who cooperate with the United States in
fulfilling its intelligence mission, but also have an adverse effect on the
foreign intelligence and counterintelligence efforts of the United
States. The fact that the United States to date has not been able to
fashion a legal remedy to put a stop to such disclosures has severely
damaged this Nation's credibility in its relationship with essential
foreign sources of intelligence. The problem can be simply stated as
follows: Current law is insufficient to cover the type of conduct that
must be protected against. Congress has been unable to legislate a
remedy. The disclosures continue to be made. The net result is a dam-
aged intelligence capability and reduced national security.
A remedy is needed now. It is urgent that the 96th Congress clearly
and compellingly demonstrate that the unauthorized revelation of the
identities of our' intelligence officers and those allied in our efforts will
no longer be tolerated. The bill I have introduced provides the needed
remedy.
Subsection (a) of H.R. 3762 would make it a criminal offense for any
present or former officer or employee of the United States or member
of the military to knowingly disclose to anyone not authorized to
receive it, information which identifies anyone not publicly associated
with the U.S. Government's foreign intelligence or counterintelligence
efforts, and whose association therewith is classified.
Subsection (b) would criminalize the same activity as described
above for subsection (a), but is focused on those who, even though not
present or former U.S. Government officers or employees or military
personnel, have or have had a position vis-a-vis the U.S. Government
which granted them access to identifying information. The U.S. Gov-
ernment contractor or his employee are an example of the subsection
(b) potential defendant.
Subsection (c), in turn, would make it a criminal offense for any-
one not described in subsection (a) or (b) to knowingly disclose to
anyone not authorized to receive it information which identifies any-
one not publicly associated with the U.S. Government's foreign intelli-
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107
gence or counterintelligence efforts, and whose association therewith
is classified, where, as a result of the disclosure, the identified individ-
ual's safety or well-being is prejudiced, or where such disclosure dam-
ages the foreign intelligence or counterintelligence efforts of the
United States.
Furthermore, the bill, in subsection (d), would make it an offense
to falsely assert that an individual is engaged in intelligence activities
where this prejudices the individual's safety or adversely affects the
foreign affairs functions of the United States. The individual identi-
fied as being associated with U.S. intelligence efforts, whether correctly
or incorrectly, may be nonetheless prejudiced and his or her future
effectiveness called into question, as may be the role he or she plays in
the foreign affairs function of the U.S. Government.
In addition, my bill provides injunctive relief and makes provision
for an in camera proceeding so that the court in camera may determine
whether the information about to be disclosed is that for which a crimi-
nal penalty may be imposed. The bill does not purport to criminalize
disclosures made pursuant to a Federal court order or to either of the
Intelligence Oversight Committees or disclosures otherwise authorized
by Executive order or by directive of the head of any U.S. department
or agency engaged in foreign intelligence or counterintelligence
activities.
On the other hand, the bill would allow prosecutions of accomplices
or conspirators, including, if guilty, members of the news media in
those cases of prosecution under subsection (c). The courts have con-
sistently recognized that first amendment freedom of speech does not
prevent legislation such as I propose. Our distinguished forefathers
who drafted the first amendment clearly never intended it to be a shield
behind which those who would wish to undermine the intelligence
efforts of the United States might stand with impunity.
Mr. Chairman, I urge my colleagues to take swift and sure action
in the 96th Congress to pass legislation to accomplish the purposes I
have outlined. I am optimistic that the 96th Congress will be remem-
bered as one that dared to speak out against those who are currently
working to destroy our intelligence agencies.
Mr. Chairman, as I drive in from Virginia to my office every day,
I pass the statue of Nathan Hale and see his words under there. I have
forgotten the exact words, but "I regret that I have but one life to give
for my country" is the essence of it, and he has always been a hero of
my life, that young man who gave his life as a spy for the revolution-
ary forces in our country that established our country. I think it is a
very noble calling, and I myself have been somewhat involved in it
during World War II, when I was in the military services. And, I
served a long, long time on the CIA Committee of the Armed Services
Committee.
I feel that the legislation which the committee has introduced and
the legislation which I have introduced is the most important piece
of legislation with regard to our national security other than the actual
procurement of weapons, that is before the Congress today.
I felt this so deeply that, I hired, as I have in the past, a special per-
son to come work in my office the latter part of the last session of Con-
gress and the beginning of this session of Congress to devote his efforts
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to try to get a perfected bill. And I did my best to get a good bill,
and I have no pride of authorship in it. I want a bill to be passed. The
committee bill suits me just fine except there are a few things that I
think you should think about as adding into the bill, because I don't
think they should be overlooked. The in camera proceedings is a good
example of that.
I hope very much that some bill can come out, and anything I can
do to help you in it, I will do my very best.
Mr. MAZZOLI. Well, let me thank the gentleman from Florida for his
very interesting and very thoughtful statement.
Let me just make a couple of statements. I think the gentleman from
Florida would have been delighted to hear the statement made to this
committee yesterday by Jim Wright, the majority leader of the House
of Representatives, in which the majority leader gave strong support
to this bill and catapulted it to the top of the heap among the priority
items for the second session. So I think that there is a clear and demon-
strated support within the Democratic leadership structure, and he
was speaking also for the White House in saying that that will be one
of the priority items.
I have just a couple of brief comments. Perhaps the gentleman could
help me. In your bill you deal with foreign intelligence as well as
counterintelligence, so would it be your feeling that members of the
FBI and other agencies of the Federal Government that involve or
engage in counterintelligence be given the same protections, and that
is that their names, if they are under cover, if they are classified, would
not be divulged, or there would be a criminal sanction for the devulg-
ing of that information?
Mr. BEN NETT. I would think that would be a good intellectual de-
cision, but I have some apprehension about giving opponents of this
legislation an opportunity to raise smokescreens where there isn't the
same degree of problem in each case. In other words, the problem
really is mostly in foreign espionage and things of that type, and
therefore I don't know that I would recommend that expansion as a
matter of tactics. I doubt it would be wise to add something that some-
body might use to destroy the bill. Nobody can really refute the idea
that we have to take care of the CIA and the activities they are doing,
and if you are adding something to it, although I myself would favor
the addition, you just run the risk that somebody will think up some
reason why that shouldn't be done, and you might kill the whole bill,
and I think that would be very sad because I don't think the same de-
gree of problem exists there.
Mr. MAZZOLI. Yesterday the committee had some very lively discus-
sions all day long with proponents and opponents of the bill. I think it
is fair to say that there is less objection, though there is some, but there
is less objection to a criminal sanction for the disclosure of names of
agents by people who are in Government or were in Government and
came upon that information by reason of their official position. There
is less concert and more opposition to a provision of the bill which
would sanction the disclosure of names which have been gleaned
through the patient sifting of records, and the putting of two to two
and coming up with four.
And I wonder if the gentleman from Florida might just give me
some observations on whether he feels there is a difference in the two
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situations, and if so, whether there should be some difference of
approach in our bill.
Mr. BENNETT. Well, my reaction is there shouldn't be a difference
of approach. I have also been a newspaperman. I wrote for AP and
UPI when I was in college and was a college editor of the national
champions college newspaper in 1932 and have written four or five
books, so I have some background in writing. I have never felt that
people that wrote were any less patriotic or any more anxious to have
exceptions to their patriotism established by law than anybody else.
You may find a few here and there that make a religion out of the first
amendment, but it is not religion, it doesn't say any more than what it
says, and it doesn't prohibit a law in this area, and I would think that
most loyal Americans would support a bill which also protected us
against that sort of thing.
Mr. MAZZOLI. I thank the gentleman. The Chair's time has expired.
The gentleman from Massachusetts is recognized.
Mr. BoLAND. Well, I want to congratulate the distinguished gentle-
man from Florida for his appearance here today. I know he has been
closely associated with this problem for some time, and in your capac-
ity as-what are you on, Armed Services now? You must be No. 2.
Mr. BENNETT. I'm No. 2; yes.
Mr. BOLAND. No. 2 on Armed Services,,and that service you have had
there, of course, clearly has given you information over the years you
have spent on that committee, particularly in the area of intelligence.
I am sure that you have been briefed for many, many years on the in-
telligence activity not alone of the CIA, but the Defense Intelligence
Agency and what other agencies appear before your committee, and
consequently, you are conscious of the necessity for some action in this
area.
Your bill, as you have indicated, is much broader than the bill that
the committee has filed, but you indicate that you support the commit-
tee bill. There are some problems with it that have been raised by
witnesses who appeared here yesterday. You indicate that you think
that even your bill would be constitutional. There were some questions
raised yesterday of whether or not ours, our being the committee bill,
is constitutional, and since ours is more narrowly crafted, that gives
us pause to reflect. But in any event, we will meet that problem.
Some have indicated there is no necessity at all for this kind of
legislation and that it is perfectly all right to identify those who are
employed by the intelligence agencies. But those of its who sit here,
and I think the vast majority of the Members of Congress, recognize
the problem, too, and particularly those who have had some association
with them as you have had.
So we appreciate your comments on this matter, and I might say
that we will do our very best to craft a bill that meets the problem, and
that meets it in a manner that criminalizes some of the actions that
have been going on and some of the problems that have been associated
with it.
You have been very helpful to this committee, and I am sure that
you and your staff will be coming to a judgment on that, and I only
want to offer my congratulations to you for coming here today, and
also for the very significant part you played in the legislative process.
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Mr. BENNETT. Thank you very much. I would be glad to cooperate
in any way I can with the committee. I think it is doing an excellent
job.
Mr. MAZzOLI. 'Thank you.
The gentleman's time has expired.
The gentleman from Illinois, Mr. McClory, is recognized for 5
minutes.
Mr. MCCLORY. Thank you, Mr. Chairman.
First, of all, I want to express my appreciation for your assurance
that the majority leader is setting the agenda for the House of Repre-
sentatives, and that this has a top priority status. I have been wonder-
ing who was in charge of setting the agenda. I just thought there was
no one doing it. But I am pleased indeed to know.
Mr. MAZZOLT. Since the gentleman has commented, may I make this
statement?
Mr. MCCLORY. I vield briefly.
Mr. MAZZOLI. And I won't subtract the time, but I must say that the
gentleman ,yesterday appeared to me to be perhaps representing the
loyal opposition in many of his statements, so I think maybe we sort
of cancel out one another.
Mr. BOLAND. May I just answer the gentleman myself? I suppose
it is very difficult for the majority leader and the leadership on our
side to really set an agenda unless they get something to put the agenda
on. So hopefully in the next couple of months we will give them a
smorgasbord and they can make their choice and establish an agenda.
Mr. MCCLORY. Well. we are all glad to know who is in charge, and
we will deal with the issues as they come. But I want to express my
appreciation that this is going to have top priority status. And also,
I want to express a warm welcome to the gentleman from Florida, Mr.
Bennett, and to express appreciation for his support of the principle
involved in this legislation. I don't have any disagreement with
any of the testimony of the positions that have been stated.
Several of the questions I had in mind have already been asked by
the chairman.
Your bill in section 800(f) states that no one can be prosecuted as
an accomplice or accessory to someone violating the provisions of the
measure which would provide for these punishments for revealing the
identity of agents. nor can a conspiracy prosecution be made.
Mr. BENNETT. Well, it says no person other than a person described
in subsection (a) and (b) shall be subject to prosecution as an accom-
plice or accessory within the meaning of the offenses provided. I
wanted to find definitely who was to be blamed and nobody else would
be.
Mr. MCCLORY. Well, what you want to do is get at the person who
makes the disclosure, who identifies the person, and you don't want
to have that person have an out, for instance, by saying, well, I got
the information from someone else.
Mr. BENNETT. Right.
Mr. MCCLORY. If there is the intent present that it would impair
and impede our intelligence capabilities as a result of revealing the
identity of the agents or of identifyinz sources for securing intelli-
gence, that person should be subject to these criminal, these severe
penalties.
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Mr. BENNETT. Right, yes, sir.
Mr. MCCLORY. Well, I can't help but agree with you, and I envision
you and myself as liberal Members of the House of Representatives,
and I have been very impressed recently by a liberal position an-
nounced most eloquently by Senator Pat Moynihan of New York who
takes the position that if we don't protect ourselves-we liberals
who enjoy these vast freedoms that are guaranteed to us under the
Constitution against the attacks of these secret, aggressive efforts of
the KGB and our other adversaries-we are in danger of losing the
very things that we cherish so much.
Mr. BENNETT. Absolutely.
Mr. McCLORY. You subscribe to that point of view, don't you?
Mr. BENNETT. I certainly do, I certainly do.
Mr. McCLORY. So that this would be one method of protecting us
against those secret, undercover attacks of our enemies by having our
own covert agents identified and named.
Mr. BENNETT. Yes. I think that is very important. I think your
committee has done a good job in putting in the bill that you have.
Mr. MCCLORY. Well, I thank you very much for your major contri-
bution to our work.
Mr. BENNETT. Thank you, Mr. McClory.
Mr. MAzzom. The gentleman's time has expired.
We very much appreciate the distinguished gentleman from
Florida's appearance today and wish him well.
Mr. BENNETT. Thank you.
Mr. MAzzoLI. The Chair would ask our next witness, to come forward
Mr. William Schaap. Mr. Schaap is a coeditor of the CovertAction
Information Bulletin, a publication about which we have talked much
yesterday and of course today.
Mr. Scliaap is a graduate of Cornell University and the University
of Chicago Law School, and in addition to his connection with the
CovertAction Information Bulletin, Mr. Schaap is editor of the Mili-
tary Law Reporter, and was coeditor of the "Dirty Work 2: The CIA
in Africa." Mr. Schaap, you are welcome, and would you please in-
troduce for the record your colleagues so that the reporter can have
that information.
STATEMENT OF WILLIAM H. SCHAAP, COEDITOR, COVERTACTION
INFORMATION BULLETIN; ACCOMPANIED BY ELLEN RAY, CO-
EDITOR, COVERTACTION INFORMATION BULLETIN; AND LOUIS
WOLF, COEDITOR, COVERTACTION INFORMATION BULLETIN
Mr. SCHAAP. Yes; I will. Thank you, sir.
On my left is Ms. Ellen Ray, and on my right is Mr. Louis Wolf.
The three of us comprise the staff of the Covert Action Information
Bulletin.
Mr. Chairman and members of the committee, the CovertAction
Information Bulletin is pleased to have this opportunity to present
its views to you.
Let me mention one point before I continue with my prepared state-
ment. We were somewhat concerned yesterday with the references to
so-called journalists, and to persons purporting to be journalists. I
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just want to note for the record that Mr. Wolf has been an accredited
journalist for 14 years. Ms. Ray has been a documentary film maker
for 12 years, and a writer for the past several years, and I have been
a full-time professional writer for more than 4 years, on top of some
15 years practice of law. Philip Agee, who has been mentioned before
the committee, incidentally, and who left the CIA some 10 years ago,
has also been a professional journalist since that time.
Finally on that subject, let me clear up some other obvious miscon-
ceptions before I proceed. Mr. Agee is neither a director, an officer,
nor an editor of the CovertAction Information Bulletin. He does con-
tribute articles to it, although, as one could ascertain from reading
them, those articles do not name any names. You might all be in-
terested to know that Mr. Agee has not, to our knowledge, named any
names in more than 3 years, and that applies as well to both "Dirty
Work" and "Dirty Work 2," the two books which we sitting before you
have coedited.
Because so much of the discussion which has led to the introduction
of H.R. 5615 suggests that it is aimed expressly at us, we would like
to touch briefly on our philosophy and on what, in fact, we do. Al-
though there may be and surely is a profound difference between our
view of appropriate intelligence work and that which has led to the
itroduction of a, bill such as this, we do suggest that our position
has been misrepresented.
Our publication, as you are aware, is devoted to exposing what we
view as the abuses of the Western intelligence agencies, primarily, al-
though not exclusively, the CIA; and to exposing the people respon-
sible for those abuses. We believe that our Nation's intelligence ac-
tivities should be restricted to the gathering of intelligence in the
strictest sense. We believe it is wrong, and in the long run extremely
detrimental to our democracy, for this country to interfere covertly in
the affairs of other countries. We believe that other countries should
choose the governments and systems which the people of those coun-
tries want for themselves. And we also believe that when our Govern-
ment chooses to support another government and to give it aid, it
should do so openly and publicly.
In this connection, we believe that the CIA, as it is at present, is
probably beyond reform. We believe that it should be completely re-
vamped or abolished altogether and another new agency created,
strictly limited to the gathering of intelligence.
In sum, we believe that the covert manipulation for which the CIA
has become notorious, undercover officers and agents corrupting and
bribing officials, buying elections, secretly controlling various media,
employing economic and political sabatoge, all the way to bombings
and assassinations, that this manipulation does not strengthen de-
mocracy here in the United States, but in fact, weakens it.
Indeed, over the past 30 years or so, we would say that the CIA
has generated more hatred of the U.S. Government around the world
than any other single institution. The situation today in Iran, for
example, is in large part, we believe, because of the CIA, not in spite
of the CIA. If it is a reasonable goal for a nation to try to live in
harmony with the rest of the world, the CIA, we submit, is constantly
frustrating that goal for this country.
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Now, before commenting on the specifics of the bill, we would like
to try to dispel two myths which affect not so much our actual work
as other people's perceptions of it, myths which have clearly affected
the deliberations of this committee.
First of all, we believe there is the myth that exposure subjects a
CIA officer to a serious threat of physical harm or even death. This
is objectively false. Of the more than 1,000 CIA people who have
been named over the past 5 or 6 years by many people and many pub-
lications in many countries, not one has been physically harmed on
account of it. Indeed, we believe they are rarely transferred ahead of
schedule. We won't belabor the point here, but you should 'be aware,
as we know the CIA is, that Richard Welch, the CIA station chief
in Athens, was murdered by people who were originally stalking his
predecessor, not him, and that his death had nothing to do with having
been named many times in various countries over the years as a 'CIA
officer.
In the one instance where physical harm might have been an issue,
the taking of hostages in Iran, we have consistently, and against
considerable pressure from the media, refused to comment on the
identifications of anyone involved.
I might say that in that connection, we have received calls from
virtually every network and every major newspaper in the United
States asking us if we know the names of CIA people being held hos-
tage, and if so, if we would tell them. We have refused to comment
on it.
Mr. BOLAND. Do you know?
Mr. SCHAAP. I don't think it would be appropriate to answer that
question publicly, sir. I would answer it privately. We have taken
the position that it would be wrong for us even to say whether or
not we know whether or not there are people because it might be
interpreted by someone as saying that we do know there are some,
but we won't say who. I would be happy to inform the chairman of
the knowledge that we have in closed session, sir.
The second myth is that we and others doing similar work have
some special access to secret classified information, that it comes from
some inside source. This is simply not true. None of us ever worked
for the Government. The deductions we draw, the journalistic con-
clusions we come to, that certain persons are in fact intelligence offi-
cers, come from dozens of public sources, from research methods well
known and well publicized. Similar deductions and conclusions are
made every day by investigative journalists in this country and around
the world. The identities of the people we and others have exposed
are usually quite well known to the host country governments, and we
are sure they are already known to the other major intelligence serv-
ices. Indeed, as this week's Newsweek points out, CIA officials admit
"the names aren't news to hostile governments." These undercover
people are usually not known, however, to the people of the host
country, and to the people of this country, even though their con-
duct is generally totally and completely illegal in the host country
and often illegal at home.
Finally, I would like to outline our specific arguments regarding
H.R. 5615. We believe that the entire bill represents a serious threat
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to the backbone of democracy, particularly freedom of the press. The
bill is not, in reality, aimed merely at our publication or others like
it; it is aimed at journalists generally, and at their sources, at out-
side investigators and inside whistleblowers. For one thing, the bill
is not even limited to exclude exposures of patently illegal activity.
Nor is it limited to the exposure of identities learned because of access
to classified information, or even to identities at all. The bill censors
any information that identifies an undercover officer or agent. Yet
it is virtually impossible to expose an improper or unlawful or im-
moral operation or activity in government without disclosing infor-
mation from which one might ascertain the identity of the persons
responsible for such an activity. Whistleblowers have traditionally
been this country's greatest weapon against official corruption and
immorality. This bill, we believe, would wipe out whistleblowing in
the intelligence field where it may be most necessary.
Critically, from a constitutional point of view, the bill is not lim-
ited to information which is in fact secret and classified. There was
considerable testimony yesterday before the committee about Judge
Learned Hand's opinion in United States v. Heine, which I would
again recommend that the committee carefully read. It deals with the
question of publishing information which is in fact already public.
This appears to us to be the first time that something really approach-
ing an Official Secrets Act has been so seriously proposed in the
United States. We believe that if truly secret and classified infor-
mation is exposed, and if it is truly damaging to the national secu-
rity, then the existing espionage laws are sufficient to protect the
interests of the country.
Lastly, the idea of specific intent required in the second part of the
bill presents another great difficulty. The bill only criminalizes jour-
nalism, it appears, if the writer's intent is "to impair or impede the
foreign intelligence activities of the United States." But what if the
intent is to expose illegality or to engender greater morality in gov-
ernment? The specific i_ltent requirement does not minimize the un-
constitutionality of the section. What one person sees as reform an-
other will see as impairment. Indeed, as I said earlier, we believe that
the best thing for the security and well being of the United States
would be to limit severely, if not to abolish, the CIA. Our intent both
in exposing the abuses of the intelligence agencies and in exposing
the people responsible for those abuses is to increase the moral force
of this Nation, not to lessen it.
That many people would disagree with us, and I might add, disagree
vehemently with us, is obviously clear. That the CIA would assume
our intent is simply to impair or impede their foreign intelligence
activities also seems likely. Patriotism, we would suggest, is to some
extent in the eye of the beholder. But it is very distressing that such
disagreements could become the substance of criminal prosecutions
under a bill such as this.
Our society is supposedly dedicated to openness, to accountability,
to continuing reform. Investigative iournalists and their sources rep-
resent one of the key elements of that tradition. The danger that the
hysteria of the moment could subvert that tradition is great. The
current move to unleash the CIA, of which this bill is just one part,
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would be, we believe, completely counterproductive. Efforts to exempt
the CIA from the Freedom of Information Act and to repeal the
Hughes-Ryan amendment are equally dangerous.
To conclude, we hope that you understand our motivations. We
hope even more that you recognize the effect this bill would have, not
on us, but on freedom of the press in this country and on government
morality.
If you have any questions, we would be glad to try to answer them.
Mr. MAZZOLL Thank you very much, Mr. Schaap. We have appreci-
ated your being here, and your statement is certainly quite thought
provoking.
I guess I have to confess, to be candid with you, I just really have a
hard time, as much of a projection as I could make, to really half-way
agree with you. I can see where you would be motivated to disclose
the outrages and overreachings of an intelligence agency, but I just
really, I just can't quite handle the approach that you and your people
take.
I also recognize that it is important to have a dialog in America. The
b:'auty of this Nation is we can have people who so very diametrically
disagree with one another and can still be in the same room together
without polemics going back and forth. But really, I have to say in
candor that your view, while carefully reached and zealously held, is,
I am sure, a very, very small minority, not lust in respect to Capitol
Hill, but I think through the country, and I think legitimately a small
part of that.
I would ask you a question here. On page 2 of your statement you
say that you believe the Nation's intelligence activities should be
restricted to the gathering of intelligence in its strictest sense.
Accepting that that should be the mission of our intelligence agen-
cies and anything short of that or beyond that is wrong, does not your
activity impede and in many cases interrupt and destroy that intelli-
gence gathering mission?
Mr. SCHAAP. Well, I think that the answer depends on understand-
ing our philosophy about the CIA, and again, I appreciate what you
said. We have no delusions that we have come here to change the
minds of the members of the committee. We have come here to try to
explain where we are coming from, and of course, on another level,
to make clear that we do not use secret documents and we do not
have any inside line to the CIA, that we work from public research.
But our philosophy, with which you may well disagree, is that the
CIA is in fact an evil instrumentality I guess I would put it, that it is
beyond reform because of a tradition which has built up over many
years of doing the activities which have been exposed in the press
over the past number of years. It is our belief that those activities
continue to this very moment. It is certainly my belief that there are
members of this committee who would quite sincerely take the position
that it is a good thing that they do. We sincerely take the position that
it is a very bad thing that they do.
We think, therefore, that they have to start over again, either with
a completely revamped agency or with a new agency.
Mr. MAZZOLI. I appreciate that, but of course, that is not going to
happen, and I wonder if the effort, though, at exposing the wrong-
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doing doesn't really destroy their mission as you see it, which is to
gather intelligence.
It certainly doesn't make it any better or easier; does it?
Mr. SCHAAP. No; I don't think it makes it any easier. Our problem
of course, is that the manipulation that we see, or the dirty tricks,
as they are called, we feel is so intertwined. It is our understanding-
and we are certainly not experts-that the vast majority of intelli-
gence gathering, up to 95 percent at least of it, is done through micro-
wave interception by the National Security Agency, is done through
electronic surveillance, and is done through clipping of newspapers.
There are I don't know how many thousands of employees at the CIA
headquarters in Virginia analyzing documents, reading books, clip-
ping newspapers. We have no problems with that kind of intelligence
analysis whatsoever.
Mr. MAZZOLI. Mr. Schaap, on page 4 of your statement, in the second
paragraph, you talk about the bill censoring information. I would
respectfully disagree. As I understand our bill, there is no prior re-
straint. There is a sanction for the disclosure of information, but I
don't see any censorship, and I wonder if you believe that the bill does
censor anything.
Mr. SCHAAP. I was not technically referring to the concept of prior
restraint at all; no. I meant the restraint that would be imposed by
criminal sanctions.
Mr. MAZZOLI. Thank you very much.
One last question, and very briefly, my time has almost expired.
Don't you think, or do you think that you could accomplish your mis-
sion, which you, again, have reached very thoughtfully, to reform the
Intelligence Agency without naming names?
Mr. SCHAAP. Possibly. Our feeling at this point, after working in
this area for several years, is that we cannot, partly because of the
value that it has in many instances in explaining operations. The dis-
cussion most relevant, I guess, was yesterday's comments about the
King Hussein story. An editor wouldn't even have put it in the paper
much less page 1 if he didn't say who it was.
It is possible that in some instances it wouldn't make any difference.
We don't, for example, name low-ranking telecommunications oper-
ators, drivers of cars, the person that sweeps up the hallway, or any-
thing like that. We do feel strongly, though, that you cannot separate
the responsibility for the actions from the individual responsibility
of the people who do it. If you accept our premise-I know that you
don't-but if you accept our premise that the CIA station in a foreign
country is manipulating, is paying off politicians, is buying elections,
is doing whatever, putting aside assassinations and so on, if you accept
that that manipulation is taking place, the individuals involved are
responsible. They certainly know what they are doing.
We would have a disagreement about whether what they are doing
is right or wrong, but certainly not that they know what they are
doing.
Mr. MAZZOtr. Thank you. My time has expired.
It is an interesting answer. I appreciate it.
The gentleman from Massachusetts, our chairman.
Mr. BOLAND. Thank you, Mr. Chairman.
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I want to welcome Mr. Schaap and Mr. Wolf and Ms. Ray for their
appearance here this morning. It is nice to get both sides of the argu-
ment, and I think you present it very well. As a matter of fact, you
even present your Covert Action Information Bulletin very well. It
is a slick publication, I mean that the format is and the paper you use
make it slick, and the information in the bulletin is slick information,
too.
Mr. SCHAAP. We appreciate the comment. We might point out that
the CIA as well as Congress were among our earliest subscribers.
Mr. BOLAND. What is your circulation, about 2,000?
Mr. SCHAAP. No, it is a little bit more than that. It is probably about
4,000.
Mr. BOLAND. How many do you actually sell in the bookstores around
the area?
Mr. SCHAAP. More than by the mail subscriptions. I would say the
mail subscription list, the bulk mail subscription list is roughly 1,000,
and the bookstores vary between 3,000 and 4,000. We never know exact-
ly because of returns.
Mr. BOLAND. All right. Well, your circulation is a clear indication
that there is a minority, albeit a small one, but there is a minority of
people in this Nation that share the same concern that you do, or that
the three of you do.
You are the only three that actually write for it, too, are you ?
Mr. SCHAAP. No, we have outside journalists who write articles for
it on occasion. We do all the editorial work, and although I appreciate
your comment about slickness, you should understand that the layout
is generally done by the three of us staying up until 4 in the morning
the night before we are supposed to get it to the printer, by using our
hand waxer and slapping it down on some sheets of paper. Our printer
does do a nice job.
But we edit it entirely ourselves. We have more and more asked for
outside journalists to write for us, and in fact have had some people
fairly well known in their fields write articles for us.
Mr. BOLAND. All right, just a moment ago, Mr. Schaap, you referred
to the CIA as an evil instrumentality. Is that the description you want
to apply to it today?
Mr. SCHAAP. Well, to the extent that the manipulation we are talk-
ing about still takes place, yes. That is the philosophical under
Mr. BOLAND. What do you know about their manipulations? Give
me one example of some manipulation that now takes place that makes
it an evil instrumentality.
Mr. SCHAAP. If I knew something that was taking place right now,
it would be in this issue of the Bulletin, sir. I can only tell you about
what was taking place. I don't know what the most recent exposure
of a particular incident might have been.
Our problem is that there is no past experience to give us reason
to believe when the Agency makes the comment, in whatever words
they might make, "we don't do that anymore," and I say that because
over the years, every time that has been said, and on several occasions
to this Congress by officials of the Agency, under oath, it has turned
out to be untrue.
By no means do I mean that everything that is going on rises to the
level of the intervention in Chile or the overthrow of Mossadegh in
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Iran, or to Guatemala, or so on. By no means do I mean it that every-
thing or even a majority rises to that level. I simply feel to a moral
certainty that it is going on now. I am sure there are politicians being
paid off right now by our Government through the CIA. I am sure
there are elections being bought right now by our CIA. We will find
out about them a year from now.
Mr. BOLAND. You state that one of the aims of the CovertAction
Information Bulletin and of those who are associated with it is to
stop illegal or immoral activity. Is that a fair statement of one of your
beliefs?
Mr. SCHAAP. Yes.
Mr. BOLAND. Is the issuance of fake passports illegal, in your judg-
ment?
Mr. SCHAAP. Is the issuance of fake
Mr. BoLAND. Fake passports.
Mr. SCHAAP. I would imagine in every country in the world it is
illegal.
Mr. BoLAND. Would you be critical of the-if it were so, would you
be critical of the Government of Canada for issuing fake passports
to the Americans who were secreted out of Iran?
How would you judge that particular action?
Mr. SCHAAP. I don't think I would be critical of it. I have no prob-
lem with securing the release of the hostages. I very much wish we
had no hostages in Iran.
Mr. BoLAND. Well, I am talking about the Americans who were
secreted in the Canadian Embassy or the Canadian residence there; and
whether or not the Canadian Government issued fake passports. I
have no knowledge of that, but if the Canadian Government did,
would you be critical of the Canadian Government for engaging in an
illegal activity?
Mr. SCHAAP. Not that illegal activity, no. I am not critical that they
assisted in helping these people to escape, nor am I critical that, ac-
cording to the newspapers, the CIA assisted in forging some visa
stamps on the passports in order to assist them to escape. I am some-
what critical of the mass media that published that fact. The Wash-
ington Post has shown less restraint than we have in this area, which
I find somewhat surprising. We would not have published that fact
which apparently has been so inflammatory to the Iranian authorities.
Mr. BOLAND. Now, you also say that your intent is to expose abuses,
and that H.R. 5615 would criminalize whistleblowing.
What abuses does your naming of names section reveal? What abuses
are surfaced or what come to the surface as a result of your naming
names in the bulletin?
Mr. SCHAAP. Well, I would imagine that that information, in par-
ticular instances, especially diplomatic cover officials in embassies,
would only come to light thereafter and would be recognized by the
citizens of the host country. In most cases where we are simply re-
porting on a case officer in a country, we don't know precisely what
he is doing. Again, as I said, you have to understand, our philosophy
would posit that a large portion of what he is doing is wrong, and it
is bad for this country that he is doing it. It generally comes out after-
ward what the specific things might be.
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Mr. MAZZOLI. I'm sorry, the gentleman's time has expired.
Mr. BOLAND. Thank you.
Mr. MAZZOLI. The gentleman from Illinois is recognized.
Mr. McCLOxr. Thank you, Mr. Chairman.
My principal observation is that while the testimony and the activ-
ity of this publication appears to be directed at abuses of the CIA
and other intelligence agencies, what we are dealing with ourselves
are what we regard as abuses of first amendment rights which we feel
threaten the destruction and loss of the first amendment privileges
which we have. I have made mention of it here several times about a
change in direction insofar as the liberal community appears to-the
position they appear to be taking as a result of the tremendous threats
of the KGB and other covert operations of adversary nations.
Now, I am unaware, you can tell me perhaps, that you made mention
of microwave and electronic interceptions and so on, and it is virtually
public knowledge that the Soviet Union engages in all kinds of inter-
ference with our private communications. And, the charge has been
made, and apparently a valid charge, that in Geneva, Switzerland, the
KGB is operating with literally thousands of covert agents. In the
U.N. in New York City, in this very country, and in its various em-
bassies and through its visitor programs and so on, they have
large scale covert operations that are taking place.
What, if anything, have you done to try to expose any of the covert
operations of any persons that I would regard as our enemies, those
that are trying to destroy these first amendment rights that you pur-
port to be championing ?
Mr. SCHAAP. Well, let me say that I don't know very much about
the KGB. You should understand that if they are doing the same
things that we say we don't like the CIA doing, we don't like their
doing it either.
Mr. MOCLORY. Well, you announced the publication of your Covert-
Action Information Bulletin in Havana, Cuba, in July 1979. You must
have some contacts and some relations with Soviet satellite nations to
be involved in a business activity there, haven't you?
Mr. SCHAAP. There are two inaccuracies in that. We didn't start the
magazine in Havana, Cuba. It started approximately a month before
the 11th World Youth Festival which took place in Havana and at
which we attended. That was the event that was going on at that time
and it happened to be scheduled in Havana. We were invited by the
International Committee and we were there.
I have no contact with the KGB, if that is what you are implying.
We really don't know much about it. As I said, we are not in favor of
anybody doing these kinds of things. The problem is that
Mr. MCCLORY. Have you ever exposed yourself or named any for-
eign covert agents?
Mr. SCHAAP. We have some, on occasion, some Western, some French
or British, but that has mostly been by other people writing for us.
The point that I am making only is that we are Americans, we
know about our Government, we are trying very hard, in our opinion,
to make our Government a better government. I certainly hope that
there are Russians, citizens of the Soviet Union trying very hard to
make their Government a better government. I hope there are people
like that everywhere.
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Mr. MCCLORY. And to justify your publication and your position
you suggest that people in all nations should have the right to choose
the government they want, and yet it seems to me that what you are
contributing to is denying the opportunity of people to have the kind
of government they want. In other words, we have a growth and
expansion of totalitarian governments as a result largely of secret
activities that they carry on to undermine and suppress the interests
of their own people and to preclude our opportunities to communicate
these principles of freedom, these opportunities for self-expression
or self-determination in those very countries.
Mr. WoLF. Mr. McClory, may I say here that I think it is impor-
tant to remember that for the United States to stand as a beacon
before the world, it must demonstrate this, and it must carry out
its principles in fact, in the way
Mr. MCCLORY. You don't think we are?
Mr. WOLF. Well, I think that the CIA stands for quite the opposite
of what I am talking about here.
Mr. MCCLORY. Well, do you think that if the CIA or any agencies,
covert or overt, support the opportunities for people to vote in free
elections, do you think that that is contrary to our interests, and can
you tell me any instance where any of our intelligence agencies have
tried to suppress that opportunity?
Mr. SCHAAP. The most obvious example, which I think this Con-
gress has
Mr. MCCLORY. Do you know anything about what the CIA or what
our Nation did or the intelligence agencies did between 1945 and 1965 ?
Mr. SCHAAP. Well, my understanding is that they pumped many
millions of dollars into the Christian Democratic Party in Italy, for
example.
Mr. MCCLORY. Well, do you think Western, free Europe is anti-
American?
Mr. MAzzOLI. The gentleman's time has expired. We will have a
second round.
Mr. MCCLORY. Well, could he answer?
Mr. MAZZOLI. Yes, I will yield a minute.
Mr. SCHAAP. I will answer very, very briefly. I know we have a pro-
found difference of opinion on it. All I am saying is that I think it
is wrong for this country to secretly pump millions of dollars into
the coffers of a particular political party in another country. I think
it is wrong for anyone to do that.
Mr. MCCT.ORY. Well, I can only observe you are not answering the
question.
Mr. MAZZOLI. Mr. Schaap, let me ask you, on my time, just briefly-
at the bottom of page 3 you seek to disabuse the committee of any
thought that you use clandestine means to get your information, or
that you use classified material, but you work with public records
and you don't have some special access. Maybe the term "special ac-
cess" is important in this, or that it comes from inside sources, because
staff handed me a copy of your Anril-May 1979 issue in which there
is a very long secret document, Department of State. dealing with
something that occurred, I guess, in Europe. So-and this is the first
time I have seen your nublication-apparently you do use classified
information and publish it.
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Mr. SCHAAP. I am sorry, which issue is that that you have before
you?
Mr. MAZZOLI. April-May 1979, on page 6, and perhaps the use of
that document can !be squared with your statement at the bottom of
page 3, but it seems like you are leading the committee, in your state-
ment on page 3, to believe that classified information doesn't play a
part, it is gleaning public records and whatever.
Mr. SCHAAP. Well, that particular example can be explained very
easily. This document appeared prior to our publication in an Italian
newspaper, I believe called La Repubblica. It appeared in full, and
in fact, one of the reporters for La Repubblica sent us a copy in the
mail, and we additionally received two other copies in the mail anony-
mously, I don't know where from, but in fact, it had already appeared
in full in an Italian newspaper and was not secret.
Mr. M&zzou. Let me-and maybe I am wrong, because I really
don't want to read anything especially into this, but on page 3 of your
statement in which you say that despite the entreaties of your col-
leagues in the fourth estate you have not succumbed and you have
not given out the names of the CIA people, if any, in Tehran, and
you say that you take some small issue with your colleagues at the
Washington Post for having published the fact that allegedly CIA
helped doctor the visas.
Mr. SCHAAP. For having published it while there are hostages being
held. I wouldn't mind it being published after there was no situation
like that.
Mr. MAzzom. I find this almost-well, it seems to me that you are
really trying to perhaps have it both ways. You are trying to indicate
that you have a certain honor, if you will, or righteousness in how you
approach this, and at the same time you, without any backward looks,
publish names, some of which are not even correct. You know, if they
are correct, possibly your righteousness has been displayed and dem-
onstrated concretely, but sometimes they are wrong names, sometimes
you finger the wrong people.
Mr. SCHAAP. Nobody has ever proved that to our satisfaction, sir.
By the way, I might add, no one has ever sued us for being named, no
one has ever threatened us for being named, no one has ever pointed
out a mistake.
Mr. MAZZOLI. Well, I would hardly think that people would ever
sue you, for obvious reasons.
But, I wonder why you would argue with what the Post has done.
I mean, why would that concern you, give you trouble?
Mr. SCHAAP. It gives me trouble because we are very sensitive to this
aspect of putting people's lives in danger. Ever since the Welch as-
sassination, there has been an assumption on the part of many people
that it was caused by his having been named in a predecessor magazine
of ours that we did not work on at that time, called CounterSpy, when
in fact that wasn't true. The real problem is that as I recall I think in
March of this year Admiral Turner admitted in a speech he was giving
at Johns Hopkins that perhaps it was true that the naming of Welch
in CounterSpv had nothing to do with his being killed, but that was
irrelevant to the issue then being discussed.
We have had to live with that for a number of years. We are not in
favor of putting anyone's life in danger and don't believe that we do.
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The situation in Iran is sui generis, and that is why we feel so con-
cerned. It is not a principle that relates to the concept of naming
names.
Mr. MAZZOLI. Well, let me thank you again. As I say, there is a
profound disagreement between the two of us, but I think that you
have served a very useful purpose in explaining to this committee the
position and the perspective which you use in doing your work.
My time has expired.
The gentleman from Massachusetts is recognized.
Mr. BOLAND. Mr. Schaap, where do you draw the line in exposing
secrets? Is it OK to name names of agents but not the details of re-
connaissance satellites, for instance?
Mr. SCHAAF. "well, I don't know very much about reconaissance
satellites.
Mr. BOLAND. Have you ever published anything about reconnaissance
satellites?
Mr. SCHAAP. To my knowledge we have not published anything
having to do with reconnaissance satellites.
Mr. BOLAND. But if you had, if you had information with respect
to highly secret reconnaissance satellites, I presume that you would
print it.
Mr. SCHAAP. I am not so sure. I don't think we would unless it was
a situation where it related to manipulation of events or dirty tricks.
As I said, we have stated publicly many times, we are not against
intelligence gathering in that sense.
Mr. BOLAND. All right, where do you draw the line on exposing
secrets, then? You are in the business of exposing secrets, are you not,
in a sense?
Mr. SCHAAP. In part, in part.
Mr. BOLAND. Sure.
Mr. SCHAPP. Let me point out again that we publish a 32- or 36-page
magazine,. 1 or 2 pages of which may be devoted to naming names,
and unfortunately, we live with the fact that nobody ever talks about
the rest of it, but we do publish investigative pieces and political anal-
yses and reports which don't name any names but discuss politics
around the world.
Mr. BOLAND. I suppose that one of the reasons why people center
around naming names is because that is a very-for a lot of people that
is very serious.
In response to Mr. Mazzoli, I thought I would ask this follow-up
question. What do you know about the 1,000 individuals that you have
exposed that leads you to believe that they are performing individ-
ually illegal acts, and what makes you so confident that no harm has
come to those whose names have been exposed or disclosed or harass-
ment to their families?
You really don't have that knowledge, do you? You don't
Mr. SCHAAP. I feel fairly certain that certainly if any serious harm
had occurred to anybody we had named, that the press office of the
CIA would have called a press conference and had it on the wire
services instantly. The Welch assassination, they had a press confer-
ence called before he was in his coffin.
Mr. BOLAND. Well, I am not sure that they would do that. The CIA
can respond to that one, though. We will certainly ask whether or
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not. I am not sure they would respond in the way that you have in-
dicated because I think that might very well lead to harm to others.
But I presume that you would agree that harm can be done to fami-
lies, that they have to move, they have to pull up their roots in a par-
ticular country when the name of an agent, when a particular agent's
name is disclosed, and harassment can easily occur and has occurred
many, many times to the homes and the families of those who are con-
nected with the intelligence community in various countries whose
names have been disclosed.
Now, would you consider that to be harmful?
Mr. SCHAAP. I am not sure what you mean by harassment. Of course,
I have no knowledge of any that has occurred. As I said, we are
against any physical harm. We have no reason to believe any has oc-
curred. But frankly, within the ambit of our philosophy, which is
that we think the agency is beyond reform and ought to be revamped,
our aim is to try and stop it from continuing to do what it is doing. If
it were proved to our satisfaction it didn't do those things, we would
feel completely differently.
Mr. BOLAND. Now, let me ask you again, what abuse are you stop-
ping by naming names? You know, that is one of the purposes, you
say, the abuse of the intelligence community, the abuse of the CIA,
and naming names to me doesn't stop whatever abuses you are con-
cerned about.
Mr. SCHAAP. Well, it stops a large area, we think or we hope, which
has to do with the undercover officers obtaining the confidence of
persons in various positions in other countries by pretending to be
something other than what they are. The only way they can really get
to meet let's say an opposition politician or a labor union leader in cir-
cumstances where they can then hope to, in effect, corrupt that person
and cause that person to become an operative for them would be by
having this cover of pretending to be something else.
Mr. BOLAND. Well, how do you obtain intelligence in foreign coun-
tries without cover?
Mr. SCHAAP. Again, the problem-I agree that that is necessary.
The problem is our philosophy about the CIA as an institution and
the abuses which it has committed. If there were a fresh start, and if
it were simply intelligence gathering, if there were a different esprit
de corps, if there was not what we feel is a veneer that has built up
over many years of allowing an agency to think it can do virtually
anything it wants in the world, including killing, murdering, bomb-
ing, and everything under the sun. If it weren't for that, we'd feel
differently.
Mr. BOLAND. Well, I think a lot of people would agree with that, the
abuses have been extensive in the past, and the question is whether or
not they are present. I am convinced they are not, but in any event, is
your bottom line that the United States should not be engaged in any
covert activities? Is that a fair assessment of one of your positions?
Mr. SCHAAP. No, any covert manipulation.
Mr. BOLAND. What is the difference between covert manipulation
and covert activity?
Mr. SCHAAP. Well, if someone under cover is quietly attending po-
litical rallies and making note of what the political temper in the area
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is 'and so on, that is no problem. If, on the other hand, the United
States, through the CIA, is paying money to certain political parties
so that they can have more election propaganda and win the election,
that we disagree with.
Mr. MAZZOLI. I am sorry, the gentleman's time has expired.
Mr. BOLAND. Thank you very much. I appreciate your appearance
here today.
Mr. MAZZOLI. The gentleman from Illinois.
Mr. MCCLORY. Just reading from one of your advertising letters,
I guess, with which you send a complimentary copy of your Covert-
Action Information Bulletin, and then inviting the person to sub-
scribe, you mention not only naming names, exposing CIA case officers
overseas, ". . . we also commence with this issue the column entitled
`Sources and Methods' dealing with some of the more unusual tech-
nical accomplishments of the intelligence complex."
It seems to me that it -is inherent in the intelligence community to,
as we develop the techniques and methods and sources for gathering
information, which is the principal activity of intelligence work, to
not expose those to persons who would utilize them in a way which
would be adverse to our national security interests.
How do you justify that, publicizing that kind of activity?
Mr. SCHAAP. Sir, if you would read the column in question, you
would discover that it does not deal with secret information. It in
fact deals with public information reported in books and scholarly
journals. The particular article in question, which was reported all
over the world, dealt with using essence of cockroach to track people
and how powerful it was as opposed to almost any other substance. It
was quite humorous, in fact, and was picked up by many wire serv-
ices. But it came from a public book which is all over and everbody
knows about it.
Mr. MCCLORY. Well, you make the pretense that you identify CIA
officers by reading publications, but both your magazine and the book
"Dirty Work" by your associate Philip Agee-or your contributing
editor I guess you call him, Philip Agee-and your associate Mr. Wolf,
list as sources, "Paris Embassy sources, Athens Embassy sources and
Department of State sources." So you do have these people who ap-
parently spy for you and on other Americans, do you not?
Mr. SCHAAP. Well, that is a bit of an overstatement.
Mr. MCCLORY. Are these covert agents of the CovertAction
publication?
Mr. 'SCHAAP. No, by and large those are people simply confirming
that CIA case officer Joe Smith is in fact at the Paris Embassy. It is
very often done by picking up the telephone, calling the Embassy, and
asking for Joe Smith. Joe Smith gets on the phone. As many witnesses
testified yesterday, and we are not about to announce the method-
ology, I don't want you to get concerned, it is very simple, from a
number of books and magazines, to discover that a certain supposed
State Department employee is in fact a CIA case officer. If the diplo-
matic list published by the Government of France lists him as being
in Paris as of a certain' date, you have a friend in Paris who can pick
up the phone, call the Embassy and ask for him. If he answers the
phone, then we have ascertained through our source in Paris that he
is there.
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Mr. MCCLORY. Do you think if we publish your testimony here it
would kill the circulation of your magazine l
Mr. SCHAAP. I doubt it.
Mr. McCLoRY. Now, you mentioned the book "Who's Who in the
CIA" by Julius Mader as a book that did what you do now. This was
back in 1968.
Mr. SCHAAP. Far less accurately, I might add.
Mr. McCLORY. What you neglected to mention was that the book
was a product of the East Germany Government, and that the false
identification in the book of a man by the name of Dan Mitrione re-
sulted in his murder by terrorists.
What do you know about Mader and his activities?
Mr. SCHAAP. I don't know him, I know of him, and I have a copy
of the book, and there are a number of inaccuracies in it.
I would take issue with the description regarding Mr. Mitrione,
although I don't know that that is appropriate to this committee.
Mr. Mitrione received his paycheck, I understand, from AID and not
from CIA, and in that sense was not a CIA employee. Several former
Agency employees have mentioned in books, several other people have
written books that in fact he was doing a CIA case officer's job. I
really don't know that much about it. I have read books ascribing
rather terrible things to Mr. Mitrione.
Mr. MCCLORY. Well, if you would justify your publication based
upon that and naming names as being harmless because nobody has
been killed or murdered, it should suggest to you that this is very,
very dangerous business and can be very, very dangerous to the in-
dividuals and to the facilities of those persons whose names that you
name.
Mr. SCHAAP. If it were true, it could. I don't believe that it is true.
At least from what I have read, vast numbers of people in Uruguay
knew who Mr. Mitrione was and knew that he worked with the secret
police and knew that he was involved in the securing of implements
of torture and so on.
Mr. MAzzoLi. The gentleman's time has expired.
We want to thank you and your colleagues-
Mr. BOLAND. May I just ask one question, and it arises as a result
of Mr. McClory's questioning.
What is your rate of accuracy in the naming names column?
Mr. SCHAAP. Well, as I said, we think it is 100 percent. We try very
hard to err on the side of caution and have rejected hundreds of names.
Mr. BOLAND. All right, you think it is 100 percent. I think there
would be considerable dispute over whether or not it is 100 percent,
and if it is not 100 percent, then of course'those who have been named
have been falsely accused; haven't they?
Mr. SCHAAP. If we ever found out we had done that, we would print
in bold type a retraction and an apology, but I really don't think we
have.
Mr. BOLAND. Well, I am glad to hear you say that. I think you would
have some duty to those who may have been falsely labeled in the
naming names column. You would think that, too.
OK, thank you very much.
Thank you.
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Mr. MAZZOLI. Thank you, Mr. Chairman.
Thank you, Mr. Schaap and Mr. Wolf and Ms. Ray.
Mr. SCHAAP. Thank you.
Mr. MAZZOLr. I would invite to come forward to the witness table
Mr. William Colby, formerly, of course, Director of Central Intelli-
gence, now an attorney in private practice in Washington.
Mr. Colby is a career intelligence officer who became the occupant
of the Nation's highest intelligence post. Mr. Colby is well known to
our committee and has been generous in the past with his time and
his advice, and we welcome his statement on the bills before us.
STATEMENT OF WILLIAM E. COLBY, REID & PREIST, FORMER
DIRECTOR OF CENTRAL INTELLIGENCE
Mr. CoLBY. Thank you very much, Mr. Chairman. It is a pleasure to
be with you again.
Mr. Chairman, American soldiers expect to face hostility, danger,
and even death from an enemy. They expect the Nation which sends
them into combat, however, to protect them against being shot in the
back by fellow Americans. In several laws, Congress does exactly that.
One is, of course, the punishment for treason for giving aid and com-
fort to the enemy. A more precise one is the statute punishing anyone
who, with intent to interfere with, impair or influence the loyalty,
morale, or discipline of the military or naval forces advises, counsels,
urges, causes or attempts to cause insubordination, disloyalty, mutiny
or refusal of duty among their fellow soldiers.
Congress has enacted a number of other acts to protect particular
officers of the Government against assault, murder, or manslaughter.
These include the President and Vice President, Members of Congress,
and officers and employees of the United States. Congress has also pro-
vided punishments for individuals falsely impersonating Government
officers. The Supreme Court has said that the proper purpose of that
act is to maintain the general good repute and dignity of Government
service.
Mr. Chairman, American soldiers expect to face hostility, danger
danger, and possible death from hostile governments, terrorist groups,
and individuals. They do this in conformity with the intelligence mis-
sion assigned them, by our constitutional executive and legislative au-
thorities. I hope that this mission will be clarified in the near future
by the adoption of a new legislative charter, as the President has sug-
gested. But the National Security Act of 1947 and subsequent annual
appropriations for our intelligence services over the past 30 years con-
stituted a congressional determination that intelligence was a necessary
service of our American Government, and that its officers and em-
ployees, and their families, and our foreign agent sources were serving
the American Nation.
The dangers to intelligence personnel abroad have been increased in
recent years by the sensational and irresponsible exaggeration of a
comparatively few incidents in the history of CIA, to give a totally
false impression of the scale of its missteps and misdeeds and stimulate
attention and hostility to its activities. And the vulnerability of our
officers has increased as a result of inadequate official and unofficial
cover, available for their protection and of unauthorized revelations
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by erstwhile fellow intelligence officers repudiating their solemn
undertaking to respect the necessary discipline of the profession.
Other Americans opposed to intelligence for ideological reasons have
developed a cottage industry of exposing fellow Americans. They
frankly admit this dangerous action as a cynical tactic to veto Con-
gress determination that the service is important to the protection of
our republic.
Danger is not the only threat these practices pose. The identifica-
tion of our officers increases surveillance of their activities by hostile
governments and political groups so that they, cannot carry out their
missions. Other governments can also be politically compelled to act
against their presence when their identification is trumpeted, although
they would be more permissive if they could pretend ignorance. And
the career potential of highly motivated, selected and trained officers
can be ruined by this sort of deliberate sabotage.
The personnel of our intelligence services have carried on their
duties as well as they could despite those harassments and dangers.
But it is far past time that the Congress should provide the necessary
protection and support that the honorable men and women of intel-
ligence deserve in their service abroad. The Congress has protected
our military forces; it has protected our currency against counter-
feiting; it punishes citizens who refuse to pay taxes out of disagree-
ment with the laws enacted by our constitutional system; it even took
pains to omit the identities of intelligence personnel from the pub-
lished accounts of its extensive investigations in the last 5 years of
past intelligence activities. It now must act a ainst those who would
deliberately destroy what the Congress has determined is essential
to protect our country, an effective intelligence service.
An even more vulnerable group of people are the foreign and Ameri-
can sources and informants of American intelligence. Many of these
have responded to the increased danger in recent years by withdrawing
from secret relationships or refusing to initiate them, in well justified
fear that they could be exposed to retribution and reprisal for con-
tributing to America's better knowledge and understanding of for-
eign developments. In today's world, Mr. Chairman, we must reassure
them that we have the will and the means to protect them as we would
our eyes and ears.
As this committee well knows, however, the present statutes of the
United States are totally inadequate to provide this reasonable sup-
port and protection of our officers and informants. The attempts of
the executive to use contract law to control this pernicious activity
have been valiant, but are obviously inadequate. It is also plainly
undignified for this Congress to leave such an important obligation
to the mercies of such a skimpy protective device.
For these reasons, Mr. Chairman, I fully support H.R. 5615, and
commend the responsibility and initiative of its sponsors, who I note
with pleasure include every member of this important committee.
In section 501(b), the specific intent requirement puts the activity
well beyond the constitutional protections of free press, speech, and as-
sembly, especially as the intent must be proved by more evidence than
the mere intentional disclosure of the information or inferences de-
rived therefrom, and the proscriptions are clearly necessary and rea-
sonable to protect an important public function.
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This bill, Mr. Chairman, is no Official Secrets Act on the lines of
British legislation. It does not even go as far as suggestions I previ-
ously made to this committee, which would have included the secret
techniques and sensitive technology as well as the human sources of
our intelligence agencies. It does, however, take a major step forward
for the protection of the individuals who serve our intelligence com-
munity. This will carry out the obligation our country expressly and
by implication makes to protect the identities of Americans and for-
eigners who risk their lives, their families and their livelihoods to
provide our country the information necessary to give it better pro-
tection against the many problems in the hostile world around us.
Some time ago, Mr. Chairman, I asked the Congress to give a signal
to our friends around the word that we will protect the real secrets of
American intelligence while we will not insist on the complete secrecy
that envelopes the intelligence services of other countries. Intelligence
technology has expanded our knowledge of the world immensely, but
there are subiects which are not visible on the photographs or ascer-
tainable by electronics. We must depend upon brave Americans and
brave foreigners to provide us this material. We owe their bravery the
same debt of responsibility for their safety that our country owes
our soldiers when we send them into action.
I have only two minor points in addition, Mr. Chairman, to submit
for your consideration. The definition in section 505 (6) excludes from
the category of agent, informant or source of operational assistance
individuals who are citizens residing within the United States. I would
suggest that a number of such individuals should be given the same
protection as the same category abroad. This could be of particular
importance in securing the assistance of American citizens in this
country to arrange cover protection for intelligence officers abroad and
conduct other activities abroad from an American base. Exposure can
wreck their businesses, curtail their foreign connections and travel,
and subject them to public attack for having helped their country.
The definition does not exclude foreigners residing in the United
States, and I believe it should not, so I find it somewhat contradictory
that it excludes our citizens within the United States. If the concern
is to insure that the Agency not be involved in operations within the
United States actively using informants and agents here for domestic
purposes, better systems of control are available in the new charter
legislation than leaving these other legitimate helpers exposed in the
fashion that this definition does.
It would also seem appropriate to consider the addition of the Fed-
eral Bureau of Investigation to the agencies listed in section 505(4).
A number of their informants and agents would seem to be entitled
to the same protection as we would give foreign sources. It may be
that this subject will be covered in separate charter or other legisla-
tion for the FBI, but I suggest that it is a subject which needs
attention.
Thank you very much, Mr. Chairman.
Mr. MAZZOLI. Thank you very much, Mr. Colby. I appreciate your
testimony. It will be very helpful to the committee, including your
observations about coverage of the FBI. On page 5 you call the atten-
tion of the committee to the fact that current statutes are inadequate,
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and I think yesterday, you were not in the room, but the Department
of Justice finally has gone on record, after a long, ambivalent period,
of being in favor of new legislation and eschewing the position they
have had up to now which is that current statutes, properly enforced,
will do the job.
So we will get some type of legislation from them.
Mr. CoLBY. Delighted.
Mr. MAzzoLI. Let me ask you to do the impossible. Let me ask you
to consider yourself a publisher of Covert Action Information Bul-
letin and consider yourself of the firm belief, reached upon sensitive
deliberation, that the CIA in its current position ought not to exist,
and that you are trying to hasten its demise. Can you conceive of doing
that job without naming names ?
Mr. CoLBY. Well, I think the gentleman who spoke before me, Mr.
Schaap, said that out of the 32 pages that he puts out, most of which
are exposures of CIA activities of one sort or another, only one or
two pages name names. It seems to me that we are asking him to leave
out the one or two pages. We are not telling him to stop the rest
of the activity.
In other words, I think yes, there are things you could do without
naming names. One can publish things, one can come to this Congress
and advocate the demise of the CIA, there are lots of things that are possible without naming the names..
Mr. MAZZOLI. I think the committee yesterday in many of its ques-
tions indicated from various perspectives the problem-and I don't
think it is a problem of being jingoistic about the United States or
anything else, it is just a problem of why the individuals have to'be
named in the course of pursuing the goal which may be salutary, who
knows. I disagree but they may be correct in their view that the CIA
should only engage in information gathering. So it is a problem that
concerns us greatly, this naming of names, more so than pursuing
that point of view.
As a professional who has been the chief intelligence officer of the
United States, and a serious student of intelligence as a professional,
do you believe that the intelligence gathering capability of CIA goes
forward apace if there is the naming of names going on, accurately
and inaccurately?
Mr. COLBY. Absolutely not, Mr. Chairman. The relationship with a
secret source for the collection of sensitive information that we would
not otherwise receive must be held secret, and it must be conducted
secretly.
Now, if the American officer involved or if the source is named,
then the relationship cannot exist safely in these countries. As I said,
even before I left CIA, I was aware that certain people had already
indicated that they did not dare continue to work for us out of fear
of exposure of their names.
Now, we struggled very hard to keep names out of the investiga-
tions, and I think the Congress showed responsibility in the way that
it ae'reed with that position.
Mr. MAZZOLL So you can say from your experience while you were
with CIA that some of our sources dried up, some of the material
that we could have used was unavailable as a result of the fear of
somebody being named.
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Mr. COLBY. Of exposure, yes, Mr. Chairman.
Mr. MnzzoLI. My time has expired, but I thank you for that state-
ment, Mr. Colby.
The gentleman from Massachusetts is recognized.
Mr. BOLAND. I want to express my appreciation to Mr. Colby for
coming here. He has assisted this committee on many occasions, and
has aided us greatly in coming to particular decisions that we reach
in other areas that this committee considers.
I think you are the only one, Mr. Colby, that favors, within the
definition of the source of operational assistance, American citizens
residing in the United States. These are people who are now specifi-
cally excluded from coverage in H.R. 5615, and you think it might
be a wise idea to include them.
That gives me a little bit of a problem. Do you think it is proper
or wise to subject someone to criminal prosecution for disclosing
that his college professor gives information to the CIA, or that, as
happened several years ago, the National Student Association was
funded by the CIA, or that the president of the Widget Corp. has a
covert contract with the CIA?
Mr. COLBY. Well, my position, Mr. Chairman, comes from a very
intense discussion I had with a gentleman with a very large-scale busi-
ness at one time in the middle of the investigations, and he was deathly
afraid that his worldwide business would be destroyed-and I can
assure you it would have been-if it had come out that he had been
helpful to the CIA in various situations.
Now, I think that that man deserves protection. We did protect
him. It has not come out, and I hope it never does. But the fact is
that I think if someone deliberately revealed that contact and wrecked
his business, that that individual should be punished.
Mr. BOLAND. Now, you also indicated that
Mr. COLBY. Now, whether you would apply it to every case, I am
not sure. I mean, there may be some that
Mr. BOLAND. OK. One problem I have with it, I think that there
would be an incredible amount of prosecutions under it. I think there
would be a number of charges leveled against those who would indi-
cate that so and so professor or so and so president of an institution
is a member of the CIA or consults with them.
Mr. COLBY. Well, if I may, Mr. Chairman, I am not so sure of that
because in the first place, the first section would only refer to an
individual who was entitled to that access, to that information and
then revealed it. So it would not apply to the college student that
made a point of it. And the second section would only apply to some-
one who was deliberately trying to wreck the intelligence activities
of the U.S. Government.
I mean, there are all sorts of other motives that could have led to
that.
Now, I think we just saw a very clear example of the thoucrht process
here that says that CIA is an evil institution and that CIA must be
destroyed, and that the way to do it is to reveal the names. Now, I
think that is a con scions thought process.
Now. my problem is that the Congress had enacted that this kind
of intelligence activity should continue. I can understand people being
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against it and advocating the elimination of it. I understand paci-
fists who say there shouldn't be an army. But nonetheless, I don't see
that we should allow them to go and destroy the institution that the
Congress has set up, and that these provisions are reasonable and
necessary to protect our intelligence activities.
Mr. BOLAND. Let me ask you whether or not-it was stated here
several times yesterday, and Mr. Schaap indicated today that it is
possible to determine the identities of CIA officers by diligent reading
and legwork without ever having access to classified information or
Government sources.
Do you believe that 8
Mr. COLBY. A number can be identified. One is inclined to include
a misidentification of other individuals among that number if one only
looks from the outside, and there are some that will be concealed,
that they will not identify.
Now, this act would not affect this kind of an activity unless there
were a deliberate intent to destroy our intelligence activities. Now,
that is a matter of proof that would have to be brought before a jury
and a jury convinced that that actually was the intent, to destroy our
intelligence activities. Any of the other purposes
Mr. BOLAND. And that would not be easy, of course.
Mr. CoLBY. No, it would not be easy, and there could be all sorts of
other reasons why the individual did it which would undoubtedly arise
in the trial.
Mr. BOLAND. Now, you made reference a few times in your statement
to charter legislation which is imperceptibly but surely working its
way through the Congress.
Would you prefer to wait for the charter legislation or do you think
we ought to deal with some of these matters piecemeal until we get the
charter legislation?
Mr. CoLBY. I think this matter of protecting our sources, Mr. Chair-
man, is sufficiently important. It is a very important act, to give this
signal around the world.
Mr. BOLAND. You would favor it being considered outside.
Mr. CoLBY. I would go ahead with this act and then incorporate it
later.
Mr. BOLAND. Thank you very much.
Mr. MAZZOLI. Thank you, Mr. Chairman.
The gentleman from Illinois, Mr. McClory.
Mr. MCCLCRY. Thank you, Mr. Chairman, and I also want to express
appreciation for your appearance here today, plus your other appear-
ances, and to state as a ranking member on the temporary Select Com-
mittee on Intelligence, how fully you cooperated with our committee
in providing us with all of the information that was essential for our
investigation.
I want to state quite frankly that I think that the breach of con-
fidence, the breach of trust which the committee itself, and the staff
of the committee committed was egregious and that it contributed to
a great deal of the harm that I think has been experienced' by the CIA.
A number of these so-called exposures were not necessary for the
purpose of our committee's work, and I think that the same motiva-
tion that is indicated in the testimony of Mr. Schaap prevailed to
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induce persons to expose confidential, secret information which you
provided us with, that I understood we were to guard with complete
secrecy.
Mr. COLBY. Thank you, Mr. McClory. I must say, I have been pleased
by the very clear evidence that this committee has a different frame
of mind.
Mr. MCCLORY. I think that the Congress itself, the House of Repre-
sentatives, did support the position I am taking by burying the report
so that it might never appear with any official imprimatur.
We have a number of activities where we guard secrets, where we
guard confidentiality, and this doesn't impair the rights and privileges
we have under the first amendment. Grand jury proceedings are secret,
and if you violate that secrecy, why, it is punishable. We have various
other relations of confidentiality and privilege, where secrets are
secret and part of our system, and it seems to me that to intend that
the secrets which are involved in intelligence gathering, including the
identities of persons who operate in secret, to suggest that that secrecy
should not exist is inconsistent with our traditional American system.
What does concern me about this legislation is an apparent will-
ingness or desire on the part of some to discriminate, discriminate
between agents of the CIA, for instance, and other persons in Gov-
ernment to whom the secret information is disclosed, persons who are
not in Government who are nevertheless privy to secret information,
journalists who by one means or another secure information.
Do you think we should discriminate between Americans, or do
you think we should put everybody together?
Mr. COLBY. Well, I think, Mr. McClory, that the legislation is an
example of the selection of the practical and the possible as distinct
from perhaps the ideal, and I fully subscribe to that sensible approach
to it.
We do have, as you say, many laws which punish Government offi-
cers who reveal secrets, trade secrets, agriculture statistics and all the
rest of it. There are some 20 or 30 statutes that do this. So it is not
abnormal that we have this kind of punishment.
I think, however, that this falls into the category of a narrowly
drawn bill just to protect the sources of our intelligence overseas, and
I agree that let's get this one done and let's worry about the rest of
it later.
Mr. MCCLORY. Would you just give me your appraisal of the con-
tributions you think that CIA and other intelligence agencies have
made to our country in contrast to the, to what I would regard as
the relatively few abuses that are concerned? To what extent do you
think that our freedom and our national security have been secured
as a result of intelligence activities?
Mr. COLBY. Well, the fact that we have developed-and I will iust
talk about the clandestine ones, not the technology and not the scholar-
ship. We have had individual reports which increase our understand-
ing of the developments in foreign countries. We have had foreign
officers who have given us secret information about their military
activities and their military programs which has helped us in time
of crisis to understand better what we are facing. This particularly
happened, this kind of assistance, in the Cuban missile crisis; that
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kind of information, clandestinely acquired, gave us a better sense of
confidence that we understood what was going on and what was apt
to go on.
Now, this kind of intelligence is not visible from a photograph.
It is not ascertainable by clipping out clippings. It is the inside fac-
tions and forces at work in foreign societies which keep their affairs
very secret indeed. Unless we understand those, unless we can assess
better the likely dynamics of another situation through this kind of
inside information, we are going to be flying blind on some of these
things.
Mr. MnzzoLI. The gentleman's time has expired.
The gentleman from Ohio, Mr. Ashbrook.
Mr. AsnBROOK. Mr. Colby, say on February 1, employee X of the
CIA, is sent for what you as Director would deem to be a relevant
and necessary function, under some form of cover to Egypt on assign-
ment. Say on March 1 some publication, for their own reasons, pub-
lished that agent's name. Now, the question is, is there any way that
information can be legally obtained for publication?
Mr. COLBY. Possibly, by study of some weaknesses in the cover struc-
ture that-some of these weaknesses at least did exist. I don't know
that they have. been improved. There have been some improvements.
The State Department doesn't publish its list of officers with quite the
same detail they used to. After a number of years of urging them to
not do that anymore, they stopped doing it, I am glad to say..
But there are certain ways that one could possibly, from the out-
side, ascertain that an individual is actually a CIA agent, whereas
another agent possibly you wouldn't be able to ascertain from the out-
side, you would have to get it from the inside.
Mr. ASHBROOK. So it is not possible to project for us whether that
information was legally obtained, accidently obtained, surreptitiously
obtained, or illegally obtained.
Mr. COLBY. Right. And of course, the publisher might indeed pub-
lish it, having received it from somebody who himself was violating
the law by illegally giving the information to him.
Mr. ABHBROOK. Yes, I am not talking about his apparent right to
publish information. I am talkin how it is acquired and trying to
work back to that particular probg lem.
Say 10 agents go out the first of February to 10 different stations,
and the next month all 10 names are published. Do you have a little
more reasonable
Mr. COLBY. A little harder on that one.
Mr. ASHBROOK [continuing]. Reasonable assumption that they had
been improperly
Mr. COLBY. In the first place, if it is 1 month after they arrive, then
the chances are that there is some inside source.
Mr. ASHBROOK. But there is no way in legislating that we can as-
sume that the preponderance of evidence would indicate they had been
illegally obtained? Would that be a fair assumption?
Mr. COLBY. I would say that you couldn't say that the preponder-
ance was either way in any single case. I think there is a chance of one
and a chance of the other.
Mr. ASHBROOK. Thank you.
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Mr. MAZZOLI. Thank you.
Mr. Colby, one of the things that motivates this subcommittee, and
I think the Congress, is the fear that by identifying undercover agents,
you jeopardize them personally.
Are we overplaying that? Is this an overdramatization of the fact?
Mr. COLBY. I don't think so, Mr. Chairman. I think people live in a
certain fear of it, and I would even say that Mr. Welch's death wasn't
entirely one thing or another. There were a whole series of things that
contributed to his death, including the exposure of his name, but a
lot of other things also. But that is a pretty serious effect, and it has
a very deterrent effect on a lot of other people who don't want to go
to a dangerous assignment where there are known terrorist groups
active, and then be revealed as members of the CIA.
Mr. MAZZOLI. On another point, yesterday-and I hope my memory
is correct-Mr. Ford Rowan, who used to be with NBC News, came in
here and in a very eloquent statement said that among other reasons
why he was against the bill was because you could always find some
way to get out from under any of its provisions and manufacture
proof that would show lack of intent.
Earlier in the day, Mr. Keuch from the Department of Justice in-
dicated that if the case involved a newsman, it would be extraordi-
narily difficult to prove intent to harm the national security. If these
people are correct in their assessment, the one, that it would be in-
effective because there's a bunch of Philadelphia lawyers around, the
other because they are a member of the news media, should there be a
bill at all?
Mr. COLBY. Well, I think the first section of the bill is absolutely
vital. I have always stood for that, the discipline on the people within
the intelligence and the official community who had authorized access
to the information. This is just absurd that we allow them to go on
and spill these things and not be subject to some punishment, in view
of the many other laws we have punishing Government officers who
reveal information improperly.
Now, the second one, I think that it would only apply to a very
few cases, that is correct, that probably the newsman could not be
punished under it if he just really said it in the course of his normal
journalistic activity. This is all right with me, because I agree that
the freedom of the press is an important American consideration.
What we are talking about is people who have made up their mind
to flaunt the decision of this Congress that we need an intelligence
service, and made up their mind that they are going to destroy it.
Now, this is a total rejection of the authority of Congress to work
out these differences in attitude among our people. Now, of course
we are going to have people who are opposed to CIA. There are people
opposed to the IRS these days, of course. But that does not give them
a right to destroy the IRS. It does give them a right to complain
about it, to urge that it be changed, to circulate literature saying the
IRS is a terrible institution. That's fine, let them go ahead. But it
doesn't give them a right to destroy it. And I think the same thing is
true of intelligence.
Mr. MAZZOLI. I thank you very much for your testimony. It is always
helpful.
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The gentleman from Massachusetts.
Mr. BOLAND. Let me just ask the one question. In your opinion, was
Richard Welch's death caused by the printing of his name in Counter-
2
spy
COLBY. I think there were four different reasons for his death,
Mr. Chairman. One was the degree of sensationalism, the heightened
attention to CIA, all the rhetoric, all the noise that frightened a lot
of people about CIA, made it a worldwide cause, I think, improperly,
quite frankly, because I agree with Mr. McClory that the abuses were
few and far between, but I think that was one factor.
The second factor was the focusing on the identification of indi-
vidual CIA officers, in other words, bringing down that general sensa-
tional approach to the personalities of our people, not with Mr. Welch
himself, but just the idea of focusing on CIA people and having their
identities revealed, and we went through quite a little exercise of see-
ing it happen in various other places.
And the third was the actual name of Mr. Welch as a known officer.
And the fourth was some of the weaknesses in our cover situation,
some of the weaknesses imposed by the legislation that affects it, and
some of the weaknesses yielded to by CIA in desperation over not
being able to get a better cover.
Now, that is four reasons. I don't name just the one, and I will
point out that my reaction at the time of his death was not to attack
the people who published it until they published a scurrilous state-
ment that tried to blame his death on CIA. That really lifted the hair
off my head, and I am afraid I lost my temper and denounced that
kind of cynical exploitation of the death of an American officer.
Mr. BOLAND. Your statement with respect to cover is instructive.
Cover really isn't adequate enough, is it, in the foreign embassies?
Mr. COLBY. It is terrible. I hope it has been improved since I left,
Mr. Chairman, but I don't know. I will just speak as when I left-
it was terrible.
Mr. BOLAND. Can we blame the State Department for that?
Mr. COLBY. No, we can't blame the State Department, we have to
blame lots of people. We can blame the fact that the American Gov-
ernment, in its own deliberations, and the Congress, has excluded CIA
from a whole lot of official covers. We send officers abroad, but we
say they can't be-we did say, I don't know whether they do now--
they can't be in the USICA, International Communications Agency,
they can't be in the AID anymore, they can't be in the Peace Corps,
they can't be in various other areas.
Now, as a result of those agencies attitudes and that of Congress-
congressional pressure produced the AID bar, there are only a few
areas where we have good cover. The State Department, we cannot
use certain kinds of nominations, and therefore that is a further ex-
clusion. You boil it down, and there are very few things that you can
use, and then it become pretty easy to identify.
Now, we have got to open up the possibilities at least within the
Government. Now, we also have the general restrictious-thou shalt
not use the press, thou shalt not use various other private areas, and
everybody would like to get on that bandwagon and exclude CIA
from them, and then there would be no unofficial cover either.
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Mr. BOLAND. Is the personnel within the intelligence community
overseas initialled FSR all the time?
Mr. COLBY. Not all the time, no, Mr. Chairman.
Mr. BOLAND. OK.
That would be-if that were so, of course, that would be relatively
simple.
Mr. COLBY. Well, there are other people who are FSR, too, and that
is what leads to the misidentification of some non-CIA people as CIA.
Mr. BOLAND. I see.
Mr. Colby, thank you very much for your appearance.
Mr. COLBY. Thank you very much, Mr. Chairman.
Mr. MAZZOLI. Thank you very much.
The gentleman from Illinois, Mr McClory.
Mr. MCCLORY. I will just ask a couple of questions.
As far as you know, do the KGB or other foreign intelligence agen-
cies, do they restrict their personnel operating under cover to exclude
athletes or dancers or scientists or embassy personnel or consular of-
ficers or military attaches or anybody at all-journalists?
Mr. COLBY. They certainly do not. There is sometimes a nonathletic
athlete that shows up. There are some others that appear among their
teams, among their groups.
Mr MCCLORY. You may have answered this, but there is pending,
of course, so-called charter legislation which it seems to me perhaps
imposes more restraints than it does opportunities for liberation of
the CIA and other intelligence agencies.
Do you not feel that if we could amend the Freedom of Information
Act to exclude the foreign agents from having access to secret informa-
tion and amend the Hughes-Ryan Act so that the agencies don't have
to report to 180 Members of Congress plus the staffs, and if we en-
acted this legislation which now I understand is top priority with the
majority leader of the House of Representatives, we would be better
off to move on these three things, wouldn't we, and leave charter for
later consideration.
Mr. COLBY. Well, I certainly think that this bill that you have be-
fore you now is the most important, quite frankly.
Second, I would say that also important is the Hughes-Ryan thing.
This is absurd. I mean, we cannot conduct that kind of operation
under those provisions.
The Freedom of Information Act is certainly a desirable step to
take. In other words, the bill submitted by Senator Moynihan, Senator
Nunn and the others I think is very appropriate and quite appropriate.
I would like to see a new charter. I would like to have seen it a year
or two ago. I think it was hung up between those who would like to
go back to the old days and those who really want to festoon every
kind of restraint on intelligence possible. I think we need to come to
that American compromise and consensus which will reflect what in-
telligence should be doing today, so that the people in intelligence
have a clear line and they can go back to work and not debate what
they should be doing anymore.
Mr. MCCLORY. In a sense, translate into statutory form what is in
the guidelines now.
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Mr. COLBY. Right, yes, essentially. There will be some changes., and
I am sure I would not be satisfied with the final result, but it will be
an American consensus, and I think an important new one.
Mr. MCCLORY. Well, these amendments in the FOIA, Hughes-Ryan
and identities of agents legislation would enable us to at least partially
fulfill what I would interpret as President Carter's new determina-
tion to revitalize the intelligence capabilities.
Mr. COLBY. I think so, yes, Mr. McClory, and you do also have the
restrictions in the executive orders which will insure that the Agency
stays within its proper limits in the interim. But I do think that that
would be well put into legislative form rather than just Presidential
form.
Mr. MCCLORY. Thank you very much.
Mr. MAzzoLi. The gentleman has time. Would he yield it to me?
Mr. McCLORY. Surely.
Mr. MAZZOLL Thank you.
The gentleman brought up the point that the KGB doesn't elimi-
nate any category for cover, so I think if we find a slightly clumsy,
overweight skier at Lake Placid next month we might be a little bit
worried that maybe they have other than skiing triumphs on their
mind.
Mr. COLBY. They are trying to train a few ballet dancers, too.
Mr. MAZZOLi. A slightly overweight ballet dancer.
Let me ask you this question. Some of our witnesses in the last day
or so have mentioned that in truth, it is fairly common that in foreign
embassies, certain. people are CIA, known to maybe even the press
abroad.
Let's accept that that is true. It may or may not be in each case
true, but let's accept that it might be true.
Do you still see danger that would accrue and come from an official
revealing of their names or an attempt by a Covert Action Bulletin
to name these people?
Mr. COLBY. Well, I think it is a problem, in our relationships with
a foreign country. There are, as you say, a number of these areas
where our senior officers, particularly, usually not the junior ones but
the senior ones, are known to the local intelligence services and they
deal with them. They are known around the Embassy itself, our
Embassy, among the other Americans, and there is maybe too much
chatter about them, too. I think the answer is if you had an official
statement of their CIA identity, it would give the local government
a considerable strain. If you had an unofficial revelation of their
identity which could not really be contested, such as by a private
group, then you can put pressures on that government equally because
the opposition groups in that country will focus on it, will raise a hue
and cry as to what this agency is doing in their country. They would
have a tool with which they can attack their own government and
attack ours which they would not have in the absence of that, even
though they may be known to various people, but they just wouldn't
have the Political tool for that particular purpose.
And that is affecting not the safety of the individual so much,
although it could, but it really is affecting our ability to carry out
the intelligence mission that the Congress has decreed that we should
carry out.
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Mr. MCCLORY. I ask unanimous consent to proceed for an additional
2 minutes, and I yield to the gentleman.
Mr. MAZZOLI. Thank you. I appreciate that. We are getting very,
very formal here, but I do think it helps the committee function better.
There is one problem that troubles all of us, and that concerns
disclosures made from publicly available sources. As a person who has
examined this from inside as well as outside, do you think there
could be problems, perhaps unrelated to personal safety but related
to the completion of the intelligence mission, if this information were
revealed unofficially or certainly by our Government?
Mr. CoLBY. And let's face it, Mr. Chairman, you also have a jury
to go through, and if you have an outrageous case, you are not going
to get through the jury. I mean, that is an automatic protection, of
course. And second, the standard of specific intent has to be there,
and if anyone else reveals the name, and the violation of the agree-
ment has to be there under the first section. So there are these addi-
tional obstacles to an arbitrary enforcement of that particular statute.
Mr. MAZZOLL Well, let me again thank the gentleman for his appear-
ance today, and again, you have been very helpful. All of our wit-
nesses today have been very helpful to the committee.
Senator Bentsen was scheduled to be here today as one of the au-
thors of one of the several bills before us, but the Senator was de-
tained. When his statement is obtained, without objection, the com-
mittee will receive it, and the subcommittee stands adjourned. (See
appendix C.)
[Whereupon, at 11:01 a.m., the subcommittee recessed subject to
the call of the Chair.]
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF THE DEPUTY ATTORNEY GENERAL,
Washington, D.C., June 18, 1980.
Hon. MOROAN F. MURPHY,
Chairman, Subcommittee on Legislation, Permanent Select Committee on Intelli-
gence, House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : When I testified before your Subcommittee concerning
the proposals that had been made for a new criminal statute protecting the identi-
ties of intelligence officers, agents, and sources, I was asked to respond in writ-
ing to some legal questions that were raised by members of the Committee during
the course of my testimony. The central question concerns the constitutionality of
the proposal set forth in ? 501(b) of H.k. 5615. Section 501(b) would make it an
offense for anyone to disclose information identifying a covert intelligence officer,
agent, or sourceeven where the information is assembled from the public rec-
ord-if the identity is "classified" at the time of the disclosure and the disclosure
is made with an intent to impair or impede the foreign intelligence activities of
the United States. At the hearing I expressed concern that this proposal might
chill constitutionally protected speech ; and I noted that the Department of Jus-
tice favored a different approach. I was asked by several members of the Com-
mittee whether, in our view, ? 501(b) is constitutional or not. This is a difficult
question. Permit me to answer it as briefly and as simply as possible.
1.
A first principle of adjudication under the First Amendment is that speech
cannot be punished unless it creates a danger that the Government is entitled to
Prevent. See Schenck v. United States, 249 U.S. 47 (1919) : Dcbs v. United States,
249 U.S 211 (1919) I think it clear that there are circumstances in which publi-
cation of the identity of an intelligence officer, agent. or source can create a dan-
ger that will justify criminal prosecution of the publisher under the Constitution.
At the same time, I think it clear that in some other circumstances, for instance,
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where publication will create no new danger because the identity is already fully
known to the world, a criminal prosecution of the publisher would be pointless
and questionably constitutional. In short, a naked prohibition against publication
of intelligence identities can have both constitutional and unconstitutional appli-
cations. The lawmaker's task is to find legislative language that will confine the
prohibition to the cases in which prosecution can constitutionally proceed and
will exclude prosecution in the cases in which it cannot.
We are obliged of course to track the Constitution in any legislative endeavor.
but we must proceed with special caution where First Amendment values are at
stake. An error here can doom the entire enterprise. Under the First Amendment
the viability of a criminal statute does not depend entirely upon how it applies
in a particular case. Even if the conduct that the Government seeks to punish in
a particular case is not protected by the First Amendment, the court may ask
whether the statute is drafted so broadly that it could be applied in other cases
to reach protected speech and because of that "overbreadth" perhaps chill pro-
tected speech. If the court so finds, it may hold the statute void for overbreadth.
In other words, the possibility of an unconstitutional application may taint the
statute and prevent its use even in those cases where under a more narrowly
drawn statute the conduct of the defendant might be constitutionally punished.
While the doctrine of overbreadth is apparently now undergoing some metamor-
phosis, and under the current approach taken by the Supreme Court may not
carry the force it once had, See Broadrick v. Oklahoma, 413 U.S. 601 (1973), it
still is a doctrine of caution which we must observe.
In my view, ? 501(b) has the potential for constitutional and unconstitutional
applications. Given the current uncertainty regarding the overbreadth doctrine,
I simply do not know whether a court would find this measure so "substantially
overbroad" as to be unsuitable as a vehicle for prosecution in any and every case ;
but I would respectfully submit that there are other approaches that more clearly
fall on the safe side of the constitutional mark.
Let me compare the approach taken in ? 501(b) to the approach taken in ? 801
(a) of the Department of Justice proposal. These two proposals overlap at a num-
ber of points. The main difference between them lies in the burdens they impose
on the prosecution. Whereas ? 501(b) makes the intention of the publisher the
decisive criterion of criminal liability, ? 801 (a) focuses on the source of the infor-
mation in question. Section 501(b) requires the Government to prove that the
publisher intended to impair or impede the intelligence activities of the United
States. Section 801(a) requires the Government to prove that the publication was
based on direct or indirect access to classified information, that is, access to "in-
side" sources of information protected by the system the Government uses to
safeguard highly sensitive information in the field of foreign and military affairs.
These two criteria-the intention of the publisher and the source of the in-
formation published-are very different, and they have a different bearing upon
the central constitutional question presented by any outright prohibition against
public speech : What danger does the speech create? It may be, as Justice Holmes
once suggested, that if a speaker intends to produce harm, his intention may it-
self increase the risk that the harm will occur ; but the Supreme Court has since
taught that all the circumstances of the case must be taken into account before
the actual danger of speech can be assessed for First Amendment purposes. Speech
may be innocuous in fact-it may have no actual tendency to create a danger the
Government is entitled to prevent-even though the predilections of the Speaker
are of a different character. See Brandenburg v. Ohio. 395 U.S. 444 (1969).
This is why the question of the source of information can be important. If the
Government proves that a publication of intelligence identities was based on sen-
sitive "inside" information, it may be rather clear that the publication was harm-
ful in itself. By making the classified information available to others, the
publication can bring to pass the very danger the security system was designed
to prevent. On the other hand, if the publication was based, not on inside infor-
mation, but on information generated by research in publicly available sources,
it may be far less clear that the publisher has informed our foreign rivals of any-
thing they did not already know, even though the publisher's intentions or pred-
ilections may have been less than honorable. The source of the publication is, in
this situation, more directly relevant to the central constitutional concern of
showing harm than is the intention of the publisher.
The second difference between the two approaches falls somewhere in the range
between policy and constitutional doctrine, and is the one I stressed in my oral
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testimony. If the Government is required to focus upon the intention of the pub-
lisher in order to obtain a conviction, the temptation will be strong to rely upon
evidence of his views and opinions regarding foreign policy in general and intel-
ligence activities in particular. The problem is that much of this evidence could
involve constitutionally protected expression ; people are entitled to express oppo-
sition to the operations of our Government and to express their views vigorously
and openly in public. If a ? 501(b)-type prohibition on disclosures by private per-
sons from publicly-available sources is too broad to pass constitutional muster
without an intent requirement, the addition of an intent requirement that draws
mainly on constitutionally protected expressions of views may not help greatly
in defending against a constitutional attack based on overbreadth.
H.
Congressman Fowler asked that I comment on Mr. Floyd Abrams' testimony
concerning the constitutional question presented by ? 501(b). Mr. Abrams ex-
pressed the view that ? 501(b) is "flatly and facially unconstitutional." As I have
already said, I believe that ? 501(b) could have unconstitutional applications, but
because of present uncertainty regarding the "overbreadth" doctrine, I am sim-
ply unable to predict whether a court would find the statute so "substantially
overbroad" as to have no legal force whatever in any of the cases in which it
might apply.
I am not sure I know the precise reason for the difference between Mr. Abrams'
views and my own, but the difference may involve a very fundamental point. At
places in his testimony Mr. Abrams takes the position that even though the
United States may have power under the Constitution to punish a government
employee who discloses intelligence identities, there is no case whatever in which
it has power to punish third parties (newsmen, in particular) who receive infor-
mation about intelligence identities from government employees and publish it.
I disagree. The First Amendment is not "an absolute." There are dangers that
can justify restrictive governmental action even where private speech is involved.
'see Debs v. United States, supra; and as I have said, in the field of foreign and
military affairs the publication of some kinds of sensitive information can pre-
sent such a danger. While the previous success of the Government in maintaining
the secrecy of particular information can be highly relevant in proving that pub-
lication of the information will cause harm, I think it clear that the danger
presented by the publication of a defense secret does not evaporate as a matter
of law simply because the information is transmitted prior to publication from
one person who is employed by the Government to another (the publisher) who
is not. In my view, the rather clear implication of the opinions of a majority of
the Justices in the Pentagon Papers case, New York Times v. United States, 403
U.S. 713 (1971), is that the Constitution does permit the Government to proceed
in a proper case under a properly drafted criminal statute against a private pub-
lisher of defense secrets. Indeed, the proposal set forth in ? 801(a) of the Depa rt.
ment of Justice bill is founded upon that proposition.
III.
During the course of my testimony Congressman McClory asked about my
criticism of the "reason to know" language contained in ? 501(a) of H.R. 5615.
I asked that I be permitted to respond to his remark in writing.
My criticism of the "reason to know" language was and is based on a policy
consideration, not upon a point of law. Section 501(a) is broad enough to pro-
hibit even disclosures of indirect identifying information obtained from public
sources, so long as cumulatively the information has the effect of identifying an
intelligence officer, agent, or source. With such breadth of coverage under the
statute, I believe that as a matter of policy, grading as a felony is appropriate
only where the defendant actually knew the identifying effect his disclosure
would have.
IV.
Section 801(a) of the Department of Justice proposal prohibits the disclosure
of intelligence identities where disclosure is "based on classified information."
Congressman Fowler asked how we construe that phrase.
The phrase is not intended to describe any particular form of disclosure. It is
intended instead to focus the inquiry on the question of where the defendant ob-
tained the information he disclosed. Read in conjunction with the scienter re-
quirement regarding the source of the disclosure is intended to make the liability
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of the defendant turn upon (1) his knowledge that the Government has attempted
to prevent the disclosure of the information in question through the established
classification system, and (2) his knowledge that his disclosure will transmit
the information from an inside source to unauthorized persons. That sort of
transaction could occur in a number of different ways.
V.
Finally, Congressman Fowler asked whether ? 501(b )'s scienter requirement is
similar to the provision of the Atomic Energy Act governing communication of
atomic energy "Restricted Data". See 42 U.S.C. ? 2274. Mr. Fowler's particular
concern was whether, in prosecutions under ? 2274, the Government has encoun-
tered any difficulties of the kind that I described in my criticism of the scienter
requirement set forth in ? 501(b). Section 2274 punishes the communication of
Restricted Data where the communication is made with intent to, or with reason
to believe the data will be utilized to, "injure the United States or ... secure
an advantage to any foreign nation". H.R. 5615 would punish the publication of
any information revealing intelligence identities where the defendant intends
the publication to "impair or impede the intelligence activities of the United
States." The Government may have to show the defendant's actual knowledge of,
or at least reckless disregard of, the restricted nature of the data under ? 2274,
whereas the Government need only show negligent disregard of the identifying
impact of disclosed information under ? 2274. The scienter requirements are thus
both similar and dissimilar. But in any event, we have had very little experience
with criminal prosecutions under ? 2274. Our limited experience does not shed
much light on the kinds of problems we would encounter in prosecutions under
the standard set forth in ? 501(b) .
If the Committee has additional questions regarding the Department's views
on these important issues, I will be happy to respond to them.
ROBERT L. KEucH,
Associate Deputy Attorney General.
APPENDIX B
FLOYD ABRAMs,
New York, N.Y., February 6,1980.
Hon. ROMANO L. MAZZOLI, M.C.,
Acting Chairman, U.S. House of Representatives, Permanent Select Committee
on Intelligence, Washington, D.C.
DEAR REPRESENTATIVE MAZZOLI: During the course of my testimony on Janu-
ary 30, 1980, I was asked by Chairman Boland to comment on the draft legis-?
lation furnished earlier that day by the Department of Justice and asked, as
well, by Representative Young for my views as to what type of legislation barring
the identification of intelligence officers would be constitutional. I write for the
purpose of responding to those questions and supplementing my testimony with
respect to a few additional areas as to which questions were asked.
Any legislation in this area burdens, at least to some extent, freedom of ex-
pression ; it thus raises significant constitutional questions. The burden is least
substantial and a determination of constitutionality most likely when two prin-
ciples 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. An example I cited in response to a
question by one member of the Committee is one that I still believe is appro-
priate : it is one thing to say that disclosures by Mr. Agee which are proved
to be based upon information learned by him during the course of his service
with the CIA may, under some circumstances, be deemed criminal ; it is quite
another to say that after Mr. Agee makes his disclosures, the New York Times
or the Washington Post could be held liable for, in essence, republishing that
which Mr. Agee has already disclosed. The second guiding principle I would
urge upon the Committee is that the narrower the definition of the information
which may not be disclosed, the more likely it is that a statute containing such
a definition would be held constitutional. By way of example, a fiat ban on the
disclosure of any information which could lead to the disclosure of any CIA
employee regardless of what that employee may do or have done is far less
likely to pass constitutional muster than is a definition limited in scope so as
to bar only information about CIA operatives who use aliases or the like.
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With these background principles in mind, I offer the following thoughts
on the questions put to me by Chairman Boland and Representative Young :
First, the single piece of legislation that has thus far been introduced which
comes closest, in my view, to being constitutional is H.R. 3357. That is so
because of the deliberately limited scope of the legislation : it would make
criminal the disclosure of information identifying CIA agents by those who are
or have "been in authorized possession or control" of such information ; it
would not bar disclosure of any information by individuals not in authorized
possession of the information. However, even H.R. 3357 raises certain serious
constitutional problems. For one thing, the information the disclosure of which
is prohibited is not limited to information which identifies an agent, but also
includes information "which can lead to the identification of" an agent. Such
breadth of language may sweep in so much information as to raise significant
constitutional doubts on this ground alone. Second, H.R. 3357 contains no limita-
tion as to which employees or agents of the CIA may not be disclosed, let alone
which people who have been "associated" with the CIA may not be disclosed.
Here again, the failure to limit the categories of employees or agents itself
raises constitutional doubts as to the validity of the legislation. Third, as my
testimony urged, it seems to me important that any legislation contain some
form of "whistle blowing" defense, in situations in which the agent who is
identified is committing crimes under United States law. While I cannot advise
you that such a defense is constitutionally required, my own view is that the
failure to permit some form of defense of this sort (at least in circumstances
in which the agent whose identity has been disclosed has committed grievous
crimes under our law) would make the legislation far less desirable than would
otherwise be the case.
As for the legislation urged upon the Committee by the Department of Jus-
tice, I start with the general comment that it is, in some respects, more likely
to be held constitutional than H.R. 5615, but far less likely to be deemed lawful
than H.R. 3357-particularly with changes such as I have suggested above.
The Department of Justice draft does contain one significant improvement over
H.R. 3357. It defines the term "covert agent" in an extremely narrow fashion so
as to limit the disclosures which may not be made to the identification of
any present or former officer, employee, or source of an intelligence agency
of a member of the Armed Forces assigned to duty with an intelligence agency
(i) whose present or former relationship with the intelligence agency is pro-
tected by the maintenance of a cover or alias identity, or, in the case of a source,
is protected by the use of a clandestine means of communication or meeting to
conceal the relationship and (ii) who is serving outside the United States or has
within the last five years served outside the United States."
. I consider this denflition a signal improvement over that contained in H.R.
5615 and, of course, over the failure of H.R. 3357 to contain any definition at
all. Its addition to a bill based upon H.R. 3357 would be extremely constructive.
However, the Department of Justice draft is flawed in other ways that I
believe are irredeemable. Preliminary, it is inexplicable to me why the Depart-
ment has chosen to urge that the penalties to be imposed upon those who disclose
intelligence identities who are not government employees should be twice as
severe as those imposed on those who are government employees. The Depart-
ment's bill would thus fine an outsider up to $50,000 and imprison the outsider
for not more than 10 years for disclosure of the identity of a covert agent. while
imposing penalties of up to $25.000 and a prison term of not more than 5 years
for government employees. Entirely apart from my view, expressed above and
in my testimony, that penalties imposed upon outsiders are far less likely to be
constitutional than those imposed upon government employees, it is simply out-
landish to seek to punish outsiders with greater severity than government em-
ployees who breach their obligations.
That aside, I wish to repeat my general objection to Section 801 of the De-
partment's draft on the ground, testified to by me, that third party liability for
disclosures of this sort should not, in my view, be made illegal. It is one thing.
I think, to impose particular obligations upon agents and others in government
employ arising out of their government service: it is quite another to sweep in
the rest of the world and make criminal their disclosure of information which
may. in fact, have already been widely disseminated.
Additionally. I wish to repeat my objection to the effort of the Department
of Justice, in Mr. Beach's language. to " make it crystal clear that publication in
a newspaper or book is as much prohibited as any other form of communication".
(Testimony, p. 3). It is my view that such publication should not be made illegal
and that, indeed, Congress has frequently considered precisely such efforts and
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rejected them. In that respect, I am annexing to this letter pages 39 through 57
of the brief filed on behalf of The New York Times Company in the United States
Supreme Court in the Pentagon Papers case. In those pages, we surveyed prior
legislation which had been proposed to Congress and rejected by it that would,
indeed, have made criminal the publication of certain materials by newspapers,
books or the like. Although the issue is still not free from doubt given the fact
that Justices Douglas and White disagreed on the point in their Supreme Court
opinions in the Pentagon Papers case (403 U.S. 713, 720-722 (Douglas, J., con-
curring), 403 U.S. 737-740 & n. 9 (White, J., concurring) ), I would strongly
urge upon you that the Department should not be permitted to use this legislation
to import into law so questionable and troubling a concept.
Finally, I would like to furnish to the Committee the pages from the book,
"The Invisible Government" by Messrs. Wise and Ross relating to the American
Pilot, Allen E. Pope, who was shot down in Indonesia, to which my January 30
testimony referred. As you may recall, I urged upon you that the publication of
such material was unexceptionable-in that it would plainly do no harm ; and
that, in fact, it was useful in that it permitted the authors fully and accu-
rately to describe the events about which the book revolved. I believe the Com-
mittee will agree with me upon having the opportunity to read the relevant pages
from the book, and I therefore append them to this letter.
One again, I want to advise the Committee what a genuine pleasure it was
to have appeared before it and to have participated in the process by which the
Committee formulates law on a matter of such overriding import to the Ameri-
can people. If I can be of any further assistance, I would be most honored to
do so.
Respectfully,
(ANNEX TO ABRAMS LETTER)
III.
ON THE FACTS OF THIS CASE, THE GOVERNMENT CANNOT PREVAIL WITHOUT A
STATUTORY BASIS. NONE EXISTS
Since we have concluded that the Government's generalized claim to inherent
Presidential authority as the source of an injuction in this case cannot stand, we
maintain that on the facts, as found by Judge Gurfein in the District Court in
our case, and on a fuller record by two courts in the Washington Post case, the
Government's complaint must be dismissed without further inquiry, unless some
statutory basis can be found for it. Our contention would be that no statute
could constitutionally result in the issuance of an injuction in this case, but with-
out conceding that point, the argument in this section is that no statutory basis
for the action exists.
We have surveyed all statutory provisions which might, by their terms, pro-
hibit the dissemination (to use the broadest term) of sensitive government infor-
mation. The only statutory provision which is not, on its face, conclusively
inapplicable in this case is 18 U.S.C. ? 793 (e).'
1 Congress has enacted other statutory provisions to prohibit and punish the dissemi?
nation of information, the disclosure of which it thought sufficiently imperilled national
security to warrant that result. These include 42 U.S.C. ?? 2161 through 2166 relating
to the authority of the Atomic Energy Commission to classify and declassify "Restricted
Data" ["Restricted Data" is a term of art employed uniquely by the Atomic Energy Act].
Specifically, 42 U.S.C. ? 2162 authorizes the Atomic Energy Commission to classify certain
information. 42 U.S.C. ? 2274, subsection (a) provides penalties for a person who "com-
municates, transmits, or discloses . with intent to injure the United States or an
intent to secure an advantage to any foreign nation.
"Restricted Data." Subsection (b) of ? 2274 provides lesser penalties for one who
"communicates, transmits. or discloses" such information "with reason to believe such
data will be utilized to injure the United States or to secure an advantage to any foreign
nation.. " Other sections of Title 42 of the U.S.C. dealing with atomic energy prohibit
and punish acquisition, removal, concealment, tampering with, alteration, mutilation, or
destruction of documents incorporating "Restricted Data" and provide penalties for em-
ployees and former employees of the Atomic Energy Commission, the armed services,
contractors and licensees of the Atomic Energy Commission. 42 U.S.C. ?? 2276. 2277. Title
50 U.S.C. Appendix ? 781 (part of the National Defense Act of 1941, as amended. 55 Stat.
236) prohibits the making of any sketch or other representation of military installations
or any military equipment located on any military installation, as specified : and indeed
Congress in the National Defense Act conferred jurisdiction on federal district courts over
civil actions "to enjoin any violation" thereof. 50 U.S.C. App. ? 1152. 50 U.S.C. ? 783(h)
makes it unlawful for any officers or employees of the United States or any corporation
which is owned by the United States to communicate material which has been "classified"
by the President to any person whom that governmental employee knows or has reason
to believe is an agent or representative of any foreign government or any communist
organization.
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Although it briefly attempted to rest on 18 U.S.C. ? 793(d), the government.
having abandoned that false reliance, has cited us to no statute other than 18
U.S.C. ? 793(e). There is a faint contention that the Freedom of Information Act,
U.S.C. ? 552, has some relevance to the case in that it offered a way to the
New York Times to seek the declassification of the documents in question in this
case, and then to acquire access to them. This contention must rest on the theory
that the Freedom of Information Act was intended to provide-for the press as
well as for private individuals-an exclusive avenue toward obtaining govern-
ment information. Such a theory is palpably erroneous. Nothing is clearer
about the Freedom of Information Act than that it was meant to open further
avenues to obtaining information from the government, not to foreclose any
existing ones. If, therefore, the New York Times was entitled under the Constitu-
tion and laws to publish the documents published in this case, obtained as they
were, then the other, slower and more laborious route perhaps opened up by the
Freedom of Information Act is irrelevant. If, on the other hand, consistently
with the Constitution of the United States, it was unlawful for the New York
Times to obtain and publish the documents in question in this case, then the
Freedom of Information Act is equally irrelevant ; it could not have helped.
18 U.S.C. ? 793(e), the only statute whose possible application in this case
so much as needs to be discussed, must be approached, of course, in light of the
special requirements of clarity and precision which obtain when First Amend-
ment rights are in play.
United States v. Rumely, 345 U.S. 41 (1953) ; Watkins v. United States, 354
U.S. 178 (1957) ; Kent v. Dulles, 357 U.S. 116 (1958) ; Aptheker v. Secretary
of State, 378 U.S. 500 (1964) ; Gojack v. United States, 384 U.S. 702 (1966). "The
tradition of English-speaking freedom has depended in no small part upon the
merely procedural requirement that the state point with exactness to just that
conduct which violates the law." Masses Publishing Co. v. Patten, 244 Fed. 535
(S.D.N.Y. 1917) (L. Hand, J.), rev'd on other grounds, 246 Fed. 24 (2d Cir.
1917).'
18 U.S.C. ? 793(e) read as follows:
"(e) Whoever having unauthorized possession of, access to, or control over
any document, writing, code book, signal book, sketch, photograph, photographic
negative, blueprint, plan, map, model, instrument, appliance, or note relating to
the national defense, or information relating to the national defense which in-
formation has possessor has reason to believe could be used to the injury of the
United States or to the advantage of any foreign nation, willfully communi-
cates, delivers, transmits or causes to be communicated, delivered, or trans-
mitted, or attempts to communicate, deliver, transmit or causes to be com-
municated, delivered, or transmitted the same to any person not entitled to
receive it, or willfully retains the same and fails to deliver it to the officer or
employee of the United States entitled to receive it ;"
Judge Gurfein in dismissing the government's prayer in the District Court in
this case, held 18 U.S.C. ? 793(e) inapplicable. He relied, in part, on the notable
absence of the work "publish" "A careful reading of the section," wrote Judge
Gurfein, "would indicate that this is truly an espionage section where what is
prohibited is the secret or clandestine communication to a person not entitled
to receive it .. .
Naturally enough, we have not found, and the government has not cited, any
case beyond a single civil action'-not a prosecution or in any way an action
initiated by the government-in which ? 793 or its companion sections of the
Espionage Act have been applied to anything but an ordinary espionage situa-
tion'
218 U.S.C. ? 793(e), moreover, is a criminal statute. Its construction in this extraor-
dinary civil action can hardly be different from the construction which would be given
it if it were used to achieve its prime end, namely, imposition of the criminal sanction.
Criminal statutes also receive close and narrow readings. United States v. Sullivan, 332
U.S. 689 (1948) : Winters v. New York. 333 U.S. 507 (1948) : Lanzetta v. New Jersey,
306 U.S. 451 (1939) ; Connally v. General Construction Co.. 269 U.S. 385 (1926).
'Dubin v. United States, 289 F.2d 651 (Ct. of Claims 1961) (a civil action brought
by a private citizen to recover the fair market value of ra"ar eruipme"t purchased as
"surplus" which the Government reclaimed under an assertion that said devices were
"classified" and mistakenly sold for sur"lus. )
* See Garin v. United States. 312 U.S. 19 (1941) ; Boeckenhaupt v. U.S.. 392 F.2d 24
(4th Cir.), cert. denied, 393 U.S. 896 (1968) ; U.S. v. Rosenberg. 191) F.2d 582 (2d 1952)
cert. denied, 344 U.S. 838 (1952) (Stay by Douglas T. vacated. 346 U.S. 273 (1953) :
U.S. v. Drummond, supra, and U.S. v. Butenko, 384 F.2d 554 (3rd Cir. 1967), vacated
sub. nom. Alderman v. U.S., 165 (1969).
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The scheme of the Espionage Act as a whole and its legislative history both
confirm Judge Gurfein's determination that publishing was not meant to be
covered by Section 793(e).' The strikiug fact is, as Judge Gurfein pointed out,
that when Congress wanted to procribe the act of publishing as well as com-
municating, delivering or transmitting, it knew how to do so and insisted on
doing it with precision. Thus, when Congress dealt in Section 794 with the highly
dangerous act of revealing to the enemy, in war time, information on troop
movements and dispositions, on ships, aircraft and war materials, on opera-
tions, plans, fortifications and other [which would be construed to mean simi-
lar] information relating to public defense, Congress spoke of whoever, in time
of war, "collects, records, publishes, or communicates." (Italic supplied) Again,
when in Section 797 Congress dealt with special miltary and naval installations
so denominated by the President, Congress spoke of "whoever reproduces, pub-
lishes, sells, or gives away any photograph, sketch, picture," etc. (Italic sup-
plied) Finally, when in Section 798 Congress defined and listed, and then
punished the disclosure of, four categories of classified information, having to
do with codes and cryptography, it spoke of whoever "knowingly and willfully
communicates, furnishes, transmits, or otherwise makes available to an un-
authorized person, or publishes...." (Italic supplied)
In the scheme of the Espionage Act, the terms communicating, furnishing,
making available, transmitting and, on the rare occasions when it appears.
publishing. are used with care. When Congress wished to cover the latter, it
named it. And under a Constitution that includes a First Amendment, which
in turn places the act of publishing to the people in a specially protected cate-
gory, it is natural for a legislative body to make nice distinctions between words
(e.g. communicate, transmit) aptly characterizing the ordinary espionage trans-
action, and the term which describes the activities of those who issue to the
public its daily newspapers, its books, and, by extension. its radio and TV
broadcasts. And it is doubly natural, given the First Amendment, for Congress
to have used the word "publish" sparingly, and only when it thought it crucial.
All this the legislative history noted by Judge Gurfein amply demonstrates.
In the extended debates in the first session of the 65th Congress in 1917 on
the predecessor espionage act to present Sections 793 and 794 of Title 18 U.S.C.,
both the House bill (H.R. 291), which ultimately was enacted as Sections 31,
32, 34 and 36 of Title 50 U.S.C.,' and the parallel (but more broadly drawn)
Senate Bill (S. 2), contained provisions empowering the President in time of
war or threat of war to directly prohibit by proclamation the publication of
inf. rmation relating to national defense which might be useful to the enemy.
The provision in H.R. 291 was as follows :
"SEc. 4. During any national emergency resulting from a war to which the
United States is a party, or from threat of such a war, the President may, by
proclamation, prohibit the publishing or communicating of. or the attempting
to publish or communicate any information relating to the national defense
which, in his judgment, is of such character that it is or might be useful to the
enemy. Whoever violates any such prohibition shall be punished by a fine of not
more than $10.000 or by imprisonment for not more than 10 years, or both :
Provided, That nothing in this section shall be construed to limit or restrict
any discussion, comment, or criticism of the acts or policies of the Government
or its representatives or the publication of the same." (55 Cong. Rec. 1763)
E This is not to say that, as 18 U.S.C. ? 1717 assumes, it is not possible for a newspaper
to violate other subsections of Section 793 in the some fashion as on individual or an
entity of any sort is capable of violating Section 793. Thus presumably if a newspaper
violates subsection (b) of Section 793 by taking or copying a photograph or a map, or
an appliance. or indeed a document connected with the national defense, for the purpose nformation
to belie
reason
t It and
abo
e that the is tothe ain usedito the injury ofuthe UnitedwitStatesh It can then becomeva publicationfu der i18
news-
similar effect violation
viola a subsection (c) ofsS ctiono793^Butithe consequences
parer could with which
would only be that it becomes nonmailable. 18 U.S.C. 11717 is drawn from Title 12
of the original Espionage Act of 1917. As we shall see, infra. Congress at that time ex-
plicitly rejected a proposal for censorship of newspapers on the ground that it would he
unconstitutional. Congress at the time believed, however, that it could consistently
with the First Amendment exclude newsnapers from the malls. and that was what
Congress did. Section 1717 and its legislative history further confirm the inapplicability
of 18 U.S.C. ? 793 (e) as a source of authority to censor.
" As Judge Gurfein stated : "The government does not contend. nor do the facts indicate,
17981 the type of classified
that the publication specifically of prothe dociiments In question hibited by the Congress [in IS would disclose
Information 7 Act of June 15, 1917, ch. 30, Title I. 111, 2, 4, 8, 40 Stat. 217, 218, 219.
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Since war had already been declared on Germany, Congress was under great
pressure to grant whatever emergency powers the executive requested. Yet
Congress resisted the censorship proposal. Senator Ashurst of Arizona, among
others. spoke at length, and with present relevance, on the question of censor-
ship, even if his more general First Amendment views have a somewhat quaint
sound to our ears :
"Mr. AsnuasT. Mr. President, I have submitted an amendment of Chapter II
of the pending bill because I am unable to support that chapter in its present
form. I am opposed to a censorship of the press as we have come to know that
expression, and I oppose it on two grounds-upon the ground of public policy
and upon the ground of constitutionality. I shall discuss the present chapter,
reviewing both aspects of the same as they present themselves to me; that is,
from the standpoint of public policy and from the standpoint of its
constitutionality. .
"What does 'freedom of the press' mean? It is amazing to note the amount
of loose talk-not in the Senate, but throughout the country and in the news-
papers themselves-as to what is 'freedom of the press' as used in the Con-
stitution of the United States. The average citizen of this Republic, the ordinary
publisher in our country who is not a lawyer, thinks that `freedom of the press'
means the right to publish his sentiments just as he pleases. In a large sense,
that may be true; but in a legalistic sense, and from a constitutional standpoint,
that is not entirely accurate. `Freedom of the press' means simply, solely, and
only the right to be free from a precensorship, the right to be free from the
restraints of a censor. In other words, under the Constitution as amended by
amendment. No. 1, 'fredom of the press' means nothing except that the citizen
is guaranteed that he may publish whatever he sees fit and not be subjected
to pains and penalties because he did not consult the censor before doing so. The
citizen is left to publish just what he pleases, and must take his chances before
a court of his country as to whether or not he has published anything libelous
or anything that may bring any human being to disrepute or ridicule, or whether
he has published anything of a treasonable or obscene nature. I undertake to
say upon the floor of the Senate that any sort of censorship which even the
necessities of war may apparently cast upon us would not be in keeping with
the Constitution of the United States." 55 Cong. Rec. 2004 (65th Cong., 1st Sess.
1917)
On May 4, 1917. Section 4 of Title I of H.R. 291, quoted above, was stricken
in the House. Id. at 1808. The bill passed without it.
By the Act of May 16, 1918, Congress amended the Espionage Act of 1917 so as
could be clearer than that Congress was aware of it, and of its significance.
which Abrams v. United Staten, 250 U.S. 616 (1919), of unhappy memory, was
in part decided. See also Pierce v. United States, 252 U.S. 239 (1920) ; Schaefer
V. United States, 251 U.S. 466 (1920). In 1921, the 1918 amendment was rather
resoundingly repealed. 51 Stat. 1359 (1921).
When, in 1953. it enacted the second of the two sections numbered 798 in Title
18, continuing in effect the wartime penalties of Section 794, Congress had be-
fore it a report from a Senate committee which analyzed some of the sections
we are concerned with. The committee pointed out that the prohibition of Sec-
tion 794 on gathering or publishing certain information with intent to commu-
nicate it to the enemy could be invoked only in time of war. However, the com-
mittee pointed out that Section 793 of Title 18 prohibits "similar acts of gather-
ing or communicating defense information at any time (in wartime or peace-
time), under penalty of a fine ... or imprisonment ... or both." S. Rep. No.
409, 83rd Cong., 1st Sess. 2 (1953). (Italics supplied) The committee thus care-
fully noted and brought to the attention of Congress the differences between the
two sections, and the omission in Section 793 of the act of publishing, although
"similar acts of gathering or communicating" were covered. The committee did
not suggest that Congress supply this omission, and Congress did not. But nothing
could be clearer than that Congress was aware of it and of its significance.
What the committee did suggest, and what Congress did do, was to continue in
effect the wartime penalties of section 194-which does punish publishing.
The omission of the word "publish" in section 793, and the fact, therefore, that
newspapers were not covered by it, continued to be noticei in Congress. In 1957,
the Senate had before it S. 2417, introduced June 27, 1957, by Senator Cotton (for
himself and Senator Stennis), expressly to implement certain of the recommen-
dations of the Commission on Government Security for revision, inter alia, of
the espionage laws. (85th Cong., 1st Sess., 103 Cong. Rec. 10447). The Commission
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specifically focused on the problem of unauthorized publication of classified infor-
mation as being not covered by the Espionage Act :
"The Commission found to its dismay that one frustrating aspect of this overall
security problem is the frequent unauthorized disclosure without subversive
intent of classified information affecting national security. Several instances
were noted where information emanating from the Department of Defense, and
subsequently determined to have been classified, has found its way through
various media into the public domain, when in deference to the interests of
national security more restraint should have been exercised before dissemination.
Airplane journals, scientific periodicals, and even the daily newspaper have fea-
tured articles containing information and other data which should have been
deleted in whole or in part for security reasons.
"In many instances the chief culprits responsible for any unauthorized publica-
tion of classified material are persons quite removed from Government service
and therefore not amenable to applicable criminal statutes or other civil penalties.
Congressional inaction in this particular area can be traced to the genuine fear
of imposing undue censorship upon the bulk of information flowing from the
various governmental agencies, and which the American people, for the most part,
have the right to know. Any statute designed to correct this difficulty must neces-
sarily minimize constitutional objections by maintaining the proper balance
between the guarantee of the first amendment, on one hand, and reduced measures
to establish a needed safeguard against any real danger to our national security."
(Report of the United States Commission on Government Security 619-20 (1957) )
That the Commission's Bill, S. 2418, was intended to extend the applicability
of Section 793 to newsmen among others was well-understood. See 103 Cong.
Rec. 10449 (85th Cong., 1st Sess. 1957). The bill was, of course, not acted
upon, but it demonstrates yet again that until the present action against
The New York Times, no one supposed that Congress, despite the First Amend-
ment, and in the teeth of common English usage, had meant to cover the act of
publishing by using such words as "communicate, deliver or transmit." The omis-
sion of the word "publish" in Section 793 was noted.
Judge Gurfein also held that under Gorin v. United States, 312 U.S. 19 (1941),
793(e) could be constitutionally applied, if at all, only upon a finding that a
violation of it, in addition to being willful, was committed with knowledge
that the information involved "could be used to the injury of the United States
or to the advantage of any foreign nation." 8 Otherwise, the operative phrase
of the statute "relating to the national defense," would be unconstitutionally
vague. It may be that in the present ? 793(e), as compared to the slightly differ-
ent predecessor section involved in Gorin, supra, the clause "reason to believe
[that it] could be used etc...." modifies only the word "information," not the
words "any document, writing, code book . . ." Scienter could not then be
imputed as an element in the phrase "relating to the national defense" so far
as it relates to documents and writings which under the Government's allega-
tions are in issue in this case. Under either construction, the statute is inapplica-
ble. Without scienter, Gorin v. United States indicates that it is too vague to be
applied. If, on the other hand, scienter is held to be required, then, as Judge Gur-
fein held, the Government must fail because it is impossible to find on this record
that the New York Times has "reason to believe" that the documents "could be
used to the injury of the United States or to the advantage of any foreign nation."
As our uncontroverted affidavits show, the New York Times believed-as
Judge Gurfein was later to hold-that it is dealing with historical materials
running back several years, all at least three, and some many decades. A reason
to surmise injury to the United States or advantage to a foreign nation could
be imputed to the New York Times on the facts of this record only by accepting
the preposterous and plainly unconstitutional construction that any discomfiture
caused the government of the United States by political opposition at home
qualifies as an injury to the United States and an advantage to a foreign nation
within the meaning of ? 793 (e).
Quite aside from any requirement of scienter, and all the more so if such a
requirement is applicable, the concept of documents or information "relating to
the national defense" must be restricted to a meaning that can fairly be ex-
pected to have been in the the minds of, or at least accessible to, persons situ-
ated as was the New York Times in this case. We believe the concept is uncon-
8 The United States Attorney observed that it was the Government's "assumption that
the Times acted in complete good faith. . . (Tr. 36). That being so, there could be no
violation of 18 U.S.C. 1793 (e).
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stitutionally vague if it is read to go beyond both decided cases that have con-
strued it in the past, and the common understanding exhibited in the practices
of newspapers and publishers of other materials.
At no time until the Government's motion was filed in the District Court on
June 15 has the Government used this section to move criminally or civilly
against the publication-not communication or transmittal or delivery, but
publication-of any materials or information in a newspaper or magazine or
book or any other medium addressed internally within the United States to the
American public. This has been the unbroken administrative practice, which
we submit is conclusive against the attempted application of section 793 in this
case. Cf., Poe v. Ullman, 367 U.S. 497 (1961).
There might be some question about the significance of the previously unbroken
administrative practice if it were true that no or few recent occasions had arisen,
or come to the Government's attention, which presented the need for an appli-
cation of the statute (if such an application were thought possible), beyond the
ordinary espionage situation. But the overwhelming fact, demonstrated by our
uncontradicted affidavits (e.g., Frankel affidavit ?? 15, 16, 20)? is that numerous
publications similar and even precisely equivalent to the publications made
and still contemplated by the New York Times have been common in news-
papers, magazines and books in the United States for many years.
The unbroken practice on the part of the government of moving only against
what may properly be defined as espionage has prevailed, then, in a context of
public disclosure in which the supposed offense now charged to the New York
Times under Section 793(e) was common occurrence in newspapers, maga-
zines and books published to the American people.10 This is the context of
public discourse in which memoirists who formerly held high government office
and various journalists and others have published books going over the same
grounds as the publications of the New York Times, and using in part materials
included in the documents now in possession of the New York Times."
It may be contended that Attorney General Mitchell's telegram to the New
York Times of June 14th authoritatively defines the phrase "relating to the
national defense" for purposes of this case, and cures its vagueness. Among
other difficulties with this contention, the decisive one is that it would repose
untrammeled discretion in the Attorney General or in the Secretary of Defense
or in some other officers of the Government to define the terms of a statute
which imposes criminal penalties, and which in this unprecedented instance
is being used to impose a prior restraint upon a newspaper. Such a delegation
would without doubt be unconstitutional under Kent v. Dulles, supra ; Rumely
v. United States, supra ; Watkins v. United States, supra ; Sweezy v. New Hamp-
shire, 354 U.S. 234 (1957). See also, Schechter Poultry Company v. United States,
295 U.S. 495 (1935).
There is no warrant for defining the concept, "relating to the national defense,"
as coterminous with the concept of classified information. Nor would it be
possible in this fashion to cure the vagueness of the phrase as applied in this
case, since no expectation can be imputed to the defendant that any classified
material, no matter what its nature, would be considered to relate to the national
defense within the meaning of this statute. It is notorious that numerous papers
having no proper relation to the national defense, or no longer having any, and
in no sense dangerous or injurious to the national security if published, are or
remain nevertheless classified, despite the perhaps more restrictive criteria for
classification contained in Executive Order No. 10501 3 C.F.R. 280 (1970). The
late Professor Chafee wrote :
0 See also affidavit of Walter Rugaber, ? 12 and annexed exhibits ; affidavit of Hedrick
Smith, ? 2 and annexed exhibits, affidavit of John W. Finney, IF 2 and annexed exhibits ;
affidavit of Tad Szulc, ? 2 and annexed exhibits ; and affidavit of William Beecher, ? 2 and
annexed exhibits.
10 One-time newspaper (but not book) publications are difficult to move against by
seeking an injunction. But ours is not the first relevant serial publication. For example,
the series by David Kraslow and Stuart Loory of the Los Angeles Times entitled "The
Secret Search For Peace in Vietnam." to this day the most extensive newspaper (end
book account of the diplomacy surrounding the War.
11 See Frankel affidavit ?? 27. 2R: see also Matthew B. Ridgeway, The Korean War. pp.
267. 268 (containing texts of letter of instruction to air and naval forces of the United
States; Theodore C. Sorenson, "Kennedy," n. 612 (relating to the "missile gap"), p. 642
(relating to U.S. Intervention in Laos), p. 659 (paranhrasing cable relating to overthrow
of Diem). p. 712 (relating to Cuban missile crises) ; John Bartlow Martin. "Overtaken by
Events," p. 757 (revealing the author's sources of information to he private notes and
files accumulated while in government service). p. 235 (paraphrasing a "top priority-
top secret" cable on communist involvement in Dominican Republic in 1965).
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"Of course, state secrets are nothing new. Military information was always
guarded from the enemy, and bureaucrats have often invoked public safety as a
protection from criticism. What is significant is the enormous recent expansion
of the subjects which officials are seeking to hide from publication until they
give the signal. If persuasion fails to prevent leaks, they are tempted to use
threats. The result may be a hush-hush attitude, likely to extend beyond the
real public need for silence . . . A direct consequence of secrecy in the ordinary
press may be great activity of the subsidiary press in disseminating the concealed
material, and this is more dangerous than frank discussion in the general press
Too often we get as gossip what ought to reach us as regular news." Chafee,
Government and Mass Communications 13, 14 (Archon ed. 1965).
It may be true, and it does not in any event affect our position in this case,
that as was held in Epstein v. Resor, 296 F. Supp. 214 (D.C.N.D. Calif. 19(9),
aff'd, 421 F.2d 930, cert. denied, 398 U.S. 965 (1970), no elaborate inquiry into
the justification for a classification will be undertaken by a court in response
to a suit by a private individual seeking to have the Government declassify
material so that the plaintiff can obtain it under Section 3 of the Administrative
Procedure Act, 5 U.S.C. ? 552. That statute by its terms does not apply to mate-
rials kept secret in the interest of national defense or foreign policy. The scope
of review of the Epstein case may, perhaps, be acceptable when the classification
comes under attack in a suit by a plaintiff wanting to Obtain material from the
Government-that is one thing. But there is a vast different when application
to a private person of a criminal statute is attempted, or when as here the Gov-
ernment seeks to impose a prior restraint on publication. Under these conditions,
the judicial function in passing on criteria for classification is infinitely more
crucial. Yet, of course, even In-the Epstein case, as we have noted, the Court did
not accept without question and without judicial review any classification
simply because it was placed on a document in the regular order by a govern-
ment official. The Court undertook rather to make an independent judicial
inquiry at least whether a classification is "clearly arbitrary and unsupportable."
Other cases in addition to Epstein conclusively refute any assertion that the
question of whether a classification is valid is a political question, and that
the act of classification is an exercise of executive discretion not subject to
judicial review. To the contrary, as it affects private rights, the act of classifying
a document, like other even more serious exercises of executive discretion relat-
ing to the internal and external security of the country, is subject to judicial
review, even as the ultimate act of declaring martial law is under our system
of government subject to judicial review.12 Sterling v. Constantin, 287 U.S. 378
(1932) ; Duncan v. Kahanamoku, 327 U.S. 304, 336, (1946), (Stone, C. 3., con-
curring). In the United States v. Drummond, 354 F.2d 132 (2d Cir. 1965), cert.
den. 384 U.S. 1013 (1966), which affirmed a conviction under the Federal Espio-
nage Act, .the court held that the classification of certain documents as "Top
Secret" or as "containing information affecting the national security of the
United States" was not sufficient for a conviction. Rather, the Second Circuit
ruled that the defendant had a "right to a jury determination on the character
of the documents," pointing out that the trial court had properly charged the
jury that : "Whether any given document relates to the national defense of the
United States is a question of fact for you to decide. It is not a question of how
they were marked." Id. at 152.
The Government cannot rest, in this action, on any statutory authority.
APPENDIX C
TESTIMONY OF SENATOR LLOYD BENTSEN
Mr. Chairman, it is indeed a pleasure to be here today. In 1975 I first intro-
duced my bill to protect the identities of intelligence personnel. Recent Soviet
aggression, and instability in other trouble spots around the world, demonstrates
more graphically than ever the need for strong and effective intelligence.
12 A somewhat analogous situation is the assertion by the Government of a privilege not
to disclose classified information demanded by a party in a suit to which the government
is also a party. This privilege was honored in narrowly defined circumstances in United
States v. Reynolds, 345 U.S. 1 (1953). partly on the ground that no unavoidable necessity
was shown for the privileged information. But the court noted that "[jludicial control
over the evidence in a case cannot he adjudicated to the caprice of executive officers." 345
U.S. at 9-10. Cf.. Proposed Rule of Evidence for the United States Courts and Magistrates
Rule 509 "Military and State Secrets." subparagraph (e) 91 S. Ct. 61-64 (Apr. 15, 1971).
53 (19privilege" is also carefully circumscribed. See Rovario V.
United States, government "Informer
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In this Congress we have an opportunity to consider and hopefully enact
legislation to protect identities, to tighten the Freedom of Information Act, to
provide death gratuties, and to modify Hughes-Ryan. We can do this in a manner
consistent with National Security, and with our desire to provide clear safe-
guards against the abuses of the past.
Today we consider identities protection. These hearings provide a vital forum
for considering the various legislative proposals, and for weighing and evalu-
ating the objections raised. My bill, S. 191, is a narrow bill targeted at former
or current government employees who break their trust and reveal the identities
of acting intelligence personnel.
Other proposals would cast a wider net. I, like this subcommittee, will consider
every argument raised for and against every proposal. Rather than hardening
positions, I would hope these hearings would present a free trade in ideas, a
first step towards a consensus.
Mr. Chairman, since George Washington first sent Americans behind the
British lines, we have understood the crucial need for intelligence information.
If we anticipate crisis we can prevent them or be better able to cope. We live
today in a dangerous world, facing a Soviet Union that has contempt for human
rights, basic freedoms, national sovereignty and international law. Our intelli-
gence capability must be strong and effective. Our intelligence activity must be
consistent with our national ideals. We can stand strong, and stand for some-
thing important.
Individuals who undertake dangerous intelligence work deserve our support and
our appreciation. They serve our country at great personal risk. They perform
vital tasks. The very anonymity of their profession mandates that their work is
often unheralded, their failures often criticized, their successes generally
unknown.
Those who perform intelligence work undertake a sober responsibility. They
have access to the most sensitive information. They know the identities of officers
who could be dead if exposed. They have inside knowledge of operations that
could be devastated if revealed. They deal with foreign sources who could be
deterred by fear of disloyalty or leaks.
Those involved in this work accept a trust, the trust of confidentiality, a trust
others have honored to protect them. With life and death at stake, with the
national interest in the balance, they pledge, on their honor, to serve their
country and protect their colleagues. Those who violate this trust commit one
of the most serious crimes imaginable, and they should be forewarned that they
will be punished accordingly.
In recent years a small band of renegade former employees has embarked on
a crusade to destroy our intelligence capability. At forums such as the youth
festival in Havana, they declare war against our intelligence service. Let's be
clear about what they are doing: they threaten the lives of their colleagues, who
are vulnerable to terrorists or foreign powers. They erode our national security,
which is dependent on sound information that can only be gathered by live
personnel.
Wittingly or not, they serve the interest of those who oppose the United
States.
Wittingly or not, they serve the interest of those most opposed to freedom and
human rights. They serve those whose goal is totalitarian, whose method is the
Gulag, whose policy is contempt for international law.
That's why my bill singles out those who have broken the most basic trust. I
suggest if they had revealed the names of Soviet KGB agents, they might not be
alive today to continue their self-righteous and indefensible proclamations.
They should be punished according to the protections and duties of American
due process of law, a due process, I might add, that is not available in those
nations most benefitted by their reprehensible conduct.
Mr. Chairman, at the very least, identities protection must be enacted in this
Congress. Hughes-Ryan should be changed in this Congress. We must maintain
vigorous oversight. We must protect against abuses. This can be accomplished by
having the House and Senate Intelligence committees perform vigorous over-
sight over covert actions. There is no excuse for having eight congressional
committees, including some two hundred legislators and their staffs, with an
oversight function so cumbersome that it severely and unnecessarily hampers
effective covert actions.
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We should tighten up the freedom of information act in this Congress, to
protect our intelligence capability from hostile powers who would threaten our
Nation by abusing our laws. We should pass a bill I have introduced to provide
death benefits for dependents of intelligence personnel killed in the line of
duty, in this Congress. This is the least we owe those who serve us. This is an
important message of support as well as an expression of basic fairness.
I believe that my identities protection bill can win almost unanimous support
in this Congress. I think it should be enacted this year. I will be carefully
following the actions of the intelligence committees, and the testimony re-
ceived. I look forward to congressional action in the immediate future.
Mr Chairman, in recent years our intelligence service has had difficult days.
We have seen abuses that must never be tolerated. We have seen violations of
civil rights. and actions that were clearly against our national ideals and our
national interest. We must put those days behind us, and stand vigilant in our
determination that they will never be relived. There can be no retreat from
the principles upon which this Nation was founded. It is these principles, as
much as our strong economy and our strong defense and the will of our people,
that makes this a great Nation.
We can live up to these ideals, and we can have a strong and effective intel-
ligence capability. We need not sacrifice national security or national principle.
We must enact the changes needed to improve our intelligence capability ; we
must maintain those safeguards necessary to insure that past abuses are not
repeated. I look forward to working with your subcommittee, and I thank all
witnesses for expressing their views. No task can be more important in this
dangerous world.
APPENDIX D
[H.R. 3356, 96th Congress, 1st session]
of certain employees of the Central
A Bill To protect the confidentiality the Identities Agency
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That (a) whoever, being or having been in
authorized possession or control of any information which identifies or which
can lead to the identification of any individual or entity as being or having been
an employee or agent of, or having been associated with, the Central Intelligence
Agency and such information has been specifically designated by an Executive
order of the President as requiring a specific degree of protection, willfully
discloses such information to any person not authorized to receive such informa-
tion shall be fined not more than $10.000 or imprisoned not more than ten years,
or both.
(b) Prosecution under subsection (a) shall be barred if any information
described in subsection (a) is communicated to-
(1) a regularly constituted committee or subcommittee of the Senate or
the House of Representatives, or any joint committee of the Congress, which
has oversight jurisdiction of intelligence activities of the United States,
(2) a judge of any United States district court pursuant to an order of
such court issued upon a showing that production of such information is
reasonably needed for any judicial proceeding, and
(3) any Federal law enforcement officer, if application is made by the
Attorney General of the United States, or any Assistant Attorney General
specifically designated by the Attorney General, to the judge of any United
States district court and such judge (A) makes a finding that the disclosure
of any information described in the first section is essential to the investiga-
tion of a possible crime, and (B) issues an order authorizing the disclosure
of such information to such law enforcement officer.
SEC. 2. As used in this Act. the term "authorized" means the authority to have
access to, to receive. to possess, or to control information as a result of the provi-
sions of a Federal statute or an Executive order of the President.
SEc. 3. A person not authorized to receive information described in the first
section of this Act shall not be subject to prosecution as an accomplice within
the meaning of section 2 or 3 of title 18, United States Code, or to prosecution
for conspiracy to commit an offense described in the first section of this Act.
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APPENDIX E
[H.R. 3357, 96th Congress, 1st session]
A Bill To protect the confidentiality of the identities of certain employees of the
Central Intelligence Agency
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That (a) whoever, being or having been in
authorized possession or control of any information which identifies or which
can lead to the identification of any individual or entity as being or having
been an employee or agent of, or having been associated with, the Central Intel-
ligence Agency and such information has been specifically designated by an
Executive order of the President as requiring a specific degree of protection,
willfully discloses such information to any person not authorized to receive
such information shall be fined not more than $10,000 or imprisoned not more
than ten years, or both.
(b) Prosecution under subsection (a) shall be barred if any information de-
scribed in subsection (a) is communicated to-
(1) a regularly constituted committee or subcommittee of the Senate or the
House of Representatives, or any joint committee of the Congress, which has
oversight jurisdiction of intelligence activities of the United States,
(2) a judge of any United States district court pursuant to an order of
such court issued upon a showing that production of such information is
reasonably needed for any judicial proceeding, and
(3) any Federal law enforcement officer, if application is made by the
Attorney General of the United States, or any Assistant Attorney General
specifically designated by the Attorney General, to the judge of any United
States district court and such judge (A) makes a finding that the disclosure
of any information described in the first section is essential to the investiga-
tion of a possible crime, and (B) issues an order authorizing the disclosure
of such information to such law enforcement officer.
SEC. 2. As used in this Act, the term "authorized" means the authority to have
access to, to receive, to possess, or to control information as a result of the pro-
visions of a Federal statute or an Executive order of the President.
SEC. 3. A person not authorized to receive information described in the first
section of this Act shall not be subject to prosecution as an accomplice within
the meaning of section 2 or 3 of title 18, United States Code, or to prosecution
for conspiracy to commit an offense described in the first section of this Act.
APPENDIX F
[H.R. 3496, 96th Congress, 1st session]
A bill to protect the confidentiality of the identities of certain employees of the
Central Intelligence Agency
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That (a) whoever, being or having been in
authorized possession or control of any information which identifies or which
can lead to the identification of any individual or entity as being or having been
an employee or agent of, or having been associated with, the Central Intelligence
Agency and such information has been specifically designated by an Executive
order of the President as requiring a specific degree of protection, willfully
discloses such information to any person not authorized to receive such informa-
tion shall be fined not more than $10,000 or imprisoned not more than ten years,
or both.
(b) Prosecution under subsection (a) shall be barred if any information
described in subsection (a) is communicated to-
(1) a regularly constituted committee or subcommittee of the Senate or
the House of Representatives, or any joint committee of the Congress, which
has oversight jurisdiction of intelligence activities of the United States,
(2) a judge of any United States district court pursuant to an order of
such court issued upon a showing that production of such information is
reasonably needed for any judicial proceeding, and
(3) any Federal law enforcement officer, if application is made by the
Attorney General of the United States, or any Assistant Attorney General
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specifically designated by the Attorney General, to the judge of any United
States district court and such judge (A) makes a finding that the disclosure
of any information described in the first section is essential to the Investiga-
tion of a possible crime, and (B) Issues an order authorizing the disclosure
of such information to such law enforcement officer.
SEC. 2. As used in this Act, the term "authorized" means the authority to have
access to, to receive, to possess, or to control information as a result of the pro-
visions of a Federal statute or an Executive order of the President.
SEC. 3. A person not authorized to receive information described in the first
section of this Act shall not be subject to prosecution as an accomplice within the
meaning of section 2 or 3 of title 18, United States Code, or to prosecution for
conspiracy to commit an offense described in the first section of this Act.
[H.R. 3762, 96th Congress. 1st session]
A bill to amend title 18, United States Code, to prohibit the unauthorized disclosure of
information concerning individuals engaged or assistnig in foreign intelligence or
counterintelligence activities, and for other purposes
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That this Act may be cited as the "Intelligence
Officer Identity Protection Act of 1979".
SEC. 2. Chapter 37 of title 18, United States Code, is amended by adding at the
end thereof the following new section :
800. Unauthorized disclosure of information concerning individuals engaged
or assisting in foreign intelligence or counterintelligence activities
" (a) Whoever, being or having been an officer or employee of the United States
or member of the uniformed services of the United States, knowingly discloses
information identifying any individual as associated with a department or agency
of the United States engaged in foreign intelligence or counterintelligence ac-
tivities, which association is classified and has not been publicly acknowledged
by the United States, to anyone not authorized to receive it, shall be imprisoned
for not more than ten years or fined not more than $100,000, or both.
"(b) Whoever, having or having had lawful access to information identifying
individuals as associated with a department or agency of the United States
engaged in foreign intelligence or counterintelligence activities, knowingly dis-
closes information concerning any such association which is classified and has not
been publicly acknowledged by the United States, to anyone not authorized to
receive it, shall be imprisoned for not more than ten years or fined not more than
$100,000, or both.
"(c) Whoever knowingly discloses information identifying any individual as
associated with a department or agency of the United States engaged in foreign
intelligence or counterintelligence activities, which association is classified and
has not been publicly acknowledged by the United States, to anyone not author-
ized to receive it, where such disclosure prejudices the safety or well-being of
the individual identified, or damages the foreign intelligence or counterintelli-
gence efforts of the United States, shall be imprisoned for not more than ten
years or fined not more than $100,000, or both.
"(d) Whoever falsely asserts, publishes, or otherwise claims that any indi-
vidual is an officer or employee of a department or agency of the United States
engaged in foreign intelligence or counterintelligence activities, where such as-
sertion, publication, or claim prejudices the safety or well-being of any officer,
employee, or citizen of the United States or adversely affects the foreign affairs
functions of the United States, shall be imprisoned for not more than five years
or fined not more than $50,000, or both.
"(e) Whenever, in the judgment of the head of any department or agency
engaged in foreign intelligence or counterintelligence activities, any person is
about to engage in conduct that would constitute a violation of this Act, the
Attorney General, on behalf of the United States, may make application to an
appropriate United States district court for an order enjoining such conduct.
Upon a showing that the safety or well-being of any officer, employee, or citizen
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154
of the United States would likely be jeopardized or that irreparable damage to
United States foreign intelligence or counterintelligence activities or foreign
affairs functions would be likely to result if such conduct is carried out, a perma-
nent or temporary injunction, restraining order, or other order may be granted.
Any proceeding conducted by a court under this subsection for the purpose of
determining whether any information constitutes the type of information de-
scribed in this Act shall be held in camera.
"(f) No person other than a person described in subsections (a) and (b) of
this Act shall be subject to prosecution as an accomplice or accessory within
the meaning of section 2 or 3 of title 18, United States Code, to the offenses pro-
scribed by subsections (a) and (b) or to prosecution for conspiracy to commit
such offenses.
"(g) As used in this Act :
"(1) `Authorized' means determined to have authority, right, or per-
mission pursuant to the provisions of statute, Executive order, directive
of the head of any department or agency engaged in foreign intelligence or
counterintelligence activities, order of a judge of any United States district
court, or United States Senate or House of Representatives resolution which
assigns primary responsibility for the oversight of intelligence activities.
"(2) `Discloses' means to communicate, provide, impart, transmit, transfer.
convey, publish, or otherwise make available to any person.
"(3) `Associated with' means having a present or former employment,
contractual, or other cooperative relationship.
"(4) `Lawful access' means the opportunity to know, receive, possess, or
control pursuant to the provisions of a statute, Executive order, directive of
the head of any department or agency engaged in foreign intelligence or
counterintelligence activities, order of a judge of any United States district
court, or United States Senate or House of Representatives resolution which
assigns primary responsibility for oversight of intelligence activities.
"(5) `Classified' means designated and clearly marked or represented
pursuant to the provisions of a statute or Executive order or rule of regula-
tion issued pursuant thereto as information requiring protection against
unauthorized disclosure for reasons of national security.
"(6) The words `officer,' `employee.' and `uniformed services' shall have
the same meaning as in title V, United States Code, sections 2104, 2105, and
2101, respectively.".
[H.R. 4291, 96th Congress, 1st session]
A bill to enhance United States intelligence collecting capabilities by prohibiting the un-
authorized disclosure of information concerning individuals engaged or assisting in
foreign intelligence or counterintelligence activities, and for other purposes
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled,
SHORT TITLE
SECTION 1. This Act may be cited as the "Intelligence Agents Protection Act
of 1979".
UNAUTHORIZED DISCLOSURE OF INFORMATION CONCERNING INDIVIDUALS ENGAGED OR
ASSISTING IN FOREIGN INTELLIGENCE OR COUNTERINTELLIGENCE ACTIVITIES
SEC. 2. (a) Whoever knowingly and willingly discloses to an unauthorized
party information identifying an individual engaged in foreign intelligence or
counterintelligence activities for the United States Government, whose associa-
tion with a department or agency of the United States engaged in foreign in-
telligence or counterintelligence activities is classified and has not been publicly
acknowledged by the United States, shall be fined not more than $100,000 or
imprisoned for not more than twenty years, or both.
(b) Whoever falsely asserts, publishes, or otherwise claims that an individual
is engaged in foreign intelligence or counterintelligence activities for the United
States Government shall be fined not more than $50,000 or imprisoned for not
more than ten years, or both.
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(c) Whenever, in the judgment of the head of a department or agency engaged
in foreign intelligence or counterintelligence activities for the United States
Government, a person is about to engage in conduct that would constitute a
violation of subsection (a) of this section, the Attorney General, on behalf of
the United States, shall make application to an appropriate United States dis-
trict court for an order enjoining such conduct. Upon a showing that such action
would constitute a violation of this section, a permanent or temporary injunction,
restraining order, or other order shall be granted. Any proceeding conducted
by a court under this subsection for the purpose of determining whether any
information constitutes the type of information described in subsection (a) of
this section shall be held in camera.
(d) As used in subsection (a) of this section, the term-
(1) "discloses" means to communicate, furnish, provide, impart, convey,
transfer, publish, or otherwise make available to any person ;
(2) "unauthorized party" means person, organization, or other entity
not given the authority, right, permission, or opportunity to know, receive,
possess, or control pursuant to the provisions of a statute, Executive order,
directive of the head of any department or agency engaged in foreign intel-
ligence or counterintelligence activities, order of a judge of any United
States district court, or United States Senate or House of Representatives
resolution which assigns primary responsibility for oversight of intelligence
activities ;
(3) "classified" means designated pursuant to the provisions of a statute
or Executive order or rule or regulation issued pursuant thereto as infor-
mation requiring protecction against unauthorized disclosure for reasons
of national security ; and
contractual, (4) "association or t on other with" means having or former employment,
(e) Nothing in this section shall prohibit the furnishing, upon lawful demand,
of information to any of Representatives of the United States of Am mma, or intucommittee t er osf..
FORFEITURE OF ANNUITIES, RETIRED PAY, AND VETERANS BENEFITS
SEc. 3. (a) Upon conviction of an offense under section 2 of this Act, from
and after the date of commission of such offense-
(1) an individual, or his survivor or beneficiary, may not be paid annuity
or retired pay on the basis of the service of the individual to the hUnndd
indi-
States which is creditable toward the annuity or retired pay
vidual under title 5 of the United States Code ; and
(2) an individual shall have no right to gratuitous benefits (including
the right to burial in a national cemetery) under laws administered by the
Veterans' Administration based on periods of military, naval, or air service
commencing before the date of the commission of such offense and no other
person shall be entitled to such benefits on account of such individual.
(b) After receipt of notice of the return of an indictment under section 2
of this Act, the Office of Personnel Management and the Veterans' Administra-
tion shall suspend payment of annuity and retired pay and veterans benefits
pending disposition of the criminal proceedings. If an individual whose right to
such payments has been terminated pursuant to this section is granted a pardon
of the offense by the President of the United States, the right to such payments
shall be restored as of the date of such pardon.
(c) The Attorney General shall notify the Director of the Office of Personnel
Management and the Administrator of the Veterans' Administration on each case
in which an individual is indicted of an offense under section 2 of this Act,
and the disposition of such criminal proceedings.
APPENDIX I
[H.R. 5615, 96th Congress, 1st session]
rmants,
A of Bill to aT-end Information t dentifyingicerSecurltv Act of 1947 to tain United States intelligence officers, agents, unauthorized infodisclosure
and sources
Be it enacted by the Senate and House of Representatives of the United
States of America in Congress assembled, That this Act may be cited as the
"Intelligence Identities Protection Act".
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SEC. 2. (a) The National Security Act of 1947 is amended by adding at the
end thereof the following new title :
"TITLE V-PROTECTION OF CERTAIN NATIONAL SECURITY
INFORMATION
"PROTECTION OF IDENTITIES OF CERTAIN UNITED STATES UNDERCOVER INTELLIGENCE
OFFICERS, AGENTS, INFORMANTS, AND SOURCES
"SEC. 501. (a) Whoever, having or having had authorized access to classified
information that-
"(1) identifies as an officer or employee of an intelligence agency, or as
a member of the Armed Forces assigned to duty with an intelligence agency,
any individual (A) who in fact is such an officer, employee, or member, (B)
whose identity as such an officer, employee, or member is classified infor-
mation, and (C) who is serving outside the United States or has within
the last five years served outside the United States ; or
"(2) identifies as being or having been an agent of, or informant or
source of operational assistance to, an intelligence agency any individual
(A) who in fact is or has been such an agent, informant, or source, and
(B) whose identity as such an agent, informant, or source is classified
information,
intentionally discloses to any individual not authorized to receive classified
information any information that identifies an individual described in para-
graph (1) or (2) as such an officer, employee, or member or as such an agent,
informant, or source, knowing or having reason to know that the informa-
tion disclosed so identifies such individual and that the United States is tak-
ing affirmative measures to conceal such individual's intelligence relationship
to the United States, shall be fined not more than $50,000 or imprisoned not
more than ten years, or both.
"(b) Whoever 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-
"(1) identifies as an officer or employee of an intelligence agency, or as
a member of the Armed Forces assigned to duty with an intelligence
agency, any individual (A) who in fact is such an officer, employee, or mem-
ber, (B) whose identity as such an officer, employee, or member is classi-
fied information, and (C) who is serving outside the United States or
has within the last five years served outside the United States ; or
"(2) identifies as being or having been an agent of, or informant or
source of operational assistance to, an intelligence agency any individual
(A) who in fact is or has been such an agent, informant, or source, and
(B) whose identity as such as agent, informant, or source is classified
information,
knowing or having reason to know that the information disclosed so identifies
such individual and that the United States is taking affirmative measures to
conceal such individual's intelligence relationship to the United States, shall be
fined not more than $5,000 or imprisoned not more than one year, or both.
"DEFENSES AND EXCEPTIONS
"SEC. 502. (a) It is a defense to a prosecution under section 501 that before
the commission of the offense with which the defendant is charged. the United
States had publicly acknowledged or revealed the intelligence relationship to
the United States of the individual the disclosure of whose intelligence relation-
ship to the United States is the basis for the prosecution.
"(b) (1) Subject to paragraph (2), no person other than a person committing
an offense under section 501 shall be subject to prosecution under such section
by virtue of section 2 or 4 of title 18, United States Code, or shall be subject to
prosecution for conspiracy to commit an offense under such section.
"(2) Paragraph (1) shall not apply in the case of a person who acted with
the intent to impair or impede the foreign intelligence activities of the United
States.
"(c) In any prosecution under section 501(b), proof of intentional disclosure
of information described in such section, or inferences derived from proof of
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such disclosure, shall not alone constitute proof of intent to impair or impede
the foreign intelligence activities of the United States.
"(d) It shall not be an offense under section 501 to transmti information
described in such section directly to the Select Committee on Intelligence of the
Senate or to the Permanent Select Committee on Intelligence of the House of
"EXTRATERRITORIAL JURISDICTION
"SEC. 503. There is jurisdiction over an offense under section 501 committed
outside the United States if the individual committing the offense is a citizen
of the United States or an alien lawfully admitted to the United States for
permanent residence (as defined in section 101(a) (20) of the Immigration and
"PROVIDING INFORMATION TO CONGRESS
"SEC. 504. Nothing in this title shall be construed as authority to withhold
information from Congress or from a committee of either House of Congress.
"SEC. 505. For the purposes of this title :
" (1) The term `classified information' means information or material des-
ignated and clearly marked or clearly represented, pursuant to the pro-
visions of a statute of Executive order (or a regulation or order issued
pursuant to a statute or Executive order), as requiring a specific degree of
protection against unauthorized disclosure for reasons of national security.
"(2) The term `authorized,' when used with respect to access to classified
information, means having authority, right, or permission pursuant to the
provisions of a statute, Executive order, directive of the head of any depart-
ment or agency engaged in foreign intelligence or counterintelligence ac-
tivities, order of a United States district court, or provisions of any Rule of
the House of Representatives or resolution of the Senate which assigns
responsibility within the respective House of Congress for the oversight of
intelligence activities.
"(3) The term `disclose' means to communicate, provide, impart, transmit,
transfer, convey, publish, or otherwise make available.
" (4) The term 'intelligence agency' means the Central Intelligence Agency
or any intelligence component of the Department of Defense.
"(5) The term 'informant' means any individual who furnishes or has
furnished information to an intelligence agency in the course of a confidential
relationship protecting the identity of such individual from public disclosure.
" (6) The terms 'agent', 'informant', and 'source of operational assistance'
do not include individuals who are citizens of the United States residing
within the United States.
"(7) The terms 'officer' and 'employee' have the meanings given such terms
by sections 2104 and 2105, respectively, of title 5, United States Code.
"(8) The term 'Armed Forces' means the Army, Navy, Air Force, Marine
Corps, and Coast Guard.
"(9) The term 'United States,' when used in a geographic sense, means all
areas under the territorial sovereignty of the United States and the Trust
Territory of the Pacific Islands.".
(b) The table of contents at the beginning of such Act is amended by adding
at the end thereof the following :
"TITLE V-PROTECTION OF CERTAIN NATIONAL SECURITY INFORMATION
"Sec. 501. Protection of identities of certain United States Undercover intelligence of-
ficers, agents, informants, and sources.
"Sec. 502. Defenses and exceptions.
"Sec. 503. Extraterritorial Jurisdiction.
"Sec. 504. Providing information to Congress.
"Sec. 505. Definitions.".
SECTION BY SECTION ANALYSIS OF H.R. 5615 INTELLIGENCE IDENTITIES PROTECTION
ACT
The Act would add a new Title V to the National Security Act of 1947.
Section 501 would establish two separate offenses for the disclosure of in-
formation identifying certain United States intelligence personnel, depending
on the status of the offender.
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158
Section 501 (a) would apply if the offender had authorized access to classified
information containing the identity of certain intelligence personnel and -
dis
closes any information identifying such personnel. In such a case, the offender
would be subject to a fine of $50,000 or imprisonment for not more than ten
years, or both.
Section 501(b) would apply to any person who discloses information identi-
fying certain United States intelligence personnel. In such a case, the offender
would be subject to a fine of $5,000, or imprisonment for not more than one year,
or both.
As to both categories, the government must prove that the intelligence rela-
tionship which is revealed by the disclosure is classified, that the disclosure
was intentional, that the offender knew or had reason to know that the informa-
tion disclosed identified protected intelligence personnel, that the offender knew
or had reason to know that the United States was taking affirmative steps to
conceal the intelligence relationship of the protected intelligence personnel, and
that the person to whom the identifying information is disclosed was not au-
thorized to receive classified information.
If the offender has not had lawful access to classified information, the govern-
ment must also prove that the disclosure was made with an intent to impair
or impede the foreign intelligence activities of the United States.
The Intelligence personnel whose identities are protected from disclosure by
Section 501(a) and (b) are:
Civilian officers or employees of the CIA or an intelligence component
of the Department of Defense, or members of the Armed Forces assigned
to duty with the CIA or such component, if such officer, employee or member
is serving outside the United States at the time of the disclosure or has so
served within 5 years preceding the disclosure.
Anyone, except a United States citizen residing within the United States,
who is or has been an agent of, or informant or source of operational assist-
ance to, the CIA or an intelligence component of the Department of Defense.
Section 502(a) establishes as a defense to a charge under 501(a) or (b) the
fact that the United States had, prior to the disclosure, publicly acknowledged
or revealed the intelligence relationship which is the subject of the disclosure.
Section 502(b) (1) & (2) insure that a person who does not actually disclose
information cannot be convicted under theories of aiding or abetting, misprison
of a felony, or conspiracy unless the government proves an intent to impair
or impede the foreign intelligence activities of the United States.
Section 502(c) requires the government, when attempting to prove the intent
element of section 501(b), to produce some evidence of intent in addition to the
infrences that may be drawn from the fact of the intentional disclosure. Thus,
the legal principle that a person is presumed to intend the foreseeable conse-
quences of his actions cannot be used as the sole basis to prove that the defendant
intended to impair or impede the foreign intelligence activities of the United
States.
Section 502(d) insures that disclosures made directly to the Senate or House
Intelligence Committees are not criminal offenses.
Section 503 makes clear that the federal government can prosecute a United
States citizen or a permanent resident alien for an offense under Title 5, though
the offense is physically committed outside of the United States.
Section 504 is intended to make clear that the provisions in this title cannot
be the basis for an executive branch decision to withhold information from
Congress.
Section 505 contains the definitions of the operative terms of the preceding
provisions.
The term "classified information" means identifiable information or material
which is protected from unauthorized disclosure for reasons of national security
pursuant to the provisions of a statute or executive order.
The term "authorized" when used with respect to access to classified infor-
mation, means having authority, right, or permission pursuant to the provisions
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 district court, or provisions of any rule of the House of Repre-
sentatives or resolution of the Senate which assigns responsibility within the
respective House of Congress for the oversight of intelligence activities.
The term "disclose" means to reveal by any means whatsoever, including
publication in the press or other public information media.
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The term "intelligence agency" means the CIA or any intelligence component
of the Department of Defense.
The term "informant" means any individual who furnishes or has furnished
information to an intelligence agency in the course of a confidential relationship
protecting the identity of such individual from public disclosure.
The terms "agent," "informant," and "source of operational assistance" do
not include individuals who are citizens of the United States residing within
the United States. Thus, for example, a disclosure that an American college
professor, was, on a confidential basis, aiding CIA recruitment on campus could
not be the subject of a criminal prosecution.
The terms "officer" and "employee" have the meanings given such terms by
sections 2104 and 2105, respectively, of Title 5, United States Code.
The term "Armed Forces" means the Army, Navy, Air Force, Marine Corps,
and Coast Guard.
The term "United States," when used in a geographic sense, means all areas
under the territorial sovereignty of the United States and the Trust Territory
of the Pacific Islands.
APPENDIX J
DEPARTMENT OF JUSTICE BILL tion
cert
Identif
Individu A Bill To prohiassis ing in flosure oreign i tellis nce act vitiesyof inghe United States als engaged or
Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, That this Act may be cited as the "Foreign
Intelligence Identities Protection Act."
STATEMENT OF FINDINGS
SEC. 2. The Congress hereby makes the following findings :
(a) Successful and efficiently conducted foreign intelligence activities are es-
sential to the national security of the United States.
(b) Successful and efficient foreign intelligence activities depend in large part
upon concealment of relationships between components of the United States gov-
ernment that carry out those activities and certain of their employees and sources
of information.
(c) The disclosure of such relationships to unauthorized persons is detrimental
to the successful and efficient conduct of foreign intelligence and counterintel-
ligence activities of the United States.
(d) Individuals who have a concealed relationship with foreign intelligence
components of the United States government may be exposed to physical danger
if their identities are disclosed to unauthorized persons.
SEC. 3. Title 18, United States Code, is amended by adding the following new
chapter :
"Chapter 38-DISCLOSURE OF INFORMATION IDENTIFYING CERTAIN
INDIVIDUALS ENGAGED OR ASSISTING IN FOREIGN INTELLIGENCE
ACTIVITIES"
SECTION 800. Definitions. As used in this Chapter :
(a) "Discloses" means to communicate, provide, impart, transmit, transfer,
convey, publish, or otherwise make available to any unauthorized person.
(b) "Unauthorized" means without authority, right, or permission pursuant
to the provisions of a statute or Executive Order concerning access to national
security information, the direction of the head of any department or agency
engaged in foreign intelligence activities, the order of a judge of any United
States court, or a resolution of the United States Senate or House of Representa-
tives which assigns responsibility for the oversight of intelligence activities.
(c) "Covert agent" means any present or former officer, employee, or source
of an intelligence agency or a member of the Armed Forces assigned to duty
with an intelligence agency (I) whose present or former relationship with the
intelligence agency is protected by the maintenance of a cover or alias identity.
or, in the case of a source, is proteected by the use of a clandestince means of
communication or meeting to conceal the relationship and (Ii) who is serving
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outside the United States or has within the last five years served outside the
United States.
(d) "Intelligence agency" means the Central Intelligence Agency or any for-
eign intelligence component of the Department of Defense.
(e) "Classified information" means any information or material that has
been determined by the United States government pursuant to an executive
order, statute, or regulation, to require protection against unauthorized dis-
closure for reasons of national security.
SECTION 801. Disclosure of Intelligence Identities.
(a) Whoever knowingly discloses information that correctly identifies another
person as a covert agent, with the knowledge that such disclosure is based on
classified information, or attempts to do so, is guilty of an offense.
(b) An offense under this section is punishable by a fine of not more than
$50,000 or imprisonment for not more than ten years, or both.
(c) There is jurisdiction over an offense under this section committed out-
side the United States, if the individual committing the offense is a citizen of
the United States or an alien lawfully admitted to the United States for per-
manent residence.
SECTION 802. Disclosure of Intelligence Identities by Government Employees.
(a) Whoever, being or having been an employee of the United States govern-
ment with access to information revealing the identities of covert agents, know-
ingly discloses information that correctly identifies another person as a covert
agent, or attempts to do so, is guilty of an offense.
(b) An offense under this section is punishable by a fine of not more than
$25,000 or imprisonment for not more than five years, or both.
(c) There is jurisdiction over an offense under this section committed out-
side the United States if the individual committing the offense is a citizen of
the United States or an alien lawfully admitted to the United States for per-
manent residence.
SECTION-BY-SECTION ANALYSIS
This bill, entitled the "Foreign Intelligence Identities Protection Act," would
add a new Chapter 38 to Title 18 of the United States Code imposing criminal
penalties for certain disclosures of information identifying specified categories
of persons engaged in or assisting in the foreign intelligence activities of the
United States.
Section 2. Statement of Findings
Section 2 of the bill lists a number of "findings" that underscore the impor-
tance of maintaining the confidentiality of certain relationships between the
foreign intelligence components of the federal government and their officers,
employees, agents and sources of information. The "findings" emphasize that
the success of these entities in performing their vital intelligence gathering
mission and the physical safety and well-being of the individuals involved de-
pend on the preservation of the confidentiality of such relationships.
Section 3. Amendment to Title 18
Section 3 of the bill would amend Title 18 of the United States Code to add
a new Chapter 38 containing two criminal offenses involving the disclosure of
information identifying covert agents. The two new criminal offense provi-
sions, 18 U.S.C. ?? 801 and 802, and an accompanying definition section, 18 U.S.C.
? 800, are discussed below.
1. 18 U.S.C. ? 800.-Definitions
This section sets forth definitions of five key terms used in the new criminal
offenses that would be created by the bill. The first defined term, "discloses,"
means to reveal to any unauthorized person by any means whatsoever, including
publication in the press or other public information medium. The definition of
"discloses" is intended to avoid any ambiguity regarding the means and manner
of communication of information covered by the new criminal prohibitions
contained in the bill. See New York Times Co. v. United States, 403 U.S. 713,
720-22 (1971) (Douglas, J., concurring) (concluding that 18 U.S.C. ? 793(e)
does not encompass "publication") ; 437-40 and n.9 (White, J., concurring).
"Discloses," as used in the bill, also incorporates a requirement that the com-
munication be made to an "unauthorized" person.
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"Unauthorized," in turn, is defined in section 800(b) to mean without author-
ity, right, or permission pursuant to statute, Executive Order, court order,
direction of the head of a department or agency engaged in foreign intelligence
activities, or resolution of the Senate or House assigning primary responsibility
for the oversight of intelligence activities. The term "unauthorized" is intended
to exclude from the coverage of new criminal provisions communications made
to persons with appropriate security clearances or who have been accorded
authority to obtain access to information identifying covert agents by any of a
variety of responsible persons or entities. The revelation of a covert agent's
identity to a person who has an appropriate security clearance would not, for
example, be "unauthorized" and thus would not constitute a "disclosure" even
if the person did not have a need to know the specific information. Such com-
munications may provide a predicate for administrative action regarding the
mishandling of sensitive information involving agents' identities, but are not
made criminal by the bill. The definition of "discloses" and "unauthorized"
would permit the disclosure of agents' identities to, among others, the Mem-
bers and appropriate personnel of the Senate and House intelligence commit-
tees, to various Executive Branch entities with intelligence responsibilities a^'
to federal courts pursuant to court orders.
Proposed section 800(c) defines "covert agent" to mean "any present or former
officer, employee or source of an intelligence agency or member of the Armed
Forces assigned to duty with the intelligence agency (1) whose present or former
relationship with the intelligence agency is protected by the maintenance of a
cover or alias identity, or, in the case of a source, is protected by the use of a
cladestine means of communication or meeting to conceal the relationship and
(ii) who is serving outside the United States or has within the last five years
served outside the United States." This definition delimits the relevant class of
intelligence identities for purposes of the two new criminal offenses that would
be created by the bill. The requirement of "the maintenance of a cover or alias
identity" for officers, employees and sources of intelligence agencies or of "the
use of a clandestine means of communication or meeting to conceal the relation-
ship" for sources and the requirement of service outside the United States are
intended to restrict the coverage of the bill's criminal prohibitions to the pro-
tection of important confidential foreign intelligence relationships. The definition
is not intended to reach employees or officers of intelligence agencies simply be-
cause their relationship with the intelligence entity is not publically or officially
acknowledged. Nor are persons who contract to supply or who volunteer informa-
tion to intelligence agencies brought within the class of protected identities unless
the cover of clandestine means of communication and the service outside the
United States requirements are satisfied.
Section 800 (d) defines "intelligence agency" to include the Central Intelligence
Agency or any foreign intelligence component of the Department of Defense.
Section 800(e) defines "classified information" to mean any information or
material that has been determined by the United States government pursuant to
an executive order, statute, or regulation, to require protection against un-
authorized disclosure for reasons of national security.
2. 18 U.S.C. ? 801.-Disclosure of Intelligence Identities.
This section would make it a criminal offense, punishable by a fine of not more
than $50,000 and/or imprisonment for not more than ten years, for any person
knowingly to disclose information that correctly identifies another person as a
covert agent where the defendent acts with knowledge that the disclosure is
based upon classified information. In order to establish an offense under this
section, the government would be required to prove (1) that the defendant had
obtained access to classified information identifying another person as a covert
agent, (2) that the defendant knowingly revealed or communicated that informa-
tion in any manner to another person, and (3) that the person to whom this
information was revealed was not authorized to receive it. In proving these ele-
ments of the offense the government would be required to demonstrate that
the information disclosed by the defendant correctly identified another person
as a covert agent and that the defendant was aware that the information he
disclosed came from classified materials.
The offense applies to the disclosure of information that correctly identifies
another person as a covert agent. In the case of information that indirectly
identifies a covert agent, the government would be required to establish that the
defendant was aware that the information he disclosed would reveal the identity
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of a covert agent. The government would not be required to prove that the
information was properly classified, since the sensitive nature of the information
disclosed and the adverse impact of the disclosure on the United States will be
demonstrated by proof that the defendant exposed the identity of a person who
in fact is a covert agent.
The offense created by proposed section 801 is similar in approach to the of-
fense now set forth in 18 U.S.C. ? 798 concerning classified communications
intelligence information. That section provides that anyone who "knowingly and
willfully communicates, furnishes, transmits, or otherwise makes available to
an unauthorized person, or publishes . . . any classified information" concerning
various specified communications and crytographic intelligence matters "[s]hall
be fined not more than $10,000 or imprisoned not more than ten years, or both."
The proposed section 801 reflects a judgment that the knowing disclosure of
classified information revealing the identities of covert agents merits treatment
on a par with that prescribed by Congress to protect against the compromise
of sensitive communications intelligence information. The offense created by pro-
posed section 801 is expressly made applicable to extraterritorial conduct of
United States citizens and permanent resident aliens.
The proposed section would also make it an offense to attempt to disclose in-
formation that correctly identifies another person as a covert agent with knowl-
edge that the disclosure would be based on classified information. This attempt
provision would permit prosecution of persons who, with the state of mind re-
quired for the commission of the offense, take a substantial step forward making
such a disclosure but are prevented from completing the offense. It should be
noted that the attempt provision is not intended to permit prosecution of per-
sons who disclose information that incorrectly identifies another person as a
covert agent.
3. 18 U.S.C. ? 802.-Disclosure of Intelligence Identities by Government
Employees.
This section would create a second offense applicable to persons who are or
have been an employee of the United States government with access to informa-
tion revealing the identities of covert agents. This narrow class of persons would
be subject to prosecution for knowingly disclosing information correctly identi-
fying another person as a covert agent. The penalty for this offense is a fine of
not more than $25,000 and/or imprisonment for not more than five years. Under
this section, the government would be required to prove (1) that the defendant
is or had been an employee of the United States with access to information
revealing the identities of covert agents, (2) that the defendant knowingly re-
vealed or communicated information that correctly identifies another person as
a covert agent, and (3) that this information was revealed or communicated to
a person not authorized to receive it.
The offense under section 802 differs from the section 801 offense in that it
applies to a much narrower class of persons and does not require that the dis-
closure be based on classified information. Unlike other Americans, persons
coming within the reach of section 802 occupy or have occupied positions of
trust within the government and have obtained first-hand knowledge regarding
the identities of covert agents. Such persons are or have been in a position to
learn how the United States establishes cover identities for its agents abroad and
conceals its relationships with foreign intelligence sources. To permit such per-
sons to employ inside government information and expertise in disclosing the
identities of covert agents would pose a serious threat to the maintenance of
vital, secret intelligence relationships. Disclosures of information identifying
covert agents made by such persons, even after they have left government em-
ployment, will be imbued with an aura of credibility derived from their govern-
ment service and are more likely to be accurate than disclosures made by ordinary
citizens. As a result, additional restrictions are warranted for this narrow class
of persons. The more severe penalties of section 801 would, of course, remain
available in situations where disclosures of intelligence identities by present or
former government employees are knowingly based on classified information.
Like section 801, the offense created by section 802 would be applicable to
conduct outside the United States. In addition, the proposed section would also
make it an offense for a present or former government employee within the class
covered by section 802(a) to attempt to disclose information identifying another
person as a covert agent. This attempt provision, like the provision in proposed
section 801(a) , would permit prosecution of persons who, with the state of mind
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required for the commission of the offense, take a substantial step toward making
such a disclosure but are presented from completing the offense. The attempt
provision would not reach persons who incorrectly state that another person is
a covert agent.
The application of the general federal accomplice and conspiracy sections, 18
U.S.C. ? 2 & 371, would reach persons outside the narrow class of present and
former government employees who are covered by section 802(a) only where
such persons knowingly join with a covered person to effectuate the disclosure
of information identifying covert agents. As a result of these general criminal
liabiliay provisions, the proposed bill would serve to deter persons from in-
tentionally assisting present or former government employees subject to the
strictures of section 802(a) In disclosing information identifying covert agents.
This section, together with section 801, will provide clear guidance to persons
involved in discussion and debate regarding our nations' intelligence activities.
Any article, book, speech, or other "disclosure" not knowingly based on classi-
fied information or made by a present or former government employee coming
within the class described in section 802 will be unaffected by the proposed
legislation.
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