INTELLIGENCE IDENTITIES PROTECTION ACT OF 1980 A REPORT

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200090006-1
• Release Decision: RIFPUB
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• Document Page Count: 39
• Document Creation Date: December 21, 2016
• Document Release Date: October 29, 2008
• Sequence Number: 6
• Publication Date: September 24, 1980
• Content Type: REPORT

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Calendar No. 1103
96TH CoNGNM t SENATE RroRT
Rd Session f No. 96-990
INTELLIGENCE IDENTITIES PROTECTION ACT OF 1980
Mr. KENNEDT, for the Committee on the Judiciary,
submitted the following
REPORT
together with
ADDITIONAL VIEWS
[To accompany S. 2216]
The Committee on the Judiciary, to which was referred the bill
(S. 2216) to improve the intelligence system of the United States, and
for other purposes, having considered the same, reports favorably
thereon with amendments, and recommends that the bill, as amended,
do pass.
AMENDMENTS 1
(1) On page 12, line 2, strike out "intended to identify and expose
covert agents and" and insert in lieu thereof "undertaken for the pur-
pose of uncovering the identities of covert agents and exposing such
identities".
(2) On page 13, lines 4 and 5, strike out "intended to identify and
expose covert agents and" insert in lieu thereof "undertaken for the
purpose of uncovering the identities of covert agents and exposing such
identities" ; and following line 15, insert the following :
(e) It shall not be an offense under subsection (c) of 501 if
the disclosure of the information described in such subsection
is an integral part of another activity such as news reporting
of intelligence failures or abuses, academic study of govern-
ment policies and programs, enforcement by a private orga-
1 The amendments are to the amendment in the nature of a substitute bill reported by
the Select Committee on Intelligence on Aug. 13, 1980 (S. Rept. 96-896).
59-0100
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nization of its internal rules and regulations, or other activity
protected by the First Amendment to the Constitution.
(3) On page 14, line 2, following the word "agency" insert ", other
than the Peace Corps, the Agency for International Development, or
their respective successor agencies,".
(4) On page 17, line 20, strike out "of objective." and insert in
lieu thereof "or objective."; and following line 20 insert the following:
SEC. 507. (a) Any interested party, including any news or-
ganization or any person who intends to disclose any informa-
tion identifying an individual as a cover agent to any indi-
vidual not authorized to receive classified information, may
institute in the United States District Court for the district
in which the defendant has his principal place of business,
or in the case of a newspaper or magazine, in the district in
which its principal editorial offices are located, such actions as
may be appropriate, including an action for declaratory
judgment, to construe the constitutionality of any provision
of this title or to rule upon the constitutionality of such pro-
vision on its face or as applied. The district court shall
immediately certify all questions of constitutionality of this
title to the United States Court of Appeals for the appropri-
ate circuit, which shall hear the matter sitting en bane.
(b) Notwithstanding any other provision of law, any de-
cision on a matter certified under subsection (a) shall be re-
viewable by appeal directly to the Supreme Court of the
United States. Such appeal shall be brought no later than 20
days after the decision of the court of appeals.
(c) It shall be the duty of the court of appeals and of the
Supreme Court of the United States to advance on the docket
and to expedite to the greatest possible extent the disposition
of any matter certified under subsection (a) of this section.
SEC. 508. If any provision of this title or the application
thereof to any person or circumstance is held invalid, the re-
mainder of this title and the application of such provision to
any other person or circumstance shall not be affected thereby.
PURPOSE OF THE BILL As AMENDED
The purpose of S. 2216, as reported, is to strengthen the intelligence
capabilities of the United States by prohibiting the unauthorized dis-
closure of information identifying certain United States intelligence
officers, agents, and sources of information and operational assistance,
and by directing the President to establish procedures to protect the
secrecy of these intelligence relationships. The purpose of the Com-
mittee amendments is to narrow the scope of the bill to prevent undue
encroachment on constitutional rights under the First Amendment
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and to provide expeditious judicial review when such rights are
involved.
HISTORY OF THE BILL
Numerous proposals have been made for a criminal statute to pun-
ish systematic efforts to uncover and expose the identities of intelli-
gence agents. Senator Bentsen introduced identities protection propos-
als in the 94th and 95th Congresses but no action was taken. On Octo-
ber 17, 1979, Representative Boland, Chairman of the House Intelli-
gence Committee, introduced H.R. 5615, the Intelligence Identities
Protection Act, which was co-sponsored by all other members of that
Committee. Identical provisions were included in S. 2216, introduced
on January 24,1980, as the Intelligence Reform Act of 1980, by Senator
Moynihan. The bill was co-sponored by Senators Wallop, Jackson and
Chafee of the Select Committee on Intelligence, by Senators Domenici,
Nunn and Danforth, and later by Senators Hollings, Schmitt, Simp-
son and Armstrong.
Provisions for intelligence identities protection similar to Senator
Bentsen's proposal were contained in S. 2284, which was introduced
on February 8, 1980, as the National Intelligence Act of 1980 by Sen-
ator Huddleston. This bill was co-sponsored by Senator Mathias and
by Senator Bayh and Senator Goldwater, Chairman and Vice Chair-
man of the Select Committee. An earlier version of this bill, S. 2525,
introduced by Senator Huddleston and other Committee members in
the 95th Congress, also included provisions for intelligence identities
protection.
Hearings on S. 2284 before the Select Committee on Intelligence
began on February 21, 1980, and addressed among other issues the
provisions for intelligence identities protection. The provisions of
S. 2284 imosed criminal penalties for the disclosure of identities of
intelligence- agents by persons who had authorized access to such infor-
mation. During the hearings on S. 2284, the Administration proposed
an additional provision which would impose criminal penalties for
such discolsure by any person based on classified information. Some
witnesses, including former intelligence officials, testified in favor of
an alternative provision contained in S. 2216 which imposed criminal
penalties for such disclosure by any person with the intent to impair or
impede the foreign intelligence activities of the United States. Other
witnesses, including representatives of the news media and civil liber-
ties groups, opposed any such additional provision and raised questions
about the penalties for disclosure by persons who had authorized
access.
The Select Committee held further hearings on June 24 and 25 which
focused specifically on the intelligence identities protection provisions
of S. 2216. Those hearings also considered other proposals on the sub-
ject, including S. 191 introduced by Senator Bentsen on January 23,
1979.
Administration witnesses reiterated their proposal of criminal pen-
alties for disclosure of intelligence agents' identities by any person
based on classified information. However, Deputy CIA Director Car-
lucci testified that this proposal "could cover the most egregious cases,
such as the disclosures by `Covert Action Information Bulletin,' ...
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only if the use of criminal investigative techniques provided sufficient
proof that the disclosures were based on classified information." Other
witnesses expressed a wide range of views favoring and opposing the
provisions of S. 2216.
In early July, 1980, attacks against American embassy officials in
Jamaica took place shortly after the disclosure of the names, addresses,
phone numbers, and automobile license numbers of 15 alleged CIA
officers. The disclosures were made by an editor of the Covert Action
Information Bulletin at a press conference in Kingston, Jamaica.
These incidents documented the need for remedial legislation to pro-
tect agent identities from unauthorized disclosure.
On July 25, 1980, The House Intelligence Committee unanimously
approved H.R. 5615, the Intelligence Identities Protection Act, with
amendments. The Select Committee met on July 29, 1980, to consider
S. 2216. An amendment in the nature of a substitute was offered by
Senator Chafee which differed from H.R. 5615, as approved by the
House Committee, on only one issue. The House Committee had ap-
proved the following standard for criminal penalties if the disclosure
of an agent's identity is made by a person who did not learn that
identity as a result of having authorized access to classified informa-
tion :
Whoever, in the course of an effort to identify and expose
covert agents with the intent to impair or impede the foreign
intelligence activities of the United States, discloses, with the
intent to impair or impede the foreign intelligence activities
of the United States to any individual not authorized to re-
ceive classified information, any information that identifies
a covert agent knowing that the information disclosed so iden-
tifies such covert agent and that the United States is taking
affirmative measures to conceal such covert agent's intelligence
relationship to the United States, shall be fined not more than
$15,000 or imprisoned not more than three years, or both.
The Chafee Amendment proposed the following standard :
Whoever, in the course of a pattern of activities intended to
identify and expose covert agents and with reason to believe
that such activities would impair or impede the foreign intel-
ligence activities of the United States, discloses any informa-
tion that identifies an individual as a covert agent to any
individual not authorized to receive classified information,
knowing that the information disclosed so identifies such in-
dividual and that the United States is taking affirmative
measures to conceal such individual's classified intelligence
relationship to the United States, shall be fined not more than
$15,000 or imprisoned not more than three years, or both.
After several other minor amendments were adopted, the substi-
titute, as amended, was approved by the Select Committee as the In-
telligence Identities Protection Act, with a recommendation for
favorable action by a vote of 11-1. The bill was reported on August 13,
1980.
On August 22, 1980, S. 2216, as reported by the Select Committee
was referred to the Committee on the Judiciary under the provisions
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of Senate Resolution 400 for a period not to exceed 20 days that the
Senate was in session. The Committee held hearings on September 5,
1980, at which representatives of the Department of Justice, the Cen-
tral Intelligence Agency, the Federal Bureau of Investigation, media
organizations and civil liberties groups testified. Written statements
were also solicited from law professors and constitutional scholars
by Senator Edward M. Kennedy, the chairman of the Committee.
During the hearings, the Committee was told by Administration
witnesses and the bill's chief sponsor, Senator Chafee, that the bill
was intended "to stop those engaged in the business of `naming names' "
and was not intended to apply to members of the press or others
engaged in protected First Amendment activities. Other witnesses
testified, however, that whatever the intent of the drafters of the bill,
section 501(c) could be interpreted to criminalize activity protected
by the First Amendment and that the bill was therefore unconstitu-
tional. That view was supported by communications from most of
the scholars and law professors who submitted comments regarding
this section of the bill.
After the Committee adopted a number of amendments, it ordered
the bill to be reported favorably by a vote of 13 to 0 on September 17,
1980.
SUMMARY OF LEOIsI.ATION
This bill makes criminal the disclosure of intelligence identities
only in certain specified circumstances.
The bill applies to three well defined and limited classes of in-
dividuals. The first consists of those who have had authorized access
to classified information identifying undercover operatives, or "covert
agents", as they are termed by the bill. This class would include only
those individuals-principally government workers or supervisory offi-
cials-who would have had a need to know the identity of an under-
cover officer or an agent. This class therefore includes only those who
obtain or receive documents or information which name or directly
identify covert agents in the course of their duties. It is their occupa-
tion of a position of trust which results in access to the identities of
covert agents, and disclosures of the identities they learned in this fash-
ion are the most heavily penalized by the bill.
The second class also encompasses individuals who have or have
had access to classified information, but not necessarily that which
explicitly identifies covert agents. For a member of this class, however,
it must be shown that as a result of that access to classified informa-
tion he learned an intelligence identity. This class would include those
in government whose jobs place them in a position to learn the identi-
ties of covert agents indirectly. Although the government need not be
able to prove that individuals in this class have had officially approved
access to the actual identities of covert agents, it must show that as a
result of the position which they held they learned such identities.
Within certain circles of government such circumstances are not un-
common. Since individuals in this class have also had positions of
trust, they are believed by the Committee to have a duty of care
parallel to, but less than, that of individuals included in the first class.
Thus, disclosures by the second class are penalized less severely than
those of the first class but, still more severely than the third class.
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The third and last class of individuals affected by the bill are
those who have never had authorized access to classified information
with its accompanying duty of care, but who engage in a deliberate
pattern of activities whose purpose is to uncover the identities of
covert agents and expose such identities with reason to believe that
such activities would impair or impede the foreign intelligence activi-
ties of the United States. Since this class potentially includes any
discloser of an undercover intelligence identity, the Committee has
paid particular attention to limiting its reach to those whose clear,
evidenced plan and practice involves a series of acts with a common
purpose or objective undertaken to uncover the identities of and
expose covert agents in circumstances where a reasonable man would
know such activities would disrupt a legitimate and highly valuable
function of government.
In sum, it encompasses only individuals whose intentional, well evi-
denced course of conduct involves (1) a pattern of activities (2) whose
purpose is to uncover and expose covert agents (3) with reason to
believe such course of conduct would impair or impede U.S. foreign
intelligence activities.
The Committee, conscious of its special responsibility to protect the
constitutional rights of Americans, carefully considered alternative
ways to deal with the serious constitutional objections to the bill. Its
deliberations resulted in a redrafting of section 501(c) and the addi-
tion of a clause making clear that disclosures which were an integral
part of an activity protected by the First Amendment are not covered
by the statute. In making these changes, the Committee does not believe
that it deviates from the intent of the Select Committee. Indeed much
of the language which the Committee added to the bill was taken ver-
batim from the Select Committee's Report.
It is the purpose of the Committee in amending the language as
reported by the Select Committee and adding section 502(e) to pre-
clude the inference and exclude the possibility that casual discussion,
political debate, the journalistic pursuit of a story on intelligence, or
the disclosure of illegality or impropriety in government will be chilled
by the enactment of the bill. Further, the bill also provides that no
prosecutions for conspiracy, aiding or abetting, or misprision in the
commission of an offense by a member of any of the three classes of
individuals affected by the bill can occur unless the individual accused
also acts in the course of such a pattern of activities which were under-
taken for the purpose of uncovering and exposing the identities of
covert agents and with reason to believe such activities would impair
or impede the foreign intelligence activities of the United States.
Those who "cause" a felony (aiders and abettors and accessories before
the fact, as described in section 2 of title 18, U.S.C.), those who fail
to report a felony (misprisioners as described in section 4 of title 18,
U.S.C.), or those who conspire (section 371 of title 18, U.S.C.) could
be reached if they demonstrated the requisite pattern of activities were
undertaken for the purpose of uncovering the identities of covert
agents and exposing such identities with reason to believe such activi-
ties would impair or impede the foreign intelligence activities of the
United States.
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The Committee believes that the Select Committee has considered
and drafted the provisions of S. 2216 with care. The principal thrust
of this effort has been to make criminal disclosures which clearly rep-
resent a conscious and pernicious effort to expose agents where such
exposure damages the capability to conduct intelligence operations
and where such disclosures are not an integral part of another activity
such as news reporting of intelligence failures and abuses, academic
study of government policies and programs, enforcement by a private
organization of its enternal rules sand regulations, or other activities
protected by the First Amendment to the Constitution. Secion 501(c),
read in connection with the new section 502(e), is intended to cover
only a very narrow class of individuals who are in the business of
"naming names".
The pattern of activities in which such individuals are engaged must
have as its purpose the uncovering and identifying of covert agents.
The disclosure must not be an integral part of an activity protected
by the First Amendment such as news reporting or academic studies
designed to contribute to robust public discussion or debate. Rather its
purpose must be to expose agents' identities in a manner that impairs
their effectiveness through the very act of exposure. The individual
must be taking the law into his own hands by posing a direct and im-
mediate obstruction to the exposed agent's effectiveness. In effect, he
makes himself a "self-appointed counterspy". Thus the bill as reported
by this Committee has the same scope as the bill as reported by the
Senate Intelligence Committee. Its Report stated the necessary pat-
tern would not be demonstrated by one who discloses
identities of undercover employees as an integral part of
another enterprise such as news media reporting of intelli-
gence failures or abuses, academic studies of U.S. government
policies and. programs, or a private organization's enforce-
ment of its internal ruleaz
The Committee also recognizes that there are other aspects of this
problem of protection which require different solutions. One is the
strengthening of cover itself. Although a full discussion of cover for
intelligence operatives abroad is inappropriate in the context of this
public report, the alias and other provisions for the concealment of in-
telligence operatives are not fully adequate. Accordingly, the Commit-
tee has included a provision requiring the President to promulgate pro-
cedures that will help to rectify this situation. These procedures are
to ensure that intelligence cover arrangements are effective. They are
to provide that departments and agencies of government designated by
the President are to afford all appropriate assistance-determined by
the President-to this end.
These procedures do not address the relationships between intelli-
gence agencies and private organizations and institutions. Nor does
this section stinulate which elements of government shall provide as-
sistance or what that assistance must be. The bill requires only that the
President of the United States review these questions and determine
the appropriate interest of the United States. In so doing, the provision
2 s. Rep. No. 96-896, 96th Cong., 28 sees. 18 (1980).
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recognizes that it is the responsibility of the President to study these
questions and order improvements which will result in the adequate
provision of cover to undercover intelligence operatives. However,
this Committee amended the bill to provide that the President may not
direct the Peace Corps or the Agency for International Development
to provide such assistance. This provision is a clear congressional
mandate to strengthen cover arrangements, while protecting the special
situation of the Peace Corps and the Agency for International
Development.
CONSTITUTIONALITY OF THE BILL
In framing S. 2216, the Committee took care to ensure that the
bill met the requirements of the Constitution. While the courts will
make their own determination of the constitutionality, the Congress
has a responsibility to make its best judgment. However, because of the
serious constitutional questions which a number of scholars have raised,
the Committee provided both authority and procedures for an ex-
pedited judicial review of this bill. Without such a review, this legis-
lation could have a chilling effect on legitimate First Amendment
expression for a lengthy period of time until the Supreme Court
decides the issue.
There appears to be little doubt as to the constitutionality of the
criminal penalties in sections 501 (a) and (b) for persons who disclose
the identities of covert agents they learned as a result of having au-
thorized access to classified information. However, constitutional ques-
tions were raised in the hearings with respect to criminal penalties for
the publication of covert agents' identities by persons who have not had
that access. It is the conclusion of the Committee that section 501 (c),
as amended and read in conjunction with section 502(e) which
was added by the Committee, which imposes such penalties in certain
narrowly-limited circumstances, does not. infringe freedom of speech
and freedom of the press guaranteed by the Constitution.
The First Amendment states that "Congress shall make no law .. .
abridging the freedom of speech, or of the press. . . ." In Inter-
preting the First Amendment, Justice Holmes wrote, "The most
stringent protection of free speech would not protect a man in falsely
shouting fire in a crowded theatre and causing a panic. . . . The ques-
tion in every case is whether the words are used in such circumstances
and are of such a nature as to create a clear and present danger that
they will bring about substantive evils that Congress has a right to
prevent." Schenck v. United States, 249 U.S. 47 (1919).
In addition, a statute affecting speech or publication must not extend
overbroadly. Legitimate legislative goals cannot, according to the
Supreme Court, "be pursued by means that broadly stifle fundamental
personal liberties when the end can be more narrowly achieved."
Shelton v. Tucker, 364 U.S. 478, 488 (1960) ; cf., Elfbrandt v. Russell,
348 U.S. 11, 18 (1966). The Court has also said : "It has long been
recognized that the First Amendment needs breathing space and that
statutes attempting to restrict or burden the exercise of First Amend-
ment rights must be narrowly drawn and represent a considered legis-
lative judgment that a particular mode of expression has given way
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to other compelling needs of society." Broadrick v. Oklahoma, 413 U.S.
601,607 (1972).
These are the principles that have guided the Committee in con-
sidering the constitutionality of S. 2216. The findings of the Committee
have been spelled out clearly, and the language of the bill has been
framed insofar as possible to deal with a specific, serious harm in the
circumstances where that harm is most likely to occur, and to exclude
disclosures which are an integral part of an activity protected by the
First Amendment.
The gravamen of the offense being proscribed is action : a pattern
of activities whose purpose is to uncover identities which the U.S.
Government is actively seeking to conceal for reasons supported by
weighty considerations of national security. The fact that part of
the activity involves disclosing information does not mean that the
activity as a whole is protected by the First Amendment and cannot
be proscribed for a compelling state interest. As Chief Justice Earl
Warren wrote in upholding international travel restriction :
There are few restrictions on action which could not be
clothed by ingenious arguments in the garb of decreased
data flow. . . . The right to speak out and to publish
does not carry with it the unrestrained right to gather
information Zemel v. Rusk, 381 U.S. 1, 11-18 (1965).
The Committee's amendment to section 501(c) and the addition
of section 502(e) were undertaken with this principle in mind. The
statute is aimed at conduct which seeks to ferret out identities which
the government is actively seeking to keep concealed. To ensure that
such conduct is not "clothed by ingenious argument" in the garb of
protected speech, the Committee insisted that, in order for a disclo-
sure to be protected, it must be an integral part of the protected
activity. However, a course of conduct that involves a pattern of
activities undertaken for the purpose of uncovering and exposing
covert agents is not, in and of itself, protected activity.
(a) Disclosure not based on clemsifled information
Even though section 501(c) punishes disclosure that is not based
on classified information, the government must prove that the infor-
mation disclosed by the defendant identified an individual as a covert
agent and that the defendant knew the information so identified such
individual. The definition of "covert agent" is specifically limited to
an individual whose identity as an intelligence agency employee "is
classified information" and to agents, informants, and sources "whose
intelligence relationship to the United States is classified informa-
tion." In addition, the government must prove that, at the time of the
disclosure, the defendant knew that the United States was taking
affirmative measures to conceal such individual's classified intelligence
relationship to the United States. There is also a defense if the United
States had already "publicly acknowledged or revealed" that rela-
tionship. Taken together, these provisions ensure that criminal penal-
ties can be imposed under section -501(c) only when the defendant has
knowingly disclosed information that, in terms of its specificity, its
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sensitivity, and the effort expended to maintain its secrecy, is virtu-
ally the equivalent of classified information.
(b) Scope of protected information
Apart from the issue of classification, the Committee has carefully
considered the definition of "covert agent" and has included only
those identities which it has determined to be absolutely necessary to
protect for reasons of imminent danger to life or significant interfer-
ence with vital intelligence activities. Undercover officers and em-
ployees overseas may be in special danger when their identities are
revealed, as recent events indicate. In addition, U.S. intelligence ac-
tivities can be disrupted severely when the identity of an officer in
the clandestine service is disclosed. Overseas agents and informants
who are not United States citizens may expect instant retribution
when their relationship to the United States is exposed. If they reside
in the United States their relatives abroad may be endangered. In
both instances, important sources of information or assistance may
be denied by disclosure, and possible future sources may be less
forthcoming.
Where the danger are less, however, the Committee has sought to
avoid an inhibition on public criticism or debate concerning intelli-
gence activities. Because the revelation of their relationship could ex-
pose them to immediate and serious danger, U.S. citizens who serve as
informants or sources are included in the "covert agent" definition
if they reside and act outside the United States. However, the physi-
cal danger element is much less within the United States. Furthermore,
U.S. citizens residing within the United States who assist intelligence
agencies may be employees of colleges, churches, the media, or politi-
cal organizations. The degree of involvement of these groups with
intelligence agencies is a legitimate subiect of national debate and
infra-group discourse. Therefore, the definition includes U.S. citizens
residing within the United States only if they are agents or inform-
ants of the foreign counterintelligence or foreign counterterrorism
components of the FBI. As noted above, these individuals are exposed
to special hazards.
The principal criterion adopted by the Committee in framing the
categories of the "covert agent" definition has been physical danger or
a reasonable possibility thereof. As a result, the criminal penalties in
section 501 (c) apply only to disclosure of a narrow class of informa-
tion that requires special protection not only to meet the needs of the
United States for an effective intelligence service, but also to en-
sure the safety of individuals serving this nation in hazardous
circumstances.
(c) Course of conduct requirements
The Committee has concluded that in addition to the narrow defi-
nition of "covert agent", and the provisions requiring the government
to prove that the defendant knowingly disclosed virtually the equiva-
lent of classified information, further provisions may be needed to
ensure that the bill meets First Amendment requirements when crim-
inal penalties are imposed on persons who do not disclose agent
identities they learned as a result of having authorized access to classi-
fied information. Therefore, the Committee has required additional
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proof that the disclosure was made "in the course of a pattern of
activities undertaken for the purpose of identifying and exposing
covert agents and with reason to believe that such activities would,
impair or impede the foreign intelligence activities of the United
States."
The Committee substituted the phrase "undertaken for the purpose
of uncovering the identities of covert agents and exposing such identi-
ties" for the phrase "to identify and expose covert agents." 3 This was
done to make clear the intended meaning of the language. The person
must be engaged in an enterprise whose purpose he or she knows and
intends to be the uncovering of the identities of covert agents for its
own sake. An uncovering that is part of another activity and incidental
to that activity is not included nor intended to be made criminal.
Moreover the individual must ferret out the names by a process of
deliberate and systematic search. If the individual's pattern of dis-
closures involves the republication or the repetition of information
readily available to the person, then the individual is not engaged in
the necessary pattern of activities whose purpose is to uncover identi-
ties which the government is seeking to conceal. The pattern of activi-
ties must amount to an effort to ferret out information which the gov-
ernment is making efforts to conceal by employing techniques such as
surveillance of American officials, unauthorized access to classified
information, or the piecing together of clues from multiple published
sources. In addition in some cases, a name might be "uncovered" by
being read in a journal of limited circulation or being revealed in a
conversation. However, an individual would not be engaged in the nec-
essary "pattern of activities" unless he read the journal or engaged
in the conversation as part of a systematic effort to uncover identities
which the government is seeking to conceal.
The individual whose identity is disclosed must be one whose identity
was learned in the course of the necessary pattern of activities. This
standard reflects "a considered legislative judgment that a particular
mode of expression" must give way "to other compelling needs of
society," as the Supreme Court has described the constitutional test.
The record indicates that the harm this bill seeks to prevent is most
likely to result from disclosure of a covert agents identity in the course
of a pattern of activities involving a series of acts having a common
purpose or objective and designed, first, to make a systematic effort at
uncovering covert agents and, second to expose such agents publicly.
The gratuitous listing of agents' names in certain publications goes far
beyond information that might contribute to informed public debate
on foreign policy or foreign intelligence activities. That effort to
uncover the identities of covert agents by overcoming government
efforts to conceal the identities of TT.S. intelligence officers and agents in
countries throughout the world and to expose their identities repeat-
edly, time and time again, serves no legitimate purpose. Such conduct is
not protected by the First Amendment. Instead, it reflects a total dis-
regard for the consequences that may jeopardize the lives and safety
of individuals and damage the ability* of the United States to safeguard
the national defense and conduct an effective foreign policy.
a The Administration indicated in a letter to the Committee that it had no objections to
the substitution. Letter from Deputy Attorney General Charles B. Renfrew to Senator
Edward M. Kennedy, Sept. 17, 1980.
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The standard adopted in section 501(c) applies criminal penalties
only in very limited circumstances to deter those who make it their
business to ferret out and publish the identities of agents. At the same
time, as the bar to prosecution in section 502(e) makes doubly clear,
it does not affect the First Amendment rights of those who disclose the
identities of agents as an integral part of other activities such as news
media reporing of intelligence failures or abuses, academic studies of
U.S. Government policies and programs, or a private organizations
enforcement of its internal rules, which are protected by the First
Amendment.
The Committee shares the objectives expressed by the Attorney
General when he wrote to the Intelligence Committee to emphasize
"the great importance" of this legislation.
While we must welcome public debate about the role of the intelli-
gence community as well as other components of our government, the
wanton and indiscriminate disclosure of the names and cover identi-
ties of covert agents serves no salutory purpose whatsoever. As public
officials, we have a duty, consistent with our oath to uphold the Con-
stitution, to show our support for the men and women of the United
States intelligence service who perform duties on behalf of their
country, often at great personal risk and sacrifice.
The Attorney General added that the legislation should carefully
establish "effective prohibitions on egregious disclosures of identities
of intelligence agents, while recognizing essential rights of free speech
guaranteed to us all by the First Amendment and the important role
played by the press in exposing the truth." 4
As the Attorney General advised, S. 2216 concentrates on "wanton
and indiscriminate disclosure" where such activities serve "no salu-
tory purpose whatsoever," and it draws a distinction between such
"egregious disclosures" and other modes of Publication which are an
integral part of activity protected by the First Amendment so as to
maintain and respect "the important role played by the press in expos-
ing the truth.
Some believe deeply that any legislation punishing the publication
of information about government activities would be unconstitutional.
Others assert that the Constitution would allow punishing any un-
authorized disclosure of a covert agent's identity, regardless of the
circumstances. The Committee believes, however, that S. 2216 strikes a
proper and constitutional balance between the needs of a free society
for information that might contribute to informed debate on public
policy issues and the compelling concerns of the men and women who
serve our nation's intelligence agencies at great risk and sacrifice.
SECTION-BY-SECTION ANALYSIS
SECTION 501-DISCLOSURE OF IDENTITIES
Section 501 establishes three distinct criminal offenses for the inten-
tional disclosure to unauthorized persons of information identifying
covert agents. The distinction among the offenses is based on the de-
A Letter from Attorney General Benjamin R. Civiletti to the Chairman of the Senate
Select Committee on Intelligence, June 23, 1980.
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13
fendant's authorized access to classified information, or lack thereof.
The greater the degree of such access, the greater is the duty of trust
assumed by the defendant and the greater is the penalty for breach of
such duty. In addition, the elements of proof are fewer against defend-
ants with authorized access to classified information.
Section 601(a) applies to those individuals who have been given
authorized access to classified information which identifies a covert
agent. Such individuals, usually employees of the United States with
the most sensitive security clearances, have undertaken a duty of non-
disclosure of the nation's most sensitive secrets. It is appropriate, in
the Committee's view, to impose severe penalties for the breach of this
duty and to hold individuals in this category to stricter standards of
liability. Therefore, an individual who has had authorized access to
classified information identifying a covert agent would be subject to
a fine of $50,000 or imprisonment for ten years, or both, if he-
Intentionally discloses, to any individual not authorized to
receive classified information, any information identifying such
agent,
Knowing that the information disclosed identifies such agent,
and
Knowing that the United States is taking affirmative measures
to conceal the agent's intelligence relationship to the United
States.
The word "intentionally" was carefully chosen to reflect the Com-
mittee's intent to require that the government prove the most exacting
state of mind element in connection with section 501 offenses.5
It should be evident, but the Committee wishes to make clear, that
the words "identifies", "identifying", and "identity", which are used
throughout section 501 are intended to connote a correct status as a
covert agent. To identify someone incorrectly as a covert agent is not
a crime under this bill.
The reference to "affirmative measures" is intended to confine the
effect of the bill to relationships that are deliberately concealed by
the United States. These "affirmative measures" could include the use
of such techniques as, for example, the creation of a "cover" identity
(a set of fictitious characteristics and relationships) to conceal the
individual's true identity and relationship to an intelligence agency,
the use of clandestine means of communication to conceal the indi-
vidual's relationship with United States Government personnel and
the restricting of any mention of the individual's true identity or
intelligence relationship to classified documents and channels. Proof
of knowledge that the United States is taking affirmative measures
to conceal an intelligence relationship will depend upon the facts and
circumstances of each case. It could be demonstrated by showing that
the discloser's current or former employment or other relationship
with the United States required or gave him such knowledge. It could
also be demonstrated by statements made in connection with the dis-
closure or by previous statements evidencing such knowledge.
The mere fact that an intelligence relationship appears in a docu-
ment which is classified does not constitute evidence that the United
5 Lesser degrees of mental culpability are knowing. reckless. and neelieent. See S. Rept.
96-553. Pages 62-59 (Criminal Code Reform Act of 1A79. Report of the Committee on
the Judiciary, United States Senate, to accompany S. 1722.)
S.Rept. 96-990 - 3
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States is taking affirmative measures to conceal the relationship. For
instance, the document could be classified because of other informa-
tion it contains. Similarly, the fact that the United States has not
publicly acknowledged or revealed the relationship does not by itself
satisfy the "affirmative measures" requirement.
It also is to be emphasized that though the identity disclosed must
be classified (see section 506(4) ), the actual information disclosed
need not be. For example, the phone number, address, or automobile
license number of a CIA station chief is not classified information;
the disclosure of such information in a manner which identifies the
holder as the CIA station chief is an offense under the bill. However,
the connection between the information disclosed and the correct
identity of the covert agent must be direct, and the information must
point at a particular individual.
Finally, in connection with section 501(a) , it should be noted that
the identity of a covert agent which is disclosed and which is the sub-
ject of the prosecution must be an identity to which the offender,
through authorized access to classified information, was specifically
given access.
Section 501(b) applies to those who learn the identity of a covert
agent "as a result of having authorized access to classified informa-
tion". Basicilly, it covers those whose security clearance places them
in a position from which the identity of a covert agent becomes known
or is made known. The distinction between this category of offenders,
and the category covered by section 501(a), is under section 501(a)
the offender must have had authorized access to specific classified in-
formation which identifies the covert agent whose disclosure is the
basis for the prosecution. Section 501(b), on the other hand, requires
that the identity be learned only "as a result" of authorized access to
classified information in general.
As with those covered by section 501(a), those in the 501(b) cate-
gory have placed themselves in a special position of trust vis-a-vis the
United States Government. Therefore, it is proper to levy stiffer penal-
ties and require fewer elements to be proved than for those who have
never had any authorized access to classified information (see section
501(c) ). However, the Committee recognizes that there is a subtle
but significant difference in the position of trust assumed between
an offender within the section 501 (a) category and an offender in the
section 501(b) category. Therefore, the penalty for a conviction under
section 501(b) is a fine of $25,000 or five years imprisonment, or both.
With the two exceptions discussed above-the relationship of the
offender to classified information and the penalty for conviction-
the two offenses, and the elements of proof thereof are the same.
Section 501 (c) applies to any person who discloses the identity of a
covert agent.
As is required by subsections (a) and (b), the government must
prove that the disclosure was intentional and that the relationship
disclosed was classified. The government must also prove that the
offender knew that the government was taking affirmative measures
to conceal the classified intelligence relationship of the covert agent.
As is also the case with subsections (a) and (b), the actual informa-
tion disclosed does not have to be classified. However, the government
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must prove that the defendant knew that he was disclosing a classified
relationship the government seeks to conceal by affirmative measures.
Unlike the previous two sections, authorized access to classified in-
formation is not a prerequisite to a conviction under section 501(c).
An offender under this section has not voluntarily agreed to protect
any government information nor is he necessarily in a position of
trust. Therefore, section 501(c) establishes three elements of proof not
found in sections 501 (a) or (b). The United States must prove-
That the disclosure was made in the course of a pattern of
activities, i.e., a series of acts having a common purpose or
objective;
That the purpose of the pattern of activities was to uncover and
expose covert agents; and
That there was reason to believe such activities would impair
or impede the foreign intelligence activities of the United States.
These requirements make it clear that the defendant must be en-
gaged in a conscious plan to seek out undercover intelligence operatives
and expose them in circumstances where such conduct would impair
U.S. intelligence efforts.
It is important to note that the pattern of activities must be for the
purpose of uncovering and exposing such agents. Most laws do not
require intentional acts, but merely knowing ones. The difference be-
tween knowing and intentional acts was explained as follows in the
Senate Judiciary Committee report on the Criminal Code Reform Act
of 1980.
As the National Commission's consultant on this subject
put it, "it seems reasonable that the law should distinguish
between a man who wills that a particular act or result take
place and another who is merely willing that it should take
place. The distinction is drawn between the main direction
of a man's conduct and the (anticipated) side effects of his
conduct." For example, the owner who burns down his tene-
ment for the purpose of collecting insurance proceeds does
not desire the death of his tenants, but he is substantially
certain (i.e., knows) it will occur.
A newspaper reporter, then, would rarely have engaged in a pattern
of activities with the requisite intent to "uncover" and "expose" covert
agents. Instead, such a result would ordinarily be "the (anticipated)
side effect of his conduct."
Under the definition of "pattern of activities," there must be a
series of acts with a common purpose or objective. A discloser must,
in other words, be in the business, or have made it his practice, to
ferret out and then expose undercover officers or agents where the
reasonably foreseeable result would be to damage an intelligence
agency's effectiveness.
The process of "uncovering" covert agents must involve a substan-
tial effort to ferret out names which the government is seeking to keep
secret. This process of uncovering names must involve much more
than merely restating that which is in the public domain. The process
of uncovering names must include tcchnioues like: (1) seeking unau-
thorized access to classified information, (2) a comprehensive counter-
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intelligence effort by engaging in physical surveillance, electronic sur-
veillance abroad and other techniques of espionage directed at under-
cover intelligence employees, or (3) collating information from multi-
ple documentary sources. CIA Deputy Director Carlucci in describing
the activities of a particular group illustrated what the Committee
intends by the term "uncover":
[T]hey are engaged in an elaborate and sophisticated operation
involving the collating of information from multiple documentary
sources and the penetration of U.S. official establishments. There is
no reason why, in addition to cultivating sources in the State Depart-
ment, embassies and consulates, they cannot engage in physical sur-
veillance, electronic surveillance abroad or any other form of investi-
gative technique. Unlike the intelligence agencies, they have no legal
constraints on the use of physical surveillance and no constraints on
any investigation they may conduct of U.S. persons abroad. Basically
what is described in "Dirty Work II" is very little different from the
kind of counterintelligence operations that one might expect a hostile
intelligence service to mount against us.
... the activities that these bills attempt to deal with are
a systematic, purposeful job of uncovering identities 6
The Committee intends that section 501 (c) and section 502(e) be
read to make it clear that :
? 501 (c) does not seek to prohibit discussion generally,
but is directed at the individual who takes it upon himself
to bring intelligence activity to a halt and who does this,
not by urging a change in public law or policy, but by ferret-
ing out the identities of individuals who are involved in
intelligence activities and by disclosing those identities with
the intent the intelligence functions will be disrupted by the
disclosure itself.7
Such an individual does not offer information or ideas for "unin-
hibited, robust, and wide-open" public debate or discussion. New York
Times Co. v. Sullivan, 377 U.S. 255, 270 (1964). Instead, he deliberately
uses the disclosure of names, the intentional "blowing of cover", to
engage in guerrilla warfare in order to prevent or disrupt activities
of which he disapproves. He is, in effect, a counter-intelligence agent
who uses the disclosure of names as an act of sabotage.
The Committee believes that section 502(e) is fully consistent with
the following comments of the chief sponsor of the bill, Senator
Chafee, when testifying before the Committee :
This is an intolerable situation. As legislators, I believe
that we have a responsibility to draft a bill which places
criminal penalties on those who are in the business of exposing
our agents, and, which, at the same time, does not threaten
the critic of intelligence policy or the journalist who might
reveal the name of an agent in the course of a news report.
6 Statement of Frank C. Carlucci, Denuty Director of Central Intelligence, on S. 2216,
before the Senate Committee on the Judiciary. Sept. 5. 1980, p. S.
7 Statement of Robert L. Keuch. Associate Deputy Attorney General, on S. 2216, before
the Senate Committee on the Judiciary. Sept. 5, 1980, p. 7.
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We have carefully differentiated between the journalist
who may reveal the name of an agent in a news article and
the person who has made it his purpose and business to reveal
the names of agents, and has engaged in a pattern of activities
intended to do so. Clearly, the legitimate journalist would not
be engaged in such a pattern of activities .8
To meet the standard of the bill, a discloser must be engaged in a
purposeful enterprise of revealing names-he must, in short, be in
the business of "naming names."
The following are illustrations of activities which would not be
covered :
An effort by a newspaper to uncover CIA connections with it,
including learning the names of its employees who worked for
the CIA.
An effort by a university or a church to learn if any of its
employees had worked for the CIA. (These are activities intended
to enforce the internal rules of the organization and not identify
and expose CIA agents.)
An investigation by a newspaper of possible CIA connections
with the Watergate burglaries. (This would be an activity under-
taken to learn about the agency's connections with the burglaries
and not to identify and expose CIA agents.)
An investigation by a scholar or a reporter of the Phoenix
program in Vietnam. (This would be an activity intended to
investigate a controversial program, not to reveal names.)
The government, of course, has the burden of demonstrating that
the pattern of activities was with the requisite intent to uncover and
expose covert agents and that the disclosure was not an integral part
of an activity protected by the First Amendment. The government's
proof could be rebutted by demonstrating some alternative purpose
other than identification and exposure of agents or that the disclosure
was an integral part of an activity protected by the First Amendment.
The government must also show that the discloser had reason to believe
that the activities would impair or impede the foreign intelligence
activities of the United States. For example, a discloser could show
that by nrintin:r a name of someone generally known as a CIA officer,
he could not reasonably have expected that such disclosure would im-
pair or impede the foreign intelligence activities of the United States.
Section 500(a) states that "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 relationship to the
United States is the basis for the prosecution." The words "publicly
acknowledged" are intended to encompass such public activities as
official publications of the United States, or official statements or press
releases made by those acting on behalf of the United States, which
8 Statement of senator John H. Chafee on S. 2216, before the Senate Committee on the
Judiciary, Sept. 5. 1980, pp. 2 and 7.
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specifically acknowledge an intelligence relationship. The United
States has "revealed" an intelligence relationship if it has disclosed
information which names, or leads directly to the identification of,
an individual as a covert agent. Information does not lead directly
to such an identification if the identification can be made only after
an effort to seek out and compare, cross-reference, and collate informa-
tion from several publications or sources which in themselves evidence
an effort by the United States to conceal this identity.
Section 502(b) (1) and (2) ensure that a prosecution cannot be
maintained under section 501(a), (b), or (c), upon theories of aiding
and abetting, misprison of a felony, or conspiracy, against an individ-
ual who does not actually disclose information unless the government
can prove the "pattern of activities" and the purpose and "reason to
believe" elements which are part of the substantive offense of section
501(c). A reporter to whom is disclosed, illegally, the identity of a
covert agent by a person prosecutable under section 501 (a) or (b)
would most likely not be engaging in the requisite course of conduct,
because he would not likely be engaged in a pattern of activities in-
tended to identify and expose covert agents.
Section 502(c) is intended to make clear that disclosures made
directly to the House or Senate Intelligence Committees are not
criminal offenses.
Section 502(d) states that "it shall not be an offense under section
501 for an individual to disclose information that solely identifies
himself as a covert agent." The word "solely" is intended to make
clear that such an individual cannot be subject to the penalties of
section 501 simply on the grounds that he revealed his own identity
as a covert agent.
Section 502(e). The Committee devoted considerable attention to
the drafting of section 502(e), the major addition which it made to
the bill as reported by the Select Committee. In adding this provision,
the Committee did not intend in any way to alter the coverage of the
bill from that which it understands to be the intent of the Select
Committee. It added this section solely to ensure that the bill would
not be facially unconstitutional on grounds of either vagueness or
overbreadth.
The "void for vagueness" doctrine, which is rooted in the due
process requirement of the Fifth Amendment, requires that a statute
be drawn with sufficient specificity to give the public fair warning of
what conduct is proscribed and what is not. Collauttie v. Franklin,
99 S.Ct. 675 (1979), Grayned v. City of Rockford, 408 U.S. 104, 108-
109 (1972). The Committee was concerned that those engaged in ac-
tivity protected by the First Amendment, such as reporting or schol-
arly analysis, would be uncertain whether a disclosure which was an
integral part of such activity would be proscribed by the statute. The
Select Committee's Report stated that such disclosure would not be
proscribed, but the language of the statute itself contained no such
clear-cut statement. The Committee felt that it was necessary to place
this bar to prosecution in the statute in order to cure the vagueness
problem and also to ensure that the statute would not be held uncon-
stitutional on overbreadth grounds. Even if a statute is unambiguous
it could still be unconstitutional if it prohibits or substantially deters
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activity protected by the First Amendment. Graynard, supra at 11.5;
U.S. v. Robel, 389 U.S. 258, 265-66 (1967).
The Committee believes that the statute could be held to be uncon-
stitutionally overboard without section 502(e). In reaching this con-
clusion, the Committee was influenced by the many communications
it received from academic experts and press groups and the many
editorials in newspapers throughout the country which argued that
the statute could chill protected First Amendment activity. The flood
of alarm from the press is itself objective evidence of the chilling ef-
fect of the bill without section 502(e). The Committee is confident
that the addition of this section will remove all such fears by making
clear that any disclosure which was an integral part of newsgathering,
reporting and publishing would be beyond the reach of the statute.
The Committee uses the phrase "integral part"-taken from the
Select Committee report where its meaning is not discussed-to ensure
that the prohibited activity is not artificially grafted onto another
activity in order to avoid prosecution. For example, an individual
who was in the "business of naming names" could not avoid prosecu-
tion for publishing a list of names by inserting a paragraph at the
head of the list asserting that the list was being published in order to
criticize the government.
The Committee intends that the "integral part" test follow the
reasoning of the Supreme Court in considering whether pictures
which might themselves constitute obscenity are protected if included
in a news article. The Court held that since the article was not "a mere
vehicle" for the publication of the pictures but rather the publication
of the pictures was "relevant to the theme of the article" and "ration-
ally related" to the article the publication of the pictures was protected.
KOIS v. Wisconsin. 408 U. S. 229. 231 (1971).
However, the phrase is not intended to permit the courts to second
guess a reporter or editor about whether it was "necessary" to publish
the information. As the Supreme Court has repeatedly made clear, the
First Amendment does not permit courts to exercise judgment as to
what the press needs to print in order to give a story credibility or
advance the political purposes of the writer. Chief Justice Warren
Burger writing for the Court in Nebraska Press Association v. Stuart,
427 U.S. 539 (1976) put the point, this way:
We have learned, and continue to learn, from what we view
as the unhappy experiences of other nations where govern-
ment has been allowed to meddle in the internal editorial af-
fairs of newspapers. Regardless of how beneficient-sounding
the purposes of controlling the press might be, we ... remain
intensely skeptical about those measures that would allow
government to insinuate itself into the editorial rooms of this
Nation's press.
Id. at 560-61, quoting Miami Herald Publishing Co. v. Torrillo, 418
U.S. 241, 259 (1974) (White, concurring), see also Cox Broadcasting
Corp. v. Cohn, 420 U.S. 469, 496 (1975) ; New York Times Co. v. Sulli-
ran, 376 U.S. 254.269-283 (1964). "For better or worse, editing is what
editors are for; and editing is selection and choice of material." Colum-
bia Broadcasting Systems, Inc. v. Democratic National C mmu.ittee, 412
U. S. 94, 124 (1973).
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The illustrations included in section 502(e) by the Committee are
merely examples of the kinds of activities which are protected by the
First Amendment and are not intended to be an exclusive list. By in-
cluding the words "or other activities protected by the First Amend-
ment", the Committee meant to indicate that a disclosure which was
an integral part of any activity protected by the First Amendment
would be protected. In most cases it will be clear whether an activity is
protected by the First Amendment; where it is not clear, it will be a
matter for the courts to decide.
SECTION 503-PROCEDURES FOR ESTABLISHING COVER FOR INTELLIGENCE
OFFICERS AND EMPLOYEES
Section 503 requires the President to establish procedures to ensure
that undercover intelligence officers and employees receive effective
cover. To this end, the section also stipulates that the procedures shall
provide that those departments and agencies of the government desig-
nated by the President to provide assistance for cover arrangements
shall provide whatever assistance the President deems necessary to
effectively maintain the secrecy of such officers and employees.
The Committee, to ensure that there would be no alteration in cur-
rent procedures, provided specific statutory exception to this mandate
for the Peace Corps and the Agency for International Development
(All)). There was no intent by the Senate Intelligence Committee to
alter the current Executive Branch prohibitions against CIA use of
these agencies for cover. While there was no thought that the CIA
might alter these arrangements in response to this section, the Com-
mittee provided a statutory exception to prevent any public perception
that these agencies might be used in the future as cover for agents.
The rationale for barring such use of the Peace Corps has been
acknowledged by every President since its formation. Because of the
vital importance of Peace Corps Volunteers and staff being able to
fulfill their essential purpose of building links between the United
States and the peoples of developing countries at the grassroots level,
of providing practical and humanitarian assistance on a voluntary
basis and of demonstrating through the personal commitment of the
volunteers the interest of American citizens in the welfare of individ-
uals in developing countries, the Peace Corps also has been substan-
tially separate from the formal day-to-day official relations of govern-
ments. It is, has been, and must continue to be completely and absolutely
separated from all intelligence activities. For that reason, the Peace
Corps specifically bars individuals with any intelligence background
from volunteer or employee positions with the Peace Corps. In addi-
tion to being barred from using Peace Corps volunteers as cover, under
current Presidential policy directives, the intelligence community also
has been barred from contacting, questioning or in any other way of
seeking to use volunteers as intelligence sources. To insure that section
503 is not perceived as altering the independence of the Peace Corps,
the Committee adopted this amendment excluding that agency from
the provisions of this section.
Similarly, in not desiring to alter current Executive Branch pro-
hibitions against the use of the Agency for International Development
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(AID) as cover for intelligence agents, the Committee felt a statutory
exception for AID also was desirable. The development role of AID,
with its substantial involvement at the community level in people-to-
people projects, also makes its separation from any intelligence role
essential. There was no intent to distinguish between AID and the
newly established International Development Cooperation Agency
(IDCA), including its components, which coordinates the development
functions of the Executive Branch. Development assistance programs
under IDCA are designed to promote basic human needs and aid to
the neediest in the developing world.
The Committee action was also not intended to alter in any way
existing understandings exempting other agencies such as the Inter-
national Communication Agency. This agency serves a vital function in
explaining to foreign audiences the values and strengths of our politi-
cal, social and economic system. ICA sponsors exhibits and libraries,
sends nearly two thousand speakers overseas each year, brings thou-
sand of international visitors and scholars to the United States, con-
ducts seminars and conferences in which ideas are freely exchanged,
and is the parent agency of the Voice of America which broadcasts in
39 languages to audiences worldwide. As stated by ICA Director John
E. Reinhardt in a letter dated September 18, 1980 to the Chairman :
If this Agency is to maintain its credibility and effective-
ness as the agency of the United States dedicated to public
diplomacy, it is vitally important that no suspicion ever come
to rest that its Fulbright scholars, exchange grantees or
Agency personnel are covert intelligence officers. President
Carter, in his memorandum to me of March 13, 1978, stated
categorically that "the Agency will undertake no activi-
ties which are covert, manipulative or propagandistic."
SECTION 504-EXTRATERRITORIAL JURISDICTION
This section is intended to remove any doubt of the Congress' intent
to authorize the federal government to prosecute a United States citi-
zen or permanent resident alien for an offense under section 501 com-
mitted outside of the United States.a
SECTION 505-PROVIDING INFORMATION TO CONGRESS
This section is intended to make clear that no provision of the legis-
lation authorizes the Executive branch to withhold information from
the Congress.
SECTION 506-DEFINITIONS
Section. 506(1) defines "classified information." It means identifi-
able information or material which has been given protection from
unauthorized disclosure for reasons of national security pursuant to
the provisions of a statute or executive order.
Section 506(2) defines "authorized." When used with respect to
access to classified information it means having authority, right, or
9 For discussion of Congress's power to authorize such prosecution, see Notes. Extra-
territorial Jurisdiction-Criminal Law 13 Harv. Int. Law Journal 347: Extraterritorial
Application of Penal Legislation, 64 Mich. Law Rev. 609: and Working Papers of the
National Commission on Reform of Federal Criminal Laws. Vol. 1, p. 69 (1970).
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permission pursuant to the provisions of a statute, executive order,
directive of the head of any department or agency engaged in foreign
intelligence or foreign counterintelligence activities, order of any
United States court, or the provisions of any rule of the House of Rep-
resentatives or resolution of the Senate which assigns responsibility
within the respective House of Congress for the oversight of intelli-
gence activities.
Thus, the bill would not impose criminal penalties for disclosure
made pursuant to a federal court order or to either of the intelligence
oversight committees, or for disclosures otherwise authorized by stat-
ute, executive order, or departmental directive.
Section 506 (3) defines "disclose." It means to communicate, provide,
impart, transmit, transfer, convey, publish or otherwise make avail-
able.
Section 506(4) defines "covert agent." The term encompasses three
distinct groups. In the first group are officers or employees of (or
members of the Armed Forces assigned to) an intelligence agency
whose identities are classified and who are serving outside the United
States at the time of the disclosure or have so served within the pre-
vious five years.
In the second group are U.S. citizens in the United States who are
agents or informants of the foreign counterintelligence or foreign
counterterrorism components of the FBI, or U.S. citizens outside the
U.S. who are agents of, or informants or sources of operational assist-
ance to an intelligence agency. In each instance the intelligence rela-
tionship must be classified. Domestic agents and informants of the
CIA or the Department of Defense are not included within the defini-
tion.
In the third group are present or former agents of an intelligence
agency and informants or sources of operational assistance to an in-
telligence agency whose identities are classified and who are not U.S.
citizens.
The Committee intends the term "agent" to be construed according
to traditional agency law. Essentially, an agent is a non-employee
over whom is exercised a degree of direction and control.. A "source
of operational assistance", on the other hand, is a non-employee who
is not necessarily subject to direction and control, but who supports
or provides assistance to activities which are under direction and
control.
Section 506(5) defines "intelligence agency." It means the Central
Intelligence Agency, any foreign intelligence component of the De-
partment of Defense, or the foreign counterintelligence or foreign
counterterrorism components of the FBI.
Section, 506(6) defines "informant." It means any individual who
furnishes information to an intelligence agency in the course of a
confidential relationshp protecting the identity of such individual
from public disclosure. This definition, along with that of "covert
agent", ensures that the term "informant" does not include all possible
sources of assistance or information, but is narrowly defined to bring
within it a limited number of individuals whose identity is classified
and whose relationships with an agency are or have been part of an
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established foreign intelligence, foreign counterintelligence, or foreign
counterterrorism collection operation or programs.
Section 506(7) defines "officer" and "employee" with the definition
given such terms by section 2104 and 2105, respectively, of title 5,
United States Code.
Section 506(8) defines "Armed Forces" to mean the Army, Navy,
Air Force, Marine Corps, and Coast Guard.
Section 506(9) defines "United States." When used in a geographic
sense it means all areas under the territorial sovereignty of the United
States and the Trust Territory of the Pacific Islands.
Section 506(10) states that "the term 'pattern of activities' requires
a series of acts with a common purpose or objective." This ensures,
among other things, that an isolated disclosure not part of a pattern
of activities intended to identify and expose is not subject to the pen-
alties in section 501(c). A pattern of activities cannot be random acts,
but must be part of a systematic effort to identify and expose iden-
tities of covert agents.
Section 5067. Although the Committee is convinced that the bill, as
amended, is constitutional, it added a provision providing for standing
and expedited appeal. In adding this provision, the Committee did
not intend to suggest that a newspaper contemplating the disclosure
of an identity should first seek judicial review.
Section 508. This section provides for severability so that if one sec-
tion of the Act is found to be unconstitutional, the rest of the Act will
be unaffected.
COST ESTIMATE OF THE CONGRESSIONAL BUDGET OFFICE
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, D.C., September 22,1980.
Hon. EDWARD M. KENNEDY,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
DEAR MR. CHAIRMAN : Pursuant to Section 403 of the Congressional
Budget Act of 1974, the Congressional Budget Office has reviewed
S. 2216, the Intelligence Identities Protection Act, as ordered reported
by the Senate Committee on the Judiciary, September 17, 1980.
The bill establishes fines of $15,000 to $50,000 for intentional dis-
closure of information identifying covert agents, and directs the
President to establish procedures to ensure that these identities are
effectively concealed. The bill also specifies procedures by which inter-
ested parties may seek immediate action to determine the constitu-
tionality of any provision of this bill or how it was applied.
Based on information from the Central Intelligence Agency and
the Department of Justice, it is expected that no significant additional
costs to the federal government will be incurred as a result of this
legislation. While it is not possible to estimate the potential revenues
from fines, it is expected that few violations of this act will occur and
no significant revenues will be received.
Sincerely,
ALICE M. RIVLIN, Director.
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EVALUATION OF REGULATORY IMPACT
In accordance with rule XXIX of the Standing Rules of the Sen-
ate, the Committee finds that, with the possible exception of section
503(a), no regulatory impact will be incurred in implementing the
provisions of this legislation.
In accordance with rule XXIX(a) (2) of the Standing Rules of the
Senate, the Committee finds that it is impracticable to comply with the
requirement for an evaluation of the regulatory impact of section
503(a) of this legislation for the following reasons :
(1) Section 503(a), concerning "Procedures for Establishing
Cover for Intelligence Officers and Employees," provides that the
President shall establish such procedures as the President deter-
mines are necessary to provide effective cover for intelligence
officers and employees. The provision itself neither establishes such
procedures nor requires the President to change existing pro-
cedures. Thus it is not possible for the Committee to determine
whether the President will in fact establish new procedures for
cover, or, in the event new procedures are established, what the
regulatory impact of such new procedures might be.
(2) The Committee is therefore unable to evaluate the impact
of the provision in terms of the number of individuals who may
be affected, the economic impact of any new procedures, the im-
pact on the personal privacy of the individuals concerned, or the
additional paperwork which might result from new procedures.
COMMITTEE VOTES
On September 17, 1980, the Committee met to mark up S. 2216, as
reported by the Select Committee, and amendments to this bill were
adopted by the following votes :
(1) amendment no. 1, amending the standard of section 501(c)
by a vote of 10-6;
(2) amendment no. 3, inserting a new section 502(e) by a vote
of 8-6;
(3) amendment no. 4A, exempting Peace Corps and the Agency
for International Development from section 503 by a vote of 7-6;
and
(4) amendment no. 5, providing procedures for expedited judi-
cial determination of the constitutionality of the bill by an unani-
mous voice vote.
The Committee voted to report the bill, as amended, by a vote of 13
yeas to 0 nays.
In compliance with subsection (4) of rule XXIX of the Standing
Rules of the Senate, changes in existing law made by the bill, as
reported, are shown as follows (new matter is printed. in italic, and
existing law in which no change is proposed is printed in roman) :
(61 Stat. 497) Chapter 343
AN ACT To promote the national security by providing for a Secretary of
Defense ; for a National Military Establishment ; for a Department of the
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Army, a Department of the Navy, and a Department of the Air Force; and
for the coordination of the activities of the National Military Establishment
with other departments and agencies of the Government concerned with the
national security
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SHORT TITLE
That this Act may be cited as the "National Security Act of 1947."
TABLE OF CONTENTS
TITLE V-PROTECTION OF CERTAIN NATIONAL SECURITY
INFORMATION
Sec. 501. Protection of identities of certain United States undercover intelligence
officers, agents, informants and sources.
Sec. 502. Defenses and exceptions.
Sec. 503. Procedures for establishing cover for intelligence officers and em-
ployees.
Sec. 504. Extraterritorial jurisdiction.
Sec. 505. Providing information to Congress.
Sec. 506. Definitions.
* * * * * *
TITLE V-PROTECTION OF CERTAIN NATIONAL
SECURITY INFORMATION
PROTECTION OF IDENTITIES OF CERTAIN UNITED STATES UNDERCOVER INTEL-
LIGENCE OFFICERS, AGENTS, INFORMANTS AND SOURCES
SEC. 501. (a) However, having or having had authorized access to
classified information that identifies a covert agent,-intentionally dis-
closes any information identifying such covert agent to any indi-
vidual not authorized to receive classified information, knowing that
the information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert
agent's intelligence relationship to the United States, shall be fined not
more than $50,000 or imprisoned not more than ten years, or both.
(b) Whoever, as a result of having authorized access to classified in-
formation, learns the identity of a covert agent and intentionally dis-
closes any information identifying such covert agent to any individual
not authorized to receive classified information, knowing that the in-
formation disclosed so identifies such covert agent and that the United
States is taking affirmative measures to conceal such covert agent's
intelliaenee relationship to the United States, shall be fined not more
than $25,000 or imprisoned not more than five years, or both.
(c) Whoever, in the course of a pattern of activities undertaken for
the purpose of uncovering the identities of covert agents and exposing
such identities with reason to believe that such activities would im-
pair or impede the foreign intelligence activities of the United States,
discloses any information that identifies an individual as a covert agent
to any individual not authorized to receive classified information,
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knowing that the information disclosed so identifies such individual
and that the United States is taking affirmative measures to conceal
such individual's classified intelligence relationship to the United
States, shall be fined not more than $15,000 or imprisoned not more
than three years, 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 t& dis-
closure of whose intelligence relationship 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 tho case of a person who acted
in the course of a pattern of activities una e taken for the purpose of
uncovering the identities of covert agents and exposing siwch identities
with reason to believe that such activities would impair or impede the
foreign intelligence activities of the United States.
(c) It shall not be an offense under section 501 to transmit informa-
tion described in such section directly to the Select Committee on In-
telligence of the Senate or to the Permanent 8elect Committee on
Intelligence of the House of Representatives.
(d) It shall not be an offense under section 501 for an individual to
disclose information that solely identifies himself as a covert agent.
(e) It shall not be an offense under subsection, (c) of section 501 if
the disclosure of the information described in Such subsection is an in-
tegral part of another activity such as news reporting of intelligence
failures or abuses, academic study of government policies and pro-
grams, enforcement by a private organization of its internal rules
and regulations, or other activity protected by the First Amendment
to the Constitution.
PROCEDURES FOR ESTABLISHING COVER FOR INTELLIGENCE OFFICERS
AND EMPLOYEES
SEC. 503. (a) The President shall establish procedures to ensure
that any individual who is an officer or employee of an intelligence
agency, or a member of the Armed Forces assigned to duty with an
intelligence agency, whose identity as such an ofcer, employee, or
member is classified information and which the United States takes
affirmative measures to conceal is afforded all appropriate assistance to
eirsure that the identity of such individual as such an o ffacer, employee,
* member is effectively concealed. Such procedures shall provide that
any department or agency, other than the Peace Corps, the Agency for
International Development, or their respective successor agencies, des-
ignated by the President for the purposes of this section shall provide
such assistance as may be determined by the President to he necessary
in order to establish and effectively maintain the secrecy of the identity
of such individual as such an ofcer, employee, or member.
(b) Procedures established by the President pursuant to subsection
(a) shall be exempt from any requirement for publication or disclosure.
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SEC. 504. 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 Nationality Act).
SEC. 505. Nothing in this title shall be construed as authority to
withhold information from Congress or from a committee of either
House of Congress.
SEC. 506. For the purposes of this title :
(1) The term "classified information" means information or
material designated and clearly marked or clearly represented,
pursuant to the provisions of a statute or Executive order (or a
regulation or order issued pursuant to a statute or Executive
order), as requiring a specific degree of protection against unau-
thorized disclosure for reasons of national security.
(2) The term "authorized", when used with respect to access to
classified information, means having authority, right, or permis-
sion pursuant to the provisions of a statute, Executive order, di-
rective of the head of any department or agency engaged in foreign
intelligence or counterintelligence activities, order of any United
States court, or provisions or any Rule of the House of Represent-
atives 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, im-
part, transmit, transfer, convey, publish, or otherwise make
available.
(4) The term "covert agent" means-
(A) an officer or employee of an intelligence agency or
a member of the Armed Forces assigned to duty with an intel-
ligence agency,
(i) whose identity as such an officer, employee, or
member is classified information, and
(ii) who is serving outside the United States or has
within the last five years served outside the United
States; or
(B) a United States citizen whose intelligence relationship
to the United States is classified information and
(i) who resides and acts outside the United States as
an agent of, or informant or source of operational assist-
ance to, an intelligence agency, or
(ii) who is at the time of the disclosure acting as an
agent of, or informant to, the foreign counterintelligence
or foreign counterterrorism components of the Federal
Bureau of Investigation; or
(C) an individual, other than a United States citizen,
whose past or present intelligence relationship to the United
States is classified information and who is a present or former
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aVent of, or a present or former informant or source of opera-
tional assistance to, an intelligence agency.
(5) The term "intelligence agency" means the Central Intel-
ligence Agency, a foreign intelligence component of the Depart-
ment of Defense, or the foreign counterintelligence or foreign
counterterrorism components of the Federal Bureau of Investiga-
tion.
(6) The term "informant" means any individual who furnishes
information to an intelligence agency in the course of a confiden-
tial relationship protecting the identity of such individual from
public disclosure.
(7) The terms "officer" and "employee" have the meanings
given such terms by section 2104 and 5015, 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.
(10) The term "pattern of activities" requires a series of acts
with a common purpose or objective.
SEC. 507. (a) Any interested party, including any news organization
or any person who intends to disclose any information identifying an
individual as a covert agent to any individual not authorized to receive
classified information, may institute in the United States District
Court for the district in which the defendant has his principal place
of business, or in the case of a newspaper or magazine, in the district
in which its principal editorial offices are located, such actions as may
be appropriate, including an action for declaratory judgment, to con-
strue the constitutionality of any provision of this title or to rule upon
the constitutionality of such provision on its face or as applied. The
district court shall immediately certify all questions of constitution-
ality of this title to the United States Court of Appeals for the appro-
priate circuit, which shall hear the matter sitting en bane.
(b) Notwithstanding any other provision of law, any decision on
a matter certified under subsection (a) shall be reviewable by appeal
directly to the Supreme Court of the United States. Such appeal shall
be brought no later than 20 days after the decision of the court of
appeals.
(c) It shall be the duty of the court of appeals and of the Supreme
Court o f the United States to advance on the docket and to expedite
to the greatest possible extent the disposition of any matter certified
under subsection (a) of this section.
SEc. 508. If any provision of this title or the application thereof to
any person or circumstance is held invalid, the remainder of this title
and the application of such provision to any other person or circum-
stance shall not be affected thereby.
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ADDITIONAL VIEWS OF SENATOR EDWARD M.
KENNEDY
The need to protect the nation against external threats and to safe-
guard the Bill of Rights imposes the difficult but necessary task to
ensure this legislation fairly achieves both goals. Our task is especially
important when proposals are made to punish speech because the
national security is said to demand such action. This is why I felt it
imperative to ask that S. 2216 be referred to the Judiciary Committee,
and why we gave the most careful consideration to whether and how
the bill should be amended to ensure that it was constitutional and
that it would not chill debate on intelligence issues.
The United States needs an effective intelligence service, and in
order for an intelligence service to operate effectively it must be able
to prevent individuals from taking the law into their own hands by
engaging in the business of naming names of intelligence agents. At
the same time, I am persuaded that we must have as free and robust
a debate on intelligence matters as is needed on other public policy
issues. In any case, regardless of our belief, the Constitution protects
such discussion and prohibits Congress from enacting statutes designed
to limit public debate.
I am persuaded that, with the changes which the Committee has
made, the bill represents a reasonable and defensible effort to meet
constitutional objections without fatally compromising the legitimate
purposes of the measure. Equally important, I am persuaded that it is
sound policy, and I hope that the bill will be quickly enacted into law.
At the same time, I believe the bill as reported by the Intelligence
Committee is not sufficiently precise to pass constitutional muster.
Although I fully subscribe to the report of the Select Committee, the
importance of the constitutional issues and the great controversy that
has surrounded the bill have led me to add this additional set of
remarks on the constitutional question.
In making an assessment of the constitutionality of the proposed
legislation, I found it useful to begin by reviewing what restrictions
Congress has in the past put on the publication of information in order
to protect national security interests. Because S. 2216 deviates in very
significant ways from all of the current espionage laws, I found them
to be of only very limited relevance in assessing the constitutionality
of the bill.
All of the existing espionage laws, which can apply to those without
authorized access to classified information, require that an individual
be engaged in an activity whose purpose is to injure the United States
or give advantage to a foreign power.,' The individual must either
intend such a result or have reason to know that it is the purpose of the
transaction. It was this requirement of "intent" that led the Supreme
Court to uphold the general espionage laws which punish disclosure of
1 18 U.S.C. 793; 18 U.B.C. 794; 18 U.S.C. 798; 42 U.B.C. 2274.
(29)
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information related to the national defense.2 Some of the espionage
laws are limited to those who currently have or have had authorized
access to classified information.3
I do not believe that these statutes or sections 501(a) and (b) of
S. 2116 raise any serious constitutional questions, but neither do they
shed any real light on the much more difficult question of punishing
the press or others who have not had authorized access to classified
information.
Congress has enacted two statutes which do apply to those without
authorized access and which seek to punish publication as well as other
unauthorized disclosure of national security information.4 Upon ex-
amination, however, these statutes turn out to be very different from
S. 2216. They deal only with highly technical information relating
to atomic energy and communications intelligence; the information
which is disclosed must have been obtained from classified sources;
and the transaction must have as its purpose, or as its reasonably fore-
seeable result, injury to the United States or advantage to a foreign
power.
S. 2216 in contrast requires no illicit purpose at all and only a
reasonable expectation that injury will result to specific programs of
the government, namely, those related to intelligence activity. The
contrast between the expectation of such injury and the intent or knowl-
edge that there will be injury to the United States is so great that prior
statutes-and the limited court interpretation of them-provide little
guidance for assessing the constitutionality of S. 2216. Moreover, these
statutes appear to require that one obtain the information from clas-
sified sources while section 501 (c) of S. 2216 does not.
In seeking to justify its constitutionality, supporters of section 501
(c) have not in fact cited the existing espionage laws. Rather they
have sought to rely on the, line of cases holding that the First Amend-
ment permits limitations on speech when the speech poses a clear and
present danger to vital interests of the Nation. A careful reading of
those cases, however, indicates that they are simply not on point.
Cases such as Debs, Abrams, and Schenck upheld the constitutionality
of statutes which made it a crime to incite others to engage in illegal
actions such as declining to accept induction into the Armed Forces.
These statutes overcame constitutional challenge because the words
spoken are intended to have the direct and immediate effect of leading
people to act, and to act in ways which were illegal.'
S. 2216 requires no such intent. The individual making the disclo-
sure may be punished with no proof of purpose at all. He commits a
crime if he makes a disclosure as part of a pattern of activities whose
purpose is to uncover and expose. The exposure need not be aimed at
a particular course, of action by others, and it need not result or even
have any likelihood that it would result in any action by anyone
else, let alone action in violation of the laws of the United States.
The cases cited would be of relevance if this statute required proof
that the disclosure was made with the intent to incite others to injure
or kill the covert agents who are identified or to take illegal actions to
impair or impede lawful intelligence activities. One way to deal with
213orin v. U.S., 312 U.S.C. 19 (1941).
318 U.S.C. 92 ; 50 U.S.C. 783(b) ; 42 U.S.C. 2277.
41.8 U.S.C. 708: 42 T7 9.r. 2274.
s Abrams v. U.S., 250 U.S. 616 (1919) ; Bradenburg v. Ohio. 396 U.S. 444 (1969) ; Debs v.
U.S., 249 U.S. 211 (1919) ; Schenck V. U.S., 240 U.S. 48 (1919).
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the constitutional problem would be to limit the statute to disclosures
which are ' intended to incite illegal actions which threaten the lives
of agents or impair or impede lawful intelligence activities. Arguably,
a statute which punishes disclosures made with a reasonable belief that
they would place a life in jeopardy would also, by analogy, be con-
stitutional. Such changes were proposed and were rejected. Without
them, these cases provide no basis for asserting that S. 2216 is
constitutional.
Some supporters of the bill have suggested that it is constitutional
because it applies only to certain individuals and not to others who are
referred to as "mainstream journalists". I reject this approach for a
simple and fundamental reason. The First Amendment was not
adopted simply to protect the rights of "mainstream journalists"-
even if one could define what that term meant. The First Amendment
was meant to protect the free exchange of ideas and viewpoints. I
would reject any suggestion that the First Amendment provides greater
protection for "objective" newsreporting than it does for advocacy.
It certainly cannot be constitutional because it excludes those who only
report the news while covering those who seek to influence policy.
For the same reason I must reject any suggestion that what is
involved here is a limitation on symbolic speech upon which limits
may be placed in circumstances that would not support limits on
verbal speech. The statutes deal not with symbolic speech, but rather,
in so far as they deal with communication at all, with verbal communi-
cation. In addition, restrictions on symbolic speech can be upheld only
if they are unrelated to the suppression of free expression of ideas;
the limitations must not be related to the content of the ideas being
expressed .6
In discussions of this legislation, much has been made of the fact
that an individual can be punished under section 501(c) for disclosing
information gleaned from public sources. The more general argument
that conduct should not be made criminal unless it involves access to
classified information proves both too much and too little. I do not
believe that, if the statute were otherwise unconstitutional, the dif-
ficulty could be cured by limiting it to those whose disclosures were
based on access to classified information, through what is known as
"leaks". I am disturbed at some of the leaks which have occurred over
the past years, but I believe that efforts to deal with this problem
should focus on the officials who leak and not on the press.
I do not believe, however, that an otherwise constitutional statute
is rendered unconstitutional merely because the person making the
disclosure did not gain access to classified information.' The prece-
E U.B. v. O'Brian, 391 U.S. 367 (1968).
* Five cases are generally cited for this proposition. One of them related to information
which is available directly from the public records and involved printing names from the
record. Cox Broadcasting Corp. v. Cohn. 420 U.S. 469, 495 (1975) (information contained
in official court records oven to Public inspection). A second related to,information heard
in open court, Oklahoma Publishing Co. v. District Court, 430 U.B. 308, 311 (1971) (mem-
hers of the press uresent in court and heard a name). In two other cases, the Supreme
Court suarested that a more. co'npellina, state interest in preventing wide distribution
could justify punishing publication of lawfully acquired information. Landmark Com-
munications v. Commonwealth of Virginia, 435 U.S. 829. 838 (1978) ("we conclude that
the Publication Virginia seeks to punish under its statute lies near the core of the First
Amendment. and the Commonwealth's interests advanced by the imposition of criminal
sanctions are insufficient to justify the actual and Potential encroachments on freedom
of speech and of the Press which follow therefrom."); Smith v. Daily Mau, 443 U.S. 97.
194 (1979) ("If the information is lawfully obtained. as it was here, the state may not
punish its publication Pxcent when necessary to further an interest more substantial
than is Present here.") The fifth ease is one in which the Supreme Court declined to find
in the. First Amendment a right by the press of access to prisons. Houchins v. KOED, Inc.,
4,38 U.S. 1. 10 (1970).
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dents do not definitely decide the question of whether disclosures
based on public sources can be penalized. The only relevant case on
national security information is U.S. v. Heine, in which Judge
Learned Hand overturned the conviction of a German agent who
assembled information which was publicly available to prepare re-
ports for the German Government." In interpreting the language of
the statute in that case, Judge Hand said that the military services
must be trusted to know what must be kept secret, and it cannot be a
crime to disclose what they make public. In S. 2216, by contrast, the
CIA is seeking to keep identities secret, and the individual who makes
the disclosure commits a crime only if he discloses a name which he
knows the government is seeking to keep secret.
The other cases cited in footnote 7 relate to criminal proceedings
and leave open the possibility that more compelling state interests
could justify the imposition of criminal penalties for disclosure of law-
fully obtained information. What can make this statute constitutional
in our view is that it punishes a pattern of conduct which has very
serious adverse consequences for the national security of the United
States and that it punishes that course of conduct only when it is not
carried out as an integral part of an activity protected by the First
Amendment to the Constitution. The Supreme Court in U.S. v. Robel
held that the government could proscribe conduct only if it drew a
distinct line between conduct which was punishable and activity pro-
tected by the First Amendment.e That is what the Committee has done
by adding section 502(e).
It is obvious that the conduct described in section 501 (c) can be
made criminal if it is not part of an activity protected by the First
Amendment. The Congress of the United States annually authorizes
the conduct of clandestine intelligence gathering and covert operations
by the CIA. In order to fulfill these goals in support of national poli-
cies vital to the survival of the nation, the intelligence agencies send
Americans abroad under various forms of cover. The success of their
activities and, in some cases at least, their safety require that their
identities not be publicly revealed and publicized. Because many of
these individuals are stationed in American embassies and enjoy the
protection of diplomatic immunity, it is very difficult to keep their
identities completely hidden.
Moreover, these Americans seek to live as normal a life as possible
not only to contribute to their cover, but because they have families
and private lives. This means that they can be followed home from
embassies, trailed about the city in which they are working, and even
have their phones tapped by other Americans. I do not believe that the
First Amendment-or any other part of the Constitution-prohibits
the Congress from passing a statute which makes it a crime for an
individual or groups of individuals to set about to pierce the veil of
secrecy which they know the United States is seeking to put around
the identities of its covert agents, to systematically uncover the names
of as many such agents as they can, and to use the' information which
they gain from this process for whatever purposes they choose.
8151 F.2d 813 (1945).
U.B. v. Robel, 389 U.S. 258, 268 n. 20 (1967).
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The only individuals who would be caught by the statute, as amended
by section 502(e), are those engaged in a systematic effort to learn
and expose identities which the government is striving to keep secret,
and to disclose them for exposure's sake or for the sake of inuring
intelligence efforts through the very fact of exposure. It would not
apply to those who reveal names as an integral part of an activity
protected by the First Amendment. For example, if the names were
disclosed to a hostile intelligence service or made public only for the
purpose of transmitting the names to would-be assassins with the
intent or expectation that the information would be used to bring about
the killing of the agent identified, the statute would no more raise
First Amendment problems than would a statute punishing an extor-
tion effort carried out by placing advertisements in a newspaper.
An additional constitutional difficulty arises from the fact that the
pattern of activities described in section 501(c), even with the changes
made by the Judiciary Committee, is still sufficiently general that it
can be read to describe the activities and normal work habits of a jour-
nalist, a scholar or a pamphleteer. The Justice Department, suggested
that this difficulty could be cured by leaving the matter to prosecutorial
discretion. However, the Supreme Court has rejected this approach
by making clear that when a statute can reach activity protected by
the First Amendment it is the duty of the legislature to provide pre-
cise standards and not to leave the matter to the discretion of
prosecutors.10
One way to solve the problem is to rewrite section 501 (c) to define a
more precise course of conduct. This might, for example, require a
showing that the individual was seeking unauthorized access to clas-
sified information or conducting surveillance of American employees
abroad using unlawful technioues. The Committee decided instead to
amend section 501 (c) only slightly and to add the new section 502(e).
This addition simply and clearly bars a prosecution when the dis-
closure is an integral part, of an activity protected by the First Amend-
ment, regardless of how the information was obtained.
The Committee's report makes clear that in certain cases it will be
for the court to decide if a particular activity is protected by the First
Amendment. But there can be no nuestion that, for example, essays
critical of the intelligence community and news reporting on intelli-
gence agencies are nrotected activities. The Committee used the word
"integral" to describe the relationship between the disclosure and the
First Amendment activity to make clear that no subterfuge could be
used to artificially link the proscribed activity to First. Amendment
conduct. The standard which we believe should be applied is that
which the Supreme Court described in asserting that something which
was obscene could not, be rendered non-obscene simply by Printing a
quotation from Voltaire on the fly leaf. The Court indicated that the
standard to be applied was whether the challenged material was
"relevant to the theme of the article" and "rationally related" to its
purPose.11
I emphasize, as does the report of the Committee. that any effort to
read into the language of section 502(e) an invitation to the judge or
1ASmith v. Ooquen, 415 U.S. 58R. 5714 (1974).
n Kois v. W{8cons n, 408 U.S. 229, 231 (1971).
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34
the jury to second guess the discloser about whether the disclosure of
names was "necessary" or even "important" for the First Amendment
activity would run contrary to a fundamental principle of the First
Amendment and render the bill unconstitutional.12
For these reasons, I feel that the amendments which the Committee
on the Judiciary has approved are essential if the constitutional chal-
lenges are to be resolved.
v Nebraska Press Association V. Stuart 427 U.B. 539, 560-561 (1976) ; Cox Broadcasting
Corp. v. Cohn, 420 U.B. 469, 496 (1975; Columbia Broadcasting Systems Inc. v. Demo-
cratic National Committee, 412 U.B. 94, 124 (1973) ; New York Times Gio. v. Sullivan,
376 U.S. 254, 269-283 (1964).
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ADDITIONAL VIEWS OF SENATOR BAYH
The Committee on the Judiciary and the Select Committee on In-
telligence have addressed in this bill a serious problem that confronts
the U.S. intelligence communit . In recent years a small number of
Americans have made concerted efforts to destroy the effectiveness of
lawfully authorized U.S. intelligence activities by systematically iden-
tifying and exposing the names of individuals who serve our country
as intelligence agents sometimes at great risk and sacrifice. They have
acted without regard for the physical dangers that United States in-
telligence agents confront in countries around the world. I am con-
vinced that legislation must be passed to deter and punish such activi-
ties, and it is vital that this bill be enacted into law without delay. It
is also of equal importance to ensure that the bill achieves its intended
result without violating constitutional rights, especially as embodied
in the First Amendment to the Constitution.
If such a law is not carefully written to meet constitutional require-
ments, it could have a chilling effect on legitimate public debate and
news reporting. Freedom of expression is the bedrock of a democratic
society and any law written to deal with the First Amendment must be
carefully drafted. And if the courts declare the statute unconstitu-
tional, the deterrent effect would be lost altogether. For these reasons,
both the Intelligence and Judiciary Committee have attempted to
strike the delicate balance between the need to punish the most damag-
ing activities and the protection of constitutional rights.
The framers of the Bill of Rights adopted, as the first amendment
to the Constitution of the United States, a prohibition against Con-
gress making any law abridging the freedom of speech, or of the press.
For nearly two centuries our nation has grown and prospered, and
struggled for survival in an often hostile world, with the First Amend-
ment as the bulwark of our freedom. There have be en periods in our
history when the freedom of speech, or freedom of the press, have
been in jeopardy because waves of hysteria swept over the land. Over
the full sweep of our national life, however, the movement has been
constantly toward the fulfillment of the highest ideals of the founding
fathers.
When legislation is proposed that could affect freedom of speech and
freedom of the press, our traditions as a free people committed to
constitutional guarantees of liberty compel us to consider any such
proposal with the utmost care. The right to engage in vigorous public
debate on the policies of government and the conduct of government
officials is crucial to the system of popular self-government for which
our country has stood since the Declaration of Independence. The role
of the press in exposing the truth is essential if the people are to be able
to judge the wisdom and correctness of their government's actions.
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Nevertheless, the First Amendment is not absolute. Punishing some-
one who falsely shouts "fire" in a crowded theater and causes a panic
does not abridge the freedom of speech.The imposition of civil damages
for the publication of malicious falsehood that damages reputations
does not abridge the freedom of the press. There are compelling needs
of the society that can justify restrictions on speech or publication, so
long as the interests are truly compelling and the restriction is nar-
rowly framed to ensure that it respects the fundamental values that the
First Amendment is designed to safeguard. In order for the Congress
to impose restrictions on the First Amendment however, the Supreme
Court has said ". . . the substantive evil must be extremely serious and
the degree of imminence extremely high before utterances can be pun-
ished . . . The danger must not be remote or even probable; it must
immediately imperil ..." 1 In addition, it is the clear obligation of the
Congress to see to it that the language of the statute meets these stand-
ards. The Supreme Court has held that "the task of writing legislation
which will stay within ... the bounds imposed by the Constitution .. .
has been committed to Congress." The Court has refused to go so far
as "judicially rewriting" a statute "to save it against constitutional
attack." 2
In considering this bill, the Select Committee on Intelligence sought
to meet First Amendment requirements by providing criminal penal-
ties in section 501(c) only for a narrow class of individuals whose
intentional, well-evidenced course of conduct involves (1) a pattern
of activities (2) intended to identify and expose covert agents, (3)
with reason to believe that such course of conduct would harm the
ability of the United States to carry on legitimate and necessary for-
eign intelligence activities. This language was adopted to make clear
that the principal intent of the enterprise must be to actively identify
covert, agents and to expose those identities, thereby excluding disclo-
sures that are an integral part of another activity where the principal
intent is clearly something else. It was the view of the Intelligence
Committee that this definition of the offense would resolve the concerns
as to the constitutionality of the bill.
After S. 2216 was referred to the Judiciary Committee, new ques-
tions were raised about its potential effects on the exercise of First
Amendment rights. In order to respond to those questions, I joined
with other members of the committee in an effort to reaffirm the intent
of the Intelligence Committee and the Judiciary Committee by an
amendment based upon the language of the Intelligence Committee's
report. 'There was a clear understanding, set forth by the Chairman
of the Judiciary Committee before he offered this amendment, that
further efforts would be made to ensure that the final language of the
bill would take into account the requirements of proper statutory
form. Given the need to act quickly upon the measure and to eliminate
widespread misunderstanding about its purpose and effect, the Ju-
diciary Committee's amendment to add section 502 (e) was necessary
in order to move towards a consensus without which passage of S.
2216 would be difficult if not impossible.
1 Landmark Communications, Inc. V. Virginia, 435 U.S. 829 (1977).
z United States v. Robel, 389 U.S. 258, 267 (1967) ; Aptheker v. Secretary of State, 378
U.S. 500, 515 (1964).
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Immediately after the Judiciary Committee voted to report S. 2216
with its amendments, representatives of both the Intelligence and
Judiciary Committees met to carry forward the necessary efforts to
revise the language with a view to the widest possible agreement. There
followed a meeting of representatives of the two committees with of-
ficials of the Department of Justice and the Central Intelligence
Agency to review their concerns. Additional discussions between the
committees' representatives have brought to bear the full range of
views on these deliberations. It is my belief that the commitment to
work out these differences is of paramount importance.
I supported the Judiciary Committee amendment as part of this
urgent process of achieving a consensus to facilitate prompt enact-
ment of the bill.
The amendment as presently drafted raises real questions about the
probabilities of effective prosecution. As it stands now, a defendant
may assert that his conduct is "news reporting" or "academic study"
and thereby seek an exemption from the statute. This statutory formu-
lation is likely to result in conflicting legal interpretations and court
decisions on what are (and what are not) the proper bounds of "news
reporting" or "academic study."
Other difficulties arise from the term "intelligence failures or
abuses." For example, the "graymail" danger might compel dropping
the prosecution. While appropriate for an explanation of the bill in
legislative history, this particular language formulation in the statute
tends to raise more questions than it answers.
The central point of the effort to allay misgivings about the bill is
to make clear that the statute must not be used to abridge First Amend-
ment rights and that its specific purpose is to punish only those whose
conduct is akin to shouting fire in a crowded theater when there is no
fire. I believe this point can be, made without language that creates
serious obstacles to the ability of the courts to determine whether or
not a particular course of conduct is an offense under the statute.
While the issues raised in the Judiciary Committee were not spe-
cifically raised in such formulation in the Select Committee, they were
touched upon in that committee's discussions of constitutional rights.
At that time, I had concerns that perhaps we had not adequately dealt
with some important constitutional problems. When the further
opportunity arise to participate in the process which would delineate
and refine certain constitutional questions, I participated in the
Judiciary Committee's efforts with my express concern being to craft
statutory language which would better reflect the intent of both the
Intelligence and Judiciary Committees.
Nonetheless, I must reiterate that if compromise language cannot
be agreed to during this process, I have no hesitation in supporting
S. 2216 as reported by the Select Committee. This bill is important to
the effectiveness and security of our intelligence officers who serve our
nation's interests and should be passed quickly and expeditiously.
Bnica BAYS.
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ADDITIONAL VIEWS OF SENATORS THURMOND,
LAXALT, HATCH, DOLE AND SIMPSON
We are concerned to note that the four substantive amendments
adopted by the Judiciary Committee could well gut the effectiveness
of this legislation which was originally drafted to prevent the flagrant
and intentional exposure of the identities of covert intelligence em-
ployees and agents by individuals whose only possible purpose in
doing so was to destroy our nation's intelligence capabilities.
Section 501 (c) of the bill was carefully crafted to protect legitimate
publishing activities and to prosecute the obvious and flagrant ex-
posures of intelligence identities-the "naming of names"-that is
intended to cripple the ability of our intelligence agencies to under-
take the essential clandestine collection of intelligence information.
As amended by the Judiciary Committee, Sec. 501(c) now precludes
any possibility of prosecution for flagrant exposures as long as the
individual or organization publishing such information can effec-
tively claim any prior publication-no matter how obscure the source
and limited the distribution or where the prior publication took place.
Consequently, those irresponsible publishers who would violate the
spirit of this legislation have only to enlist the cooperation of an
obscure foreign periodical in order to continue their exposures of the
identities of this nation's covert intelligence employees and agents.
Although such cooperative efforts may arguably be an illegal con-
spiratorial activity, it would be an extremely difficult task to discover
and prove the existence of such a conspiracy.
The Committee has also adopted by amendment a new Subsection (e)
to Sec. 502 that makes it a defense to prosecution if exposures, how-
ever flagrant, are ". . . an integral part of another activity such as news
reporting of intelligence failures or abuses, academic study of govern-
ment policies and programs, enforcement by a private organization
of its internal rules and regulations, or other activities protected by
the First Amendment to the Constitution". Arguments were made
that the amendment was intended only to guarantee First Amendment
rights for the specific activities noted-news reporting, academic
studies and private organization activities-and any other activity
construed to be protected by the First Amendment. As our colleague
on the Judiciary Committee, Howell Heflin (D-AL), stated, "How
do you legislate what's included in the considerations of the First
Amendment?" That's a good question and should give anyone serious
reservations. Senator Simpson offered a modification to the amend-
ment which would simply have eliminated the specific enumerations
as follows : "(e) It shall not be an offense under subsection (c) of
section 501 if the disclosure of the information described in such
subsection is protected by the first amendment to the Constitution".
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Why make any specific exceptions? Activities are either covered by
the First Amendment to the Constitution or they are not. That's
for the courts to decide-not for the Congress. This amendment is
a total distortion of any previous conception of First Amendment
considerations.
All of these amendments are apparently creations of the fertile
minds of overzealous staff members of the American Civil Liberties
Union. They serve no purpose other than to undermine this legislation
with loopholes under the guise of an expressed concern for First
Amendment rights. Such rights are already guaranteed and no legisla-
tive efforts we undertake in that regard will have any effect.
The Committee also adopted an amendment that would exclude the
Peace Corps and the Agency for International Development from the
list of agencies of the Federal Government that are available to provide
"official cover" to undercover employees of our intelligence agencies.
Traditionally, the Peace Corps has never provided-and should not
provide-such cover and it is effectively precluded from doing so by
statute. The Agency for International Development has not provided
cover in the past few years but is not precluded by statute from doing
so. We object to the specific statutory exemption of any Federal agency
from being able to provide cover for intelligence agency employees for
two reasons : (1) it makes it easier for unauthorized personnel to deter-
mine which overseas United States employees are intelligence employ-
ees, thus making their cover virtually transparent; and (2) it unnec-
essarily reduces the flexibility which must be available to the President
in the conduct of foreign intelligence information gathering. In cer-
tain circumstances, the use of cover within a specific agency may well
be essential to the collection of some type of foreign intelligence infor-
mation, and the President should always have the power to authorize
the use of such cover when necessary. We do not wish to revoke the
Peace Corps statutory exemption, since the number of Peace Corps
volunteers and employees are so few and their access to foreign sources
of worthwhile intelligence information is so very limited. But we do
not wish to establish any further exemptions that will only make the
problems associated with adequate intelligence cover that much more
difficult to overcome.
Additionally, the "Judicial Review" amendment adopted by the
Committee is far too broadly written and it can only result in an end-
less flurry of court cases. All manner of individuals or institutions, re-
gardless of standing, will be able to initiate "such actions as may be
appropriate" in construing the constitutionality of any provision in
this bill. We believe that such an expedited review procedure can and
should be accomplished within the context of each actual case in con-
troversy, and it is neither necessary nor an advisable provision to have
in this legislation.
0
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