INTELLIGENCE IDENTITIES PROTECTION ACT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200090008-9
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 34
• Document Creation Date: December 21, 2016
• Document Release Date: October 29, 2008
• Sequence Number: 8
• Publication Date: August 18, 1980
• Content Type: REPORT

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Calendar No. 979
tEGISLATIVE COUNSEL
FILE COPY
96'r CONGRESS
Rd Session
BZKW
{
No. 96-896
INTELLIGENCE IDENTITIES PROTECTION ACT
AuousT 1.8, 1980.-Ordered to be printed
Filed under authority of the order of the Senate of August 6, legislative day
June 12, 1980
Mr. CHAFES (for Mr. BATH), for the Select Committee on Intelligence,
submitted the following
REPORT
together with
ADDITIONAL VIEWS
[To accompany S. 2216]
The Select Committee on Intelligence, 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. PURPOSE
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.
AMENDMBNTs
Strike all after the enacting clause and insert in lieu thereof the
following :
That this Act may be cited as the "Intelligence Identities Protection Act of 1990".
Sac. 2 (a) The National Security Act of 1947 is amended by adding at the
end thereof the following new title :
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TITLE V-PROTECTION OF CERTAIN NATIONAL SECURITY
INFORMATION
PROTECTION OF IDENTITIES OF CERTAIN UNITED STATES UNDERCOVER INTELLIGENCE
OFFICERS, AORIYTS, Ii7FOBMANTS AND SOURCES
SEC. 501. (a) Whoever, having:drhaving had authorized access to classified
information that identifies a. covert agent, intentionally discloses any information
identifying such covert; agent to any individual not authorized to receive classi-
fied 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 informa-
tion, learns the identity of a covert agent and intentionally discloses any infor-
mation identifying such covert agent to any individual 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 $25,000 or imprisoned not more than five years, or both.
(c) Whoever, in the course of a pattern of activities intended to identify and
expose covert agents and with reason to believe that such activities would impair
or impede the foreign intelligence activities of the United States, discloses any
information that identifies an individual as a covert agent to any individual not
authorized to receive classified information, knowing that the information dis-
closed so identifies such individual and that the United States is taking affirma-
tive 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.
Sec. 502. (a) It is a defense to a prosecution under section 501 that before the
commission of the offense with which the defendant is charged, the United States
had publicly acknowledged or revealed the intelligence relationship to the United
States of the individual the disclosure of whose intelligence relationship to the
Unitel States is the basis for the prosecution.
(b) (1) Subject to paragraph (2), no person other than a person committing
an offense under section 501 shall be subject to prosecution under such section
by virtue of section 2 or 4 of title 18, United States Code, or shall be subject to
prosecution for conspiracy to commit an offense under such section.
(2) Paragraph (1) shall not apply in the case of a person who acted 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 for-
eign intelligence activities of the United States.
(c) It shall not be an offense under section 501 to transmit information de-
scribed in such section directly to the Select Committee on Intelligence of the
Senate or to the Permanent Select Committee on Intelligence of the House of
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.
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 officer, employee, or member is classified information and which the
United States takes affirmative measures to conceal is afforded all appropriate
assistance to ensure that the identify of such individual as such an officer,
employee, or member is effectively concealed. Such procedures shall provide that
any department or agency designated by the President for the purposes of this
section shall provide such assistance as may be determined by the President
to be necessary in order to establish and effectively maintain the secrecy of
the identity of such individual as such officer, 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 des-
ignated and clearly marked or clearly represented, pursuant to the provi-
sions of a statute or Executive order (or a regulation or order issued pur-
suant to a statute or Executive order), as requiring a specific degree of
protection against unauthorized disclosure for reasons of national security.
(2) The term `authorized', when used with respect to access to classified
information, means having authority, right, or permission pursuant to the
provisions of a statute, Executive order, directive of the head of any depart-
ment or agency engaged in foreign intelligence or counterintelligence activi-
ties, order of any United States court, or provisions or any Rule of the
House of Representatives or resolution of the Senate which assigns respon-
sibility within the respective. House of Congress for the oversight of intelli-
gence activities.
(3) The term "disclose" means to communicate, provide, impart, trans-
mit, 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 intelligence 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
(1) who resides and acts outside the United States as an agent
of, or informant or source of operational assistance to, an intelli-
gence agency, or
(ii) who is at the time of the disclosure acting as an agent of,
or informant to, the foreign counterintelligence or foreign counter-
terrorism 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 agent of, or a present or
former informant or source of operational assistance to, an intelligence
agency.
(5) The term "intelligence agency" means the Central Intelligence Agency,
a foreign intelligence component of the Department of Defense, or the for-
eign counterintelligence or foreign counterterrorism components of the Fed-
eral Bureau of Investigation.
(6) The term "informant" means any individual who furnishes informa-
tion to an intelligence agency in the course of a confidential 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 2105, respectively, of title 5, United States Code.
(8) The term "Armed Forces" means the Army, Navy, Air Force, Marine
Corps, and Coast Guard.
(9) The term "United States", when used in a geographic sense, means
all areas under the territorial sovereignty of the United States and the
Trust Territory of the Pacific Islands.
(10) The term "pattern of activities" requires a series of acts with a
common purpose or objective.
(b) The table of contents at the beginning of such Act is amended by adding
at the end thereof the following :
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TITLE V- PROTECTION OF CERTAIN NATIONAL SECURITY
INFORMATION
Sec. 501. Protection of identities of certain United States undercover intelligence officers,
informants, and sources.
Sec. 502. Defenses and exceptions.
Sec. 501. Procedures for establishing cover for intelligence officers and employees.
Sec. 504. Extraterritorial Jurisdiction.
Sec. 505. Providing information to Congress.
Sec. 506. Definitions.
Amend the title so as to read :
A bill to amend the National Security Act of 1947 to prohibit the unauthorized
disclosure of information identifying certain United States intelligence officers,
agents, informants, and sources and to direct the President to establish procedures
to protect the secrecy of these intelligence relationships.
HISTORY OF THE BILL
In recent years, members of the House and Senate Intelligence Com-
mittees, along with other colleagues in the Congress, have become in-
creasingly concerned about the systematic effort by a small group of
Americans, including some former intelligence agency employees, to
disclose the names of covert intelligence agents. Numerous proposals
have been made in this Congress for a criminal statute to punish such
disclosure of the identities of intelligence agents.
Senator Bentsen introduced indentities protection proposals in the
94th and 95th Congresses but no action was taken. On October 17, 1979,
Representative Boland, Chairman of the House Intelligence Com-
mittee, 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-sponsored by Senators Wallop, Jackson and Chafee of
the Select Committee on Intelligence, by Senators Domenici, Nunn and
Danforth, and later by Senators Hollings, Schmitt, Simpson and
Armstrong.
Provisions for intelligence identities protection similar to Senator
Bensten'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 imposed 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 disclosure 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
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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.
S. 2284 was considered by the Select Committee on May 6 and 8,
1980, and the Committee decided to limit that bill to repeal of the
Hughes-Ryan Amendment and congressional oversight provisions. At
the meeting on May 8, the Committee deci
es ded to pursue intelligence
identiti protection using S. 2216 as the vehicle for further consider-
ation of this issue, as proposed by Senator Chafee. The 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 subject, including S.
191 introduced by Senator Bentsen on January 23, 1979. Senator Bent-
sen testified in favor of his proposal for penalizing exposure of CIA
agents' identities by persons who had authorized access to such identi-
ties. Senator Simpson testified in support of Amendment No. 1682 to
S. 1722 (the criminal code revision bill), which he introduced on
March 6,.1980, and which proposed extending penalties similar to S.
2216 to disclosure of the identities of law enforcement agents and
informants.
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," ...
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.
The Select Committee met in closed session on July 22, 1980, to
confer with representatives of the CIA and the Department of Justice
on ways to meet this problem. Committee staff were instructed to work
with staff of the House Permanent Select Committee on Intelligence
and the Administration to reach agreement on bill language that
would resolve differences and facilitate prompt action. On July 25,
1980, the House 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.
Senator Chafee offered an amendment in the nature `of a substitute
which differed from H.R. 5615, as approved by the House Committee,
on only one issue. The House Committee had approved 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 information :
Whoever, in the course of an effort to identify and expose
covert agents with the intent to impair or impede the foreign
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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.
Based on Department of Justice testimony which suggested that
the intent standard contained in the House version could well focus
on the political opinion of the accused, Senator Chafee 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.
This language has the support of CIA and the Justice Department.
Senator Bayh proposed an amendment that included the following dif-
ferent language :
Whoever, in the course of a pattern of activities intended
to impair or impede the foreign intelligence activities of the
United States by identifying and exposing covert agents, dis-
closes, with reason to 'believe that such disclosure would im-
pair or impede the foreign intelligence activities of the
United States, any information....
After lengthy discussion, Senator Bayh's amendment was defeated
9-3 with one abstention. Two other amendments to Senator Chafee's
substitute were then adopted unanimously by voice vote. An amend-
ment offered by Senator Huddleston added a definition of "pattern of
activities", and an amendment by Senator Bayh provided that it
shall not be an offense under the bill for an individual to disclose in-
formation that solely identifies himself as a covert agent. Senator
Chafee's substitute, as amended, was then adopted 11-1. S. 2216, as
amended by Senator Chafee's substitute, was approved by the Com-
mittee as the Intelligence Identities Protection Act, with a recom-
mendation for favorable action.
POSITION OF TILE ADMINISTRATION
The Administration supports S. 2216, as reported by the Select
Committee on Intelligence with amendments. Deputy Attorney Gen-
eral Charles B. Renfrew, in a letter to the Committee on July 29,
1980, stated with respect to the basic standard for criminal penalties
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7
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 information :
This formulation substantially alleviates the constitutional
and practical concerns expressed by the Justice Department
with regard to earlier versions of this bill that included a re-
quirement that prohibited disclosures be made with a specific
"intent to impair or impede" U.S. intelligence activities.
Because of the significance of this matter .... it has been
our view from the beginning that such legislation as is en-
acted must be fair, effective and enforceable. Our position has
been and remains that the absence of an intent element in this
legislation will accomplish this goal.
GENERAL STATEMENT
1. INTRODUCTION AND BACKGROUND
The Committee considered and approved this bill because, in recent
years, the United States intelligence community has been faced with
an unprecedented problem in its attempt to fulfill its responsibilities.
A small number of Americans, including some former intelligence
agency employees, have been engaged in a systematic effort to destroy
the ability of our intelligence agencies to operate clandestinely by
disclosing the names of intelligence agents.
Foremost among them has been Philip Agee, two of whose books-
"Dirty Work : The CIA in Western Europe and "Dirty Work 2: The
CIA in Africa"- have revealed the names of over 1,000 alleged CIA
officers. Louis Wolf, co-editor of the Covert Action Information
Bulletin which contains a special section titled "Naming Names",
claims that he has revealed the names of over 2,000 CIA officers in
recent years.
In December 1975, Richard S. Welch, CIA Station Chief in Athens,
Greece, was murdered in front of his home. His assassination occurred
within a month of the time that he was identified as CIA Station
Chief in the Athens Daily News. The information for this story came
from Philip Agee's Counterspy magazine.
On July 4, 1980, an American Embassy official-Mr. Richard Kins-
man-posted in Kingston, Jamaica, was the target of an assassina-
tion attempt following a published allegation that he was a CIA oper-
ative. Although Mr. Kinsman and his family were not injured in the
attack, his house and grounds were extensively damaged by sub-
machinegun fire and an explosive device. Less than 48 hours before
the attack, Louis Wolf had publicly alleged that Richard Kinsman
and 14 other U.S. Embassy officials in Jamaica were working for the
CIA. In addition to names, Wolf also provided the officials' addresses
and telephone numbers, and the license plate numbers and colors of
their automobiles. On July 7, 1980, another Embassy official named by
Wolf was the target of an apparent assassination attempt.
Over the years none of the people involved has been indicted under
the espionage laws or any other law for these malicious disclosures.
This is effective testimony for the proposition that, if these wanton
disclosures are to be stopped, a new law is needed. Until a new law is
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passed, undercover work for the United States will continue to be-
come ever less effective and ever more hazardous, while those doing
harm to the United States by exposing American undercover agents
will continue their activities without penalty.
The Committee addressed only the problems posed by the disclosure
of undercover employees and agents of American intellignnce. It
specifically decided not to address itself to the wider problems posed by
various kinds of disclosure of classified information. While deplor-
ing all "leaks" of classified intelligence information, the Committee
specifically decided not to try to delineate the proper bounds of free
speech concerning American intelligence. Rather, the Committee de-
cided to accomplish a single, narrow purpose : to punish the unau-
thorized disclosure of the identity of undercover employees or agents
in certain circumstances. The Committee's focus is further defined and
narrowed by its decision to protect the identitities of undercover per-
sonnel only when the U.S. Government is taking affirmative measures
to conceal them. Because of this focus, the Committee decided to penal-
ize disclosures in the course of a pattern of activities undertaken for
the purpose of identifying and exposing such agents, regardless of
whether these disclosures were based on classified information. Thus
the Committee's action is not an affirmation of the value of classifi-
cation. It is not a partial Official Secrets Act. It is a definitive affirma-
tion that the U.S. Government is right to have undercover employees
and agents for foreign intelligence purposes, that the Government is
right to take measures to keep such undercover arrangements secret,
and that anyone who engages in a pattern of activities that would
thwart this legitimate Governmental interest by unauhorized disclo-
sure of the identities of such personnel should be punished.
The Committee seeks to penalize any person, regardless of his status,
who engages in "a pattern of activities intended to identify and expose
covert agents and with reason to believe that such activities would im-
pair or impede the foreign intelligence activities of the United States."
In the Committee's view the First Amendment is not a license for al-
lowing such a private intelligence organization to operate under the
label "press." The Committee is not seeking to penalize, political opin-
ion, or journalistic expression. Rather, the Committee believes that
patterns of activities intended to identify and expose covert agents
with reason to believe that such activities would impair or impede the
foreign intelligence activities of the United States would be neither
political opinion nor journalism, but rather ought to be punishable as
a felony.
Security considerations preclude confirming or denying the accuracy
of specific attempts at identifying U.S. intelligence personnel. There
have, however, been many such disclosures, and not all of them are
wide of the mark. The destructive effects of these disclosures have been
varied and wide-ranging; the Select Committee is aware of numerous
examples of such effects on U.S. intelligence operations which cannot
be addressed in a public report.
Many of these disclosures can place intelligence personnel and their
families in physical danger from terrorist or violence-prone organiza-
tions. Furthermore, the professional effectiveness of officers who have
been compromised is substantially and some times irreparably dam-
aged. They must reduce or break contact with sensitive covert sources
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and continued contact must be coupled with increased defensive meas-
ures that are inevitably more costly and time-consumning. Some officers
must be removed from their assignments and returned from overseas
at substantial cost, and years of irreplaceable area experience and
linguistic skill are lost. Since the ability to reassign the compromised
officer is impaired, the pool of experienced CIA officers who can serve
abroad is being reduced. Replacement of officers thus compromised is
difficult and, in some cases, impossible. Such disclosures also sensitize
hostile security services to CIA presence and influence foreign popula-
tions, making operations far more difficult.
In addition, relations with foreign sources of intelligence have been
impaired. Sources have evidenced increased concern for their own
safety. Some active sources, and individuals contemplating coopera-
tion with the United States, have terminated or reduced their contact
with our intelligence agencies. Sources have questioned how the United
States government can expect its friends to provide information in
view of continuing disclosures that may jeopardize their careers,
liberty and lives. The result of this has been a chilling effect on these
relationships which are vital to high-quality U.S. intelligence. These
disclosures have contributed to a perception among foreign intelli-
gence services that U.S. intelligence agencies are unable to preserve
important confidences. This perception has led and may lead these
services to undertake reviews of their liaison relationships, which
have resulted in reduction of contact and reduced passage of informa-
tion. In taking these actions, some foreign services have explicitly
cited disclosures of intelligence identities.'
The Committee noted that the current laws concerning espionage
were written long before these activities commenced and are inade-
quate to prevent the harm they cause. As Attorney General Benjamin
R. Civiletti has said:'
Existing law provides inadequate protections to the men
and women who serve our nation as intelligence officers. They
need-and deserve-better protection against those who
would intentionally disclose their secret mission and jeopard-
ize their personal safety by disclosing their identities.2
The Committee took note of the fact that the identities of American
undercover intelligence personnel are not as well hidden as they
might be. Indeed part of the Committee's bill is designed to improve
their cover. But the Committee rejected the contention that the iden-
tities of imperfectly covered intelligence personnel are thereby part
of the public record. They are not. Those seeking to learn them with-
out the use of classified information must frequently engage in physi-
cal surveillance, in search of personnel records, in interviews with
neighbors and former colleagues. All of this amounts to a compre-
hensive counterintelligence effort. It may be true that one does not
have to be or to have been an intelligence officer in order to learn and
reveal the identities of American undercover agents. But in that case
one must often behave as a counterintelligence officer, using systematic
1 See testimony of Frank C. Carlucci, Deputy Director of Central Intelligence, before
the Senate Select Committee on Intelligence, June 24. 1980.
2 Address of Attorney General Benjamin R. Civiletti, "Intelligence and the Law :
Conflict or Compatibility?" 10th Annual Sonnett Memorial Lecture, Fordham University
School of Law, Jan. 15, 1980.
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investigative techniques, against the United States. The Committee has
decided that certain identities should be protected both against be-
trayal of. classified information and against such self-appointed
counterspes.
The Committee also chose to direct the President to establish pro-
cedures to ensure that all departments and agencies of the U.S. govern-
ment designated by the President to do so shall provide whatever
assistance is necessary to establish and maintain effective cover for
intelligence personnel. The Committee realized that the President
has always had the power to order any part of the Executive Branch
to provide effective cover. But the Committee is aware that intel-
ligence officers have not been provided with credentials and working
conditions indistinguishable from certain other departments. The
President heretofore has not effectively exercised his power to cause
executive departments to provide adequate cover. However, it is the
plain intent of the bill that the President establish procedures which
shall result in effective cover.
Since its creation in the 94th Congress, the Select Committee on
Intelligence has examined in open hearings and inexecutive session
United States activities to collect information from human sources
abroad. The Committee has concluded that it is absolutely essential
that our nation have intelligence information that is timely and ac-
curate. Further, the Committee believes that informed policymaking
by officials of the Executive and Legislative branches requires that
the United States collect such intelligence from human sources, for
that particular kind of intelligence provides insight into the inten-
tions of foreign powers. The United States can collect the vital human
intelligence it needs only through the operations officers of its intel-
ligence agencies. Without effective cover for U.S. intelligence officers
abroad and without assurance of anonymity for intelligence sources,
the United States cannot collect the human intelligence which it must
have to conduct an effective foreign and national defense policy. More-
over, as the United States seeks to implement its foreign policy
objectives, it requires in unusual and important situations the capa-
bility to use clandestine operators to complement its overt policy
initiatives.
The United States programs for the collection of human intelligence
have been severely impaired by the efforts of certain individuals to
disclose the identities of our undercover intelligence officers and our
sources of information. The loss of vital human intelligence which our
policymakers need, the great cost to the American taxpayer of replac-
ing intelligence resources lost due to such disclosures, and the greatly
increased risk of harm which continuing disclosures force intelligence
officers and sources to endure, are the intolerable, direct results of
the efforts of those individuals to disclose intelligence identities.
The Committee hereby makes the following findings :
(1) Successful and efficiently conducted foreign intelligence
and counterintelligence activities are vital to the national security
of the United States.
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(2) Successful and efficient foreign intelligence and counter-
intelligence activities require concealment of relationships be-
tween components of the United States Government that carry
out those activities and certain of their employees and sources of
information and assistance.
(3) The disclosure of such relationships to unauthorized per-
sons is detrimental to the successful and efficient conduct of foreign
intelligence and counterintelligence activities of the United
States.
(4) Individuals who have a concealed relationship with foreign
intelligence or counterintelligence components of the United
States Government may be exposed to physical danger if their
identities are disclosed to unauthorized persons.
(5) Organizations of determined individuals may be able to
identify and expose U.S. Government employees who have con-
cealed intelligence relationships by means of standard espionage
techniques without access to classified documents.
(6) Current law has proved inadequate to prevent such efforts.
(7) The policies, arrangements and procedures used by the Ex-
ecutive branch to provide for U.S. intelligence officers,
agents and sources must be strengthened and fully supported.
Therefore, to improve intelligence efforts of the U.S. and to protect
intelligence officers and sources from harm, the Committee reports S.
2216 to the Senate with a recommendation for favorable action thereon.
This bill makes criminal the disclosure of intelligence identities. The
Committee has concluded that such disclosures can seriously harm the
nation's ability to conduct foreign policy and provide for the common
defense and can place in jeopardy the safety and lives of the dedicated
and loyal men and women who serve this country in a difficult and dan-
gerous profession.
However, while the Committee condemns all disclosures of under-
cover intelligence identities, it has not sought to make criminal such
acts in every context. The Committee has limited the scope of this bill
in order to make criminal only those disclosures which proceed in vio-
lation of an express duty of care assumed by the discloser or where the
disclosure occurs in the context of a pattern or practice of identifica-
tion and disclosures which could reasonably be expected to impair U.S.
intelligence capabilities.
Thus, 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.
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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 information he
learned an intelligence identity. This class would include those in gov-
ernment whose jobs place them in a position to learn the identities 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 uncommon.
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.
The third and last class of individuals affected by the bill are those
who, although they may never have had authorized access to classified
information with its accompanying duty of care, engage in a deliber-
ate pattern of activities intended to identify and expose covert agents
with reason to believe that such activities would impair or impede the
foreign intelligence activities of the United States. Since this class
potentially includes any discloser of an undercover intelligence iden-
tity, 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 identify 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) in-
tended to identify and expose covert agents (3) with reason to believe
such course of conduct would impair or impede U.S. foreign intelli-
gence activities.
It is the purpose of the Committee in carefully specifying the above
class to thereby preclude 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 govern-
ment 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
intended to identify and expose covert agents and with reason to be-
lieve such activities would impair or impede the foreign intelligence
activities of the United States. Those who "cause" a felony (aiders and
abettors and accesories before the fact, as described in section 2 of Title
18 U.S.C.), those who fail to report a felony (misprisioners as de-
scribed in section 4 of Title 18), or those who conspire ( 18 U.S.C., sec.
371) could be reached if they demonstrated the requisite pattern of
activities intended to identify and expose covert agents with reason to
believe such activities would impair or impede the foreign intelligence
actvities of the United States.
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Beyond its concern for narrowing the application of the bill to those
whose duty of care, or pattern of activities, render disclosures of this
sort particularly damaging, the Committee devoted great care to lim-
iting the scope of intelligence identities whose disclosure would be
made criminal. First, it required that the protected intelligence re-
lationships be those that the United States is taking affirmative meas-
ures to conceal ; these measures include, but are not limited to, clas-
sification. Second, those who identities are protected are those who
would be in the greatest danger from foreign intelligence services
or terrorist groups should their identities be disclosed. Finally, the
Committee has sought to protect the future safety and intelligence
effectiveness of intelligence employees, agents and sources.
Using these criteria, the Committee has fashioned the definitions
of protected identities to include only covert agents of the CIA, for-
eign intelligence components of the Department of Defense, and the
foreign counterintelligence and foreign counterterrorism components
of the Federal Bureau of Investigation. In essence, these are the only
intelligence agencies whose officers or agents operate overseas.
The Committee has defined the term covert agent to include only
three categories of individuals. The first group consists of present
officers or employees of (or members of the Armed Services assigned
to) the above named agencies currently serving outside the United
States or whose professional involvement in clandestine operations
will result in their serving overseas again. Such individuals all serve
under cover, e.g., using an alias or serving in ostensibly non-intelli-
gence positions. Serving overseas, they cannot claim the protection of
the police power of the government, or, at present, of U.S. law. Ex-
posure abroad or within five years from last returning abroad (a pro-
vision calculated to include those who are home in the U.S. for a tour
or a visit or whose foreign associations and contacts are still fresh)
could-as it has already-result in heightened danger for these in-
dividuals or their families. Clearly, it would diminish their effective-
ness as clandestine intelligence personnel and could seriously impair
present and future U.S. intelligence operations.
The second category includes U.S. citizens who are agents or in-
formants of the FBI's foreign counterintelligence or foreign counter-
terrorism units and U.S. citizens who reside and act outside the U.S.
as agents, informants or sources of operational assistance to the other
intelligence agencies. These individuals are those who, because of their
service overseas (not necessarily continuous) or their involvement
in the dangerous fields of counterintelligence or counterterrorism,
could suffer adversely because of public identification with a U.S. in-
telligence agency. In the case of the FBI's agents or informants, even
though they may be present in the U.S., the nature of the individuals
and groups with which they come into contact suggests strongly the
possibility of physical danger from foreign based intelligence or
terrorist organizations.
The identity of each such individual in this second category must be
classified. This group of individuals is one whose importance to U.S.
intelligence operations is clear and vital. The category has been de-
fined in such a way as to exclude those U.S. citizens residing in the
United States whose relationship with an intelligence agency may
be concealed but who may suffer only embarrassment from the dis-
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closure of this relationship. The Committee believes that physical
danger or a reasonable possibility thereof serves as a good criterion
in shaping this and other categories of covert agents. Such a criterion
serves to exclude relationships which public policy may wish to con-
ceal but which are not significant enough to warrant the protection
of criminal sanctions.
The last category of covert agent consists of all aliens who serve, or
who have served, as agents, informants or sources of operational as-
sistance of intelligence agencies. To be included, their present or for-
mer relationship with an intelligence agency must remain classified.
The Committee feels that this more broadly defined group also reflects
the realities of life for an alien who has assisted a U.S. intelligence
agency and who remains overseas or ever hopes to return to his coun-
try. Without some assurance of protection for their present or past
relationship with the U.S. government, such individuals would not
continue the association. The further ramifications of a public dis-
closure could include reprisals against family and friends, imprison-
ment or death.
In addition to the care with which the classes of individuals affected
by the bill and those whose identities are to be protected have been
defined, the Committee has also devoted care to the other elements of
the offenses established by S.2216. All disclosures made criminal by
the bill must be intentional, i.e., the defendant must have consciously
and deliberately willed the act of disclosure. Further, the government
must prove that he knew that the sum of his acts was the disclosure
of a protected intelligence identity which he knew the government was
taking affirmative steps to conceal.
The bill additionally creates an affirmative defense to the effect that
no offense has been committed where the defendant can show that
the government has publicly acknowledged or revealed the intelli-
gence identity the disclosure of which is the subject of prosecution. The
bill also exempts an individual who discloses information that solely
identifies himself as a covert agent.
The Committee believes that it has considered and crafted the pro-
visions of S.2216 with care. The principle thrust of this effort has been
to make criminal those disclosures which clearly represent a conscious
and pernicious effort to expose agents where such exposure damages
the capability to conduct intelligence operations. Yet the Committee
also recognizes that there are other aspects of this problem of pro-
tection 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 intelligence operatives are not fully adequate. Ac-
cordingly, the Committee has included a provision requiring the
President to promulgate procedures that will help to rectify this
situation. These procedures are to ensure that intelligence cover ar-
rangements 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 intelligence
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agencies and private organizations and institutions. Nor does this
section stipulate which elements of government shall provide assist-
ance or what that assistance must be. It requires only that the Presi-
dent of the United States review these questions and determine the
appropriate interest of the United States. In so doing, the provision
recognizes the fact that only the President has the authority to truly
resolve these questions and only he can determine which improve-
ments will result in the adequate provision of cover to undercover
intelligence operatives. However, this provision is a clear congres-
sional mandate to strengthen cover arrangements.
1V. CONSTITUTIONALITY OF THE BILL
In framing S. 2216, the Committee took care to ensure that the bill
met the requirements of the Constitution. Although the courts will
make their own determination of constitutionality, the Congress has
a responsibility to make its best judgment. 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 authorized access to classified in-
formation. However, constitutional questions were raised in the hear-
ings 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), 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
. abridgi the freedom of speech, or of the press...." In inter-
preting thengFirst 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., El f brandt v. Ru8Sell,
384 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 drawit and represent a considered legis-
lative judgment that a particular mode of expression has given way
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.
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(a) Disclosure not based on classified information
The proposal advanced by the Administration would have punished
the disclosure of agents' identities by private citizens-as opposed to
present or former government employees who had authorized access
to classified information-only if such disclosure was based on classi-
fied information. Representing the Administration's view, the Depart-
ment of Justice stated that the "focus on inside access" would "seem to
be the courts more carefully fitted to the harm the Government is seek-
ing to avoid, and far less burdensome on the right of the general public
to discuss policy questions concerning foreign affairs and intelligence
activities." The Department warned against marching "over-boldly"
into the "diigicult area of political, as opposed to scientific, `born clas-
sified' information, in a context that will often border on areas of
important public policy debate." S
The legislative judgment of the Committee is that the Adminis-
tration's proposed standard, by requiring proof that disclosure is
based on classified information, raises both practical and constitutional
problems. The "particular mode of expression" that seems most likely
to harm U.S. intelligence and endanger the safety of individuals is that
exhibited only by certain publications. These publications claim that
their disclosures of agents' identities are not based on classified infor-
mation, but rather on an effort to seek out and compare, cross-refer-
ence, and collate information from unclassified sources including in-
vestigations conducted abroad. The danger posed by their disclosures
may not, therefore, depend upon their having inside access to classi-
fied information. While an intrusive investigation might uncover
evidence of the use of classified information, such an investigation
of persons engaged in both activities protected by the First Amend-
ment and possible illegal conduct woudl itself raise constitutional
concerns. Moreover, the Administration's standard would have encom-
passed all types of disclosure of agents' identities based on classified
information, including publication in newspaper stories on intelli-
gence failures and abuses or in scholarly studies of U.S. foreign and
military policies. The record does not indicate that such disclosures
pose a danger that requires deterrence by criminal penalties, and thus
it was felt that such penalties would place an unnecessary burden
on the exercise of First Amendment rights.
While rejecting the Administration's proposal, the Committee has
nevertheless taken into account the concerns it represents. Even though
section 501 (c) punishes disclosure that is not based on classified in-
formation, the government must prove that the information 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 infor-
mation" and to agents, informants, and sources "whose intelligence
relationship to the United States is classified information." In addi-
E Testimony of Associate Deputy Attorney General Robert L. Keuch, June 24, 1980.
The Justice Department cited as a "skeptical source" on this question the decision of
Judge Learned Hand in the Heine case. The court in that case reversed an espionage
conviction that was based on evidence of clandestine transmission to Nazi Germany of
information from "sources that were lawfully accessible to anyone who was willing to
take pains to find, sift and collate It.,, Judge Hand's opinion was not exnressly based on
constitutional grounds. United etatea v. Heine, 151 F. 2d 813 (2d Cir., 1945), cert. denied,
328 U.S. 833 (1946).
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tion, 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 relation-
ship to the United States. There is also a defense if the United
States had already "publicly acknowledged or revealed" that relation-
ship. Taken together, these provisions ensure that criminal penal-
ties can be imposed under section 501 (c) only when the defendant
1-as knowingly disclosed information that, in terms of its specificity,
its sensitivity, and the effort expended to maintain its secrecy, is virtu-
ally the equivalent of classified information.4
(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 any inhibition on public criticism or debate concerning intelli-
gence activities. Because the revelation of their relationshp 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 subject of national debate and
intra-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 ensure
* In the Heine case the government had made no effort to conceal the information
about airplane production that the defendant obtained. Judge Hand noted that "no
public authorities, naval, military or other, had ordered, or indeed suggested. that the
manufacturers of airplanes-even those made for the services-should withhold any
facts which they were personally willing to give out." 151 F.2d, at 815.
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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 def-
inition 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
criminal 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
proof that the disclosure was made "in the course of a pattern of ac-
tivities intended to identify and expose covert agents and with reason
to believe that such activities would impair or impede the foreign
intelligence activities of the United States." This standard reflects
"a considered legislative judgment that a particular mode of expres-
sion" 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 agent's 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
identifying 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 iden-
tify U.S. intelligence officers and agents in countries throughout the
world and to expose their identities repeatedly, time and time again,
serves no legitimate purpose. Instead, it reflects a total disregard for
the consequences that may jeopardize the lives and safety of individ-
uals and damage the ability of the United States to safeguard the na-
tional defense and conduct an effective foreign policy.
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, it does not affect the First Amendment rights of those who dis-
close the identities of agents as an integral part of another enterprise
such as news media reporting of intelligence failures or abuses, aca-
demic studies of U.S. government policies and programs, or a private
organization's enforcement of its internal rules.
The Committee shares the objectives expressed by the Attorney Gen-
eral when he wrote to the Committee to emphasize "the great impor-
tance" of this legislation.
While we must welcome public debate about the role of
the intelligence community as well as other components of our
government, the wanton and indiscriminate disclosure of the
names and cover identities of covert agents serves no salutory
purpose whatsoever. As public officials, we have a duty, con-
sistent with our oath to uphold the Constitution, to show our
support for the men and women of the United States intelli-
gence service who perform duties on behalf of their country,
often at great personal risk and sacrifice.
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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." S
As the Attorney General advised, S. 2216 concentrates on "wanton
and indiscriminate disclosure" where such activities serve "no salutory
purpose whatsoever," and it draws a distinction between such "egre-
gious disclosures" and other modes of publication so as to maintain
and respect "the important role played by the press in exposing 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 consttiutional 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 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-
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 501(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.
s Letter from Attorney General Benjamin R. Civiletti to the Chairman of the senate
select Committee on Intelligence, June 23, 1980.
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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.'
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
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 inself
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". Basically, 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,
9 Lesser degrees of mental culpability are knowing, reckless, and negligent. See S. Rept.
96-553, pages 62-69 (Criminal Code Reform Act of 1979, Report of the Committee on
the Judiciary, United States Senate, to accompany S. 1722.)
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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
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 infor-
mation 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 pattern of activities was intended to identify 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.
S. 2216, as introduced, required that to be criminal the disclosure
made by those with no access to classified information would have to
be made "with the intent to impair or impede the foreign intelligence
activities of the United States."
The bill, as reported, replaces this intent standard with a more
objective standard which requires that the disclosure must be "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 and
impede the foreign intelligence activities of the United States." This
requirement makes it clear that the defendant must be engaged in a
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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 in-
tended to identify and expose such agents. Most laws do not require
intentional acts, but merely knowing ones. The difference between
knowing and intentional acts was explained as follows in the Senate
Judiciary Committee report on the Criminal Code Reform Act of
1980:
As the National Commission's consultant on this subject
put it, "it seems reasonable that the law should distinguish
between a man who wills that a particular act or result take
place and another who is merely 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 identify 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. Those who republish previous disclosures and
critics of U.S. intelligence would all stand beyond the reach of the
law if they did not engage in a pattern of activities intended to
identify and expose covert agents.
A journalist, writing stories about the CIA would not be engaged
in the requisite "pattern of activities," even if the stories he wrote
included the names of one or more covert agents, unless the govern-
ment proved that there was intent to identify and expose agents
and that this effort was undertaken with reason to believe it would
impair or impede foreign intelligence activities. The fact that a
journalist had written articles critical of the CIA which did not
identify covert agents could not be used as evidence that the purpose
was to identify and expose covert agents. 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 in-
tended to enforce the internal rules of the organization and not
identify and expose CIA agents.)
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An investigation by a newspaper of possible CIA connections
with the Watergate burglaries. (This would be an activity un-.
dertaken to learn about the connections with the burglaries and
not to identify and expose CIA agents.)
An investigation by a scholar or a reporter of the Phoenix
program in Vietnam. (This would be an activity intended to
investigate a controversial program and not to reveal names.)
The government, of course, has the burden of demonstrating that
the pattern of activities was with the requisite intent to identify and
expose covert agents. The government's proof could be rebutted by
demonstrating some alternative intent other than identification and
exposure of covert agents. 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 reporter could show that by printing a name of someone
commonly known as a CIA officer he could not reasonably have ex-
pected that such disclosure would impair or impede the foreign intel-
ligence activities of the United States.
Section 502(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
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 intent 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
intended 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
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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 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.
This provision of the bill does not stipulate which elements of gov-
ernment shall provide assistance or what that assistance must be. Such
procedures are exempted from any requirement for publication or
disclosure. The Committee is not addressing in this provision the rela-
tionships between intelligence agencies and private organizations or
institutions.
SECTION 504-EXTRATERRITORIAL JURISDICTION
This section is intended to remove any doubt of the Congress's 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.7
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
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 disclosures
made pursuant to a federal court order or to either of the intelligence
7 For discussion of Congress's power to authorize such prosecution, see Notes, Extra-
territorial Jurisdiction-Criminal Law 13 Harv. Int. Law Journal 347; Extraterritorial
on Reform of Federal Criminal Laws, Vol. d1 p. Working (1970) Paners of the
National Application Commission Penal R
N
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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 relationship 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
established foreign intelligence, foreign counterintelligence, or foreign
counterterrorism collection operation or program.
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,
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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.
COST ESTIMATE OF CONGRESSIONAL BUDGET OFFICE
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, D.C., August 1, 1980.
Hon. BIRCH BAYH,
Chairman, Select Committee on Intelligence,
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 Select Intelligence Committee on July 29, 1980.
S. 2216 amends the National Security Act of 1947 to prohibit the
unauthorized disclosure of information identifying certain United
States intelligence officers, agents, informants, and sources. It is ex-
pected that no additional cost to the government will be incurred as
a result of enactment of this legislation.
Sincerely,
ALICE M. RIVLIN, Director.
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.
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CHANGES IN EXISTING LAw MADE BY THE BILL
In compliance with subsection (4) of rule XXIX of the Standing
Rules of the Senate, changes in the 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 shown in roman) :
(61 Stat. 497) Chapter 348
AN ACT To promote the national security by providing for a Secretary of De-
fense; for a National Military Establishment; for a Department of the 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 na-
tional security
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assemb ed,
SHORT TITLE
That is 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. 606. 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. 601. (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 clas8i d in-
formation, learns the identity of a covert agent and intentionally dis-
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closes anry 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
intelligence 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 intended to
identify and expose covert agents and with reason to believe that such
activities would impair or impede the foreign intelligence activities of
the United States, discloses an information 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
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 relationshi to the United States of the individual the 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 the case of a person who acted
in the course of a pattern of activities intended to identify and expose
covert agents and with reason to believe that such activities would
impair or impede the foreign intelligence activities of the United
States.
(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 Select 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.
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 officer, employee, or
member is classified information and which the United States takes
affirmative measures to conceal is afforded all appropriate assistance to
ensure that the identity of such individual as such an officer, employee,
or member is effectively concealed. Such procedures shall provide that
any department or agency designated by the President for the Purposes
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of this section shall provide such assistance as may be determined by the
President to be necessary in order to establish and effectively maintain
the secrecy of the identity of such individual as such an officer, em-
ployee, or member.
(b) Procedures established by the President pursuant to subsec-
tion (a) shall be exempt from any requirement for publication or
disclosure.
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 law f ull admitted
to the United States for permanent residence (as defined in section
101(a) (20) of the Immigration and Nationality Act).
PROVIDING INFORMATION TO CONGRESS
SEe. 505. Nothing in this title shall be construed as authority to
withhold information from Congress or from a committee of either
House of Congress.
SEG. 506. For the purposes o this title:
(1) The term "classi f in f ormation" 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 permiis-
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 in-
telligence 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
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(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
agent 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 con fiden-
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 2105, respectively, of title 5,
United States Code.
(8) The term "Armed Forces" means the Army, Navy, Air
Force, Marine Corps, and Coast Guard.
(9) The term "United States", when used in a geographic sense,
means all areas under the territorial sovereignty of the United
States and the Trust Territory of the Pacific Islands.
(10) The term "pattern of activities" requires a series of acts
with a common purpose or objective.
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ADDITIONAL VIEWS OF SENATOR BIDEN
S. 2216, the Intelligence Identities Protection Act of 1980, aims at
a most desirable objective, the cessation of the irresponsible, whole-
sale disclosure of the identities of covert agents involved in the intel-
ligence activities of the United States Government. These intelligence
activities make an essential contribution to the security of the United
States and the conduct of its foreign policy. They should not be de-
terred by the actions of individuals endlessly attributing sinister
schemes to the United States, thereby disrupting intelligence activities
and endangering individuals' lives.
I join in the condemnation of these destructive actions and support
the effort of my colleagues on the Intelligence Committee to examine
what the Congress might do about them. I think that S. 2216 could
supply an effective and constitutional, statutory basis for punishing
individuals who mount the equivalent of a private, hostile intelligence
offensive detrimental to the interests of the United States. Certainly
this report shows that the Committee is sensitive to the fact that in
legislating in this area it contfronts formidable First Amendment
issues.
This report clearly indicates that the Committee neither wants nor
intends to penalize those journalists or other citizens who exercise
their constitutional right of critizing the intelligence activities of the
United States. This report, further, puts the Committee on record as
acknowledging that in the course of exercising this constitutionally
guaranteed right, of exposing governmental wrongdoing, or of con-
tributing to informed, democratic debate it might, at times, be neces-
sary to identify covert agents. Contrary to some of the criticism ad-
vanced against this bill, the Committee has carefully labored to com-
pile a record making it difficult to interpret S. 2216 as threatening to
attach criminal liability to the exercise of First Amendment rights.
The Committee wants only to criminalize those systematic, blatantly
hostile activities intended to identify covert agents in circumstances
likely to damage the interests of the United States.
Having said all this, I felt compelled to vote against this bill in
Committee. It appears that there are several constitutional questions
regarding this bill that still need to be answered, or at a minimum
better explored, before it should be approved. No matter how strongly
or unanimously the Congress might want to prohibit the sorts of dis-
closures that this bill targets, it is not yet manifest that the Constitu-
tion allows us to do so.
The first matter that we need further to examine is the constitu-
tionality of criminalizing any disclosures whatsoever, no matter how
reprehensible, if they are based on publicly available information.
Furthermore, the Congress must consider, even more closely than the
Committee has already done, the possibility that this bill is still over-
broad and, therefore, potentially unconstitutional. Although to the
current members of the Intelligence Committee the intent of this bill
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is straightforward and narrow, is it feasible that at some time in the
future less cautious officials could level a similar statute at a broad
class of individuals, many acting within the Constitution?
It is quite possible that were these issues to be, further addressed,
S. 2216 would pass careful constitutional inspection. I hope this bill
will stand up under such additional constitutional scrutiny. If so, it
will receive my support on the Senate floor. The clear need now then
is that there be further vigorous examination of these constitutional
issues before a final vote is taken.
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STATEMENT BY SENATOR JOHN H. CHAFEE
Mr. Chairman, almost five years ago, Richard S. Welch was brutally
murdered in front of his home as he returned from a Christmas party
at the American Ambassador's resident. Welch's assassination occur-
red within a month of the time that he was publically identified as CIA
station chief in the Athens Daily News. The information for the News
story came from Philip Agee's Counterspy magazine.
At the time of the Welch assassination, Counterspy magazine
claimed that they had leaked the names of 225 alleged CIA agents.
Now, five years later, Louis Wolf of the Covert Action Information
Bulletin, the successor of Counterspy, can boast that he has disclosed
the names of more than 2,000 alleged American intelligence officers
stationed around the world.
This same Louis Wolf was responsible for revealing the names of 15
alleged CIA officers in Kingston,nJamaica, this month. He also re-
vealed their addresses, telephone umbers, license plate numbers and
the colors of the cars they drove. Within 48 hours of this announcement,
the home of one of the men named, Mr. Richard Kinsman of the U.S.
Embassy, was fired upon with submarine guns and an explosive device.
The bedroom of Kinsman's 12 year old daughter was riddled with bul-
lets in the attack. A few days later, another assassination attempt was
made-this time on Jesse Jones of the U.S. Agency for International
Development, who had also been named by Wolf.*
When Louis Wolf returned from his "work" in Jamaica, the Wash-
ington Post referred to him as one of the a "few despicable Americans,"
while the New York Times said he and his ilk were "the most con-
temptible scoundrels." A caller on Eyewitness News went one step fur-
ther, and accused Wolf of treason, to which he responded, "Everything
I do is totally legal. If it wasn't you can be sure I'd be sitting in jail at
this moment."
Mr. Chairman, I think that this situation is intolerable, where
American citizens posted overseas to perform the duly authorized busi-
ness of this Government are repeatedly subject to the vicious and ir-
responsible allegations of a Philip Agee or a Louis Wolf. This "naming
names" is not a recent phenomenon. It has been going on for over five
years, and it has resulted in the assassination or near assassination of a
number of American officials. It has disrupted the lives and the work of
countless others.
As Louis Wolf so cavalierly gloats, there is no law under which he
and his henchmen can prosecuted for this treasonable business, and I
think it is time for us here today to produce and to perfect one.
The bill that we have before us is a substitute for the intelligence
identities provision of S. 2216. It is the result of numerous drafts and
revisions. It incorporates the thinking of most of the members of this
Committee as well as of other Senators and Representatives. This bill
reflects the judgments of days of hearings, and weeks of consultation.
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In my view, this bill addresses the immediate problem of placing a
price on the treasonable activity of "naming names," while, at the same
time, providing a series of defenses against prosecution for journalists
and citizens who wish to exercise their First Amendment rights. In
most respects, this bill is identical to H.R. 5615, the House version,
which passed the House Intelligence Committee by unanimous vote last
Friday, July 25, 1980.
Mr. Chairman, I will not take any additional time to explain each
of the provisions of this bill. We can do this in a few minutes when we
markup this bill. However, it is important to emphasize that a tremen-
dous amount of effiort has been expended to ensure that this legislation
resolves any constitutional concerns raised by the original S. 2216. The
language of this bill makes it clear that the defendant must be engaged
in a conscious plan to seek out undercover intelligence operatives and
to expose them in the course of a series of related activities thhat have
a common purpose. In short, he or she must be in the busines of "nam-
ing names."
I think it is time we put an end to this business. In the words of
Chairman Boland of the House Intelligence Committee, "it benefits
no one but our adversaries."
I thank the Chairman.
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