H.R. 4 THE INTELLIGENCE IDENTITIES PROTECTION ACT HEARINGS BEFORE THE SUBCOMMITTEE ON LEGISLATION OF THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE HOUSE OF REPRESENTATIVES NINETY-SEVENTH CONGRESS FIRST SESSION APRIL 7 AND 8 1981

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200040004-8
• Release Decision: RIFPUB
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• Document Page Count: 164
• Document Creation Date: December 21, 2016
• Document Release Date: October 2, 2008
• Sequence Number: 4
• Publication Date: April 8, 1981
• Content Type: OPEN SOURCE

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H.R. 4, THE INTELLIGENCE IDENTITIES
PROTECTION ACT
HEARINGS
SUBCOMMITTEE ON LEGISLATION
PERMANENT SELECT COMMITTEE ON
INTELLIGENCE
HOUSE OF REPRESENTATIVES
NINETY-SEVENTH CONGRESS
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1981
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PERMANENT SELECT COMMITTEE ON INTELLIGENCE
(Established by H. Res. 658, 95th Congress, 1st Session)
EDWARD P. BOLAND, Massachusetts, Chairman
CLEMENT J. ZABLOCKI, Wisconsin J. KENNETH ROBINSON, Virginia
CHARLES ROSE, North Carolina JOHN M. ASHBROOK, Ohio
ROMANO L. MAZZOLI, Kentucky ROBERT McCLORY, Illinois
NORMAN Y. MINETA, California G. WILLIAM WHITEHURST, Virginia
WYCHE FOWLER, JR., Georgia C.W. BILL YOUNG, Florida
LEE H. HAMILTON, Indiana
ALBERT GORE, JR., Tennessee
BOB STUMP, Arizona
THOMAS K. LATIMER, Staff Director
MICHAEL J. O'NEIL, Chief Counsel
PATRICK G. LONG, Associate Counsel
JEANNE M. MCNALLY, Clerk
SUBCOMMITTEE ON LEGISLATION
ROMANO L. MAZZOLI, Kentucky, Chairman
WYCHE FOWLER, JR., Georgia ROBERT McCLORY, Illinois
LEE H. HAMILTON, Indiana JOHN M. ASHBROOK, Ohio
EDWARD P. BOLAND, Massachusetts
BERNARD RAIMO, Jr., Counsel
IRA H. GOLDMAN, Counsel
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CONTENTS
Tuesday, April 7,1981------------------------------------------------
1
Wednesday. April 8,1981 ----------------------------------------------
44
LIST OF WITNESSES
TUESDAY, APRIL. 7, 1981
Testimony of Hon. Jim Wright, a Representative in Congress from the
12th District of the State of Texas, and majority leader, U.S. House of
Representatives _
4
Testimony of Hon. William Casey, Director of Central Intelligence, ac-
companied by John N. McMahon, Deputy Director for Operations, Cen-
tral Intelligence Agency ; and Daniel B. Silver, General Counsel, Central
Intelligence Agency------------------------------------------------
15
Testimony of Richard K. Willard, Counsel to the Attorney General for
Intelligence Policy --------------------------------------------------
30
WEDNESDAY, APau.. 8, 1981
Testimony of John S. Warner, Esq., legal adviser to the Association of
Former Intelligence Officers and former General Counsel, Central In-
telligence Agency, accompanied by John K. Greaney, executive director,
Association of Former Intelligence Officers ---------------------------
44
Testimony of Kenneth C. Bass III, former Counsel to the Attorney General
for Intelligence Policy -----------------------------------------------
56
Testimony of Jerry J. Berman, Esq. and Morton Halperin, American Civil
Liberties Union----------------------------------------------------
72
Testimony of Robert D. G. Lewis, chairman, National Freedom of Infor-
mation Committee, Society of Professional Journalists, Sigma Delta Chi,
accompanied by Bruce Sanford, counsel to the Society of Professional
Journalists ---------------------------------------------------?----
93
Testimony of Floyd Abrams, Esq., Cahill, Gordon & Reindel, New York,
N.Y.----------------------------------------------------------?----
103
Testimony of Philip B. Heymann, Esq., professor of law, Harvard Univers-
ity Law School, former Assistant Attorney General, Criminal Division,
Department of Justice -----------------------------------------------
108
Testimony of Antonin Scalia, professor of law, Stanford Law School,
former Assistant Attorney General, Office of Legal Counsel, Department
of Justice ----------------------------------------------------------
112
APPENDIXES
Appendix A. Statement of Hon. Charles E. Bennett before the House Per-
manent Select Committee on Intelligence -----------------------------
131
Appendix B. Statement of the Association of American Publishers concern-
ing the Intelligence Identities Protection Act with covering letter -------
133
Appendix C. Statement for the Record from Kathleen Larey Lewton, pres-
ident, Women in Communications, Inc., and covering letter ------------
135
Appendix D. Letter from Hon. Dean Rusk, former Secretary of State -------
136
Appendix E. H.R. 4, "Intelligence Identities Protection Act"---------- ----
138
Appendix F. S. 391, "Intelligence Identities Protection Act of 1981" -------
146
Appendix G. H.R. 133, "Intelligence Officer Identity Protection Act of
----------------------------------------------------
1981" -------- -
155
Appendix H. Proposed "Kennedy Compromise"---------------------.----
160
Appendix I. Letter of Philip B. Heymann_____________________________
161
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H.R. 4, THE INTELLIGENCE IDENTITIES PROTECTION
ACT
TUESDAY, APRIL 7, 1981
U.S. HousE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
SuBCOMMITrEE ON LEGISLATION,
Washington, D.C.
The subcommittee met, pursuant to notice, at 1:08 p.m., in room
H-405, the Capitol, Hon. Romano Mazzoli (chairman of the subcom-
mittee) presiding.
Present: Representatives Mazzoli (presiding), Fowler, Hamilton,
Boland (chairman of the committee), Stump, Rose, McClory, Ash-
brook, Robinson, and Young.
Also present: Thomas H. Latimer, staff director; Michael J. O'Neil,
chief counsel; Jeannie McNally, clerk of the committee; and Bernard
Raimo, Jr. and Ira H. Goldman, counsel; Herbert Romerstein, profes-
sional staff member; and Louise Dreuth, secretary.
Mr. MAzzol 1. The subcommittee will come to order. I have a short
opening statement, then I would yield to the gentleman from Illinois
and the gentleman from Massachusetts for statements.
Today the Subcommittee on Legislation begins the second set of
hearings on the Intelligence Agents Identities legislation. An earlier
set of hearings was held, as you know, in January of 1980.
The focus of our discussion will be H.R. 4, a bill which is identical
to that which was reported favorably by both this committee and the
House Committee on the Judiciary in the 96th Congress. H.R. 4
addresses the pernicious practice of deliberately and publicly disclosing
the identities of undercover U.S. intelligence officers and their agents.
When we began the earlier hearings I made the following statement :
Such disclosures have been on the increase in recent years and are coming at a
time when an effective intelligence collection capability is necessary to the safety,
to the security and the wellbeing of our nation as never before in its history. It
goes without saying that divulging the identity of intelligence agents serves to
destroy this capability. Not only are lives threatened, but legitimate intelligence
collection activities are rendered useless. The careers of dedicated intelligence
officers are ruined, service morale is lowered, foreign policy is disrupted, and the
taxpayers' money is wasted.
Since that statement was made, the "Naming Names" section of the
Covert Action Information Bulletin and the Counterspy magazine
have published scores of names of alleged CIA officers.
Since that first set of hearings was held, and as a result of data de-
veloped at the hearings, changes were made in the wording of this bill,
changes intended to meet certain constitutional objections which had
been raised in the earlier set of hearings.
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H.R. 4 now requires that before a person who did not have author-
ized access to the information disclosed can be convicted, the Gov-
ernment has to prove not only that the disclosure was made with an
intent to impair or impede the foreign intelligence activities of the
United States, but also that the disclosure was part of an effort to
impair and impede the intelligence activities.
The purpose of these hearings, which is, again, the second set of
such hearings, is to hear from proponents and opponents to H.R. 4,
to supplement or complement or explain the original record in order
that we may have for ourselves and for our colleagues who will vote
on H.R. 4 a total and complete, balanced, up-to-date record.
The support of the majority leader who is here with us today to tes-
tify on the bill, and of the minority leader of the House, Bob Michel,
of many other House leaders, is greatly encouraging to me and to
those of us who have worked to protect America's intelligence field
agents so they can do the essential task of protecting the Nation's se-
curity. Quick and positive action on this measure is warranted and
necessary and vital. The support of these influential House leaders
will help profoundly in moving H.R. 4 onto the statute books of this
land.
And with that, I will yield to the gentleman from Illinois for any
opening statements he may have.
Mr. McCLORy. I thank the Chairman for yielding. As a long-time
advocate of legislation protecting the identities of our foreign intelli-
gence agents, I commend you for setting H.R. 4 as the top priority
item of the Subcommittee on Legislation, and for scheduling the first
hearings on this legislation in the 97th Congress. Your efforts as act-
ing chairman in the last Congress and now as chairman are clear in-
dicators of your interest in protecting both the civil liberties and the
national security interests of the American people.
Mr. Chairman, it is clearly not the intention of the proponents of
H.R. 4 to muzzle those who oppose our intelligence activities. We are
not seeking to stifle dissent, and this legislation would not produce
such a result. Indeed, after enactment of H.R. 4, anyone could make
any remark, calm or inflammatory, true or untrue, about our intel-
ligence agencies. No matter how disruptive its effect would be, such a
statement would not be prohibited, though it might well be unwise.
Rather, one narrowly defined type of information, that which is not
necessary to an informed public, is all that would be prohibited from
disclosure. This prohibition would not cause damage to the first
amendment for its proscriptions are not absolute. I have heard no com-
pellin argument for the proposition that the first amendment would
proscribe enactment by Congress of a law criminalizing the disclosure
of the identities of U.S. intelligence agents operating under cover.
Mr. Chairman, we simply cannot ask our intelligence officers and
those who are willing to clandestinely aid them to put their lives at
risk to provide for the security of our Nation without offering them
reasonable protection. Improved cover will help, to be sure, and the
administration is seeking to accomplish this. This legislation will help
as well, and in the absence of some compelling reasons which may be
expressed in these hearings, I will be eager to see this measure enacted.
Thank you.
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Mr. MAzzoI I. I thank the gentleman.
The gentleman from Massachusetts, the chairman of our committee?
Mr. BOLAND. Thank you, Mr. Chairman.
I would just like to underscore something that you have already
said. As we did during the previous Congress, the committee today
seeks the advice and suggestions of the witnesses before it, and our
hearings today and tomorrow will be working sessions in which the
key issue before us, the constitutionality of section 501(c), will be
covered as thoroughly as possible.
We hear today from the House leadership and from the Govern-
ment. Tomorrow morning we will hear from certain expert witnesses
from among the many interested public groups. In the afternoon we
hope to hear from a panel of distinguished legal and constitutional
scholars. Our aim throughout will be to test and re-examine the provi-
sions of H.R. 4.
This committee clearly wants to provide effective protection for our
undercover intelligence operatives. We want to provide this protec-
tion in a constitutionally permissible way. So our sessions will seek to
explore alternatives, to question assumptions, to play the devil's advo-
cate. We will do these things, however, because our resolve is to report
out a good bill, and to do so in the very near future.
Mr. MAZZOLI. Mr. Chairman, I thank you very much.
Would any of my colleagues have very brief statements they wish
to make?
The gentleman from Virginia?
Mr. ROBINSON. I thank the chairman for yielding.
I am in complete accord with the comments that have been made
with respect to this legislation. It was my pleasure and privilege to
support it in the last Congress, and it is my intention to do so again.
I am very pleased that your committee, Mr. Chairman, has seen fit
to take it up as early in the session as this date.
Mr. MAZZOLI. Well, we certainly thank you.
The gentleman from Florida?
Mr. YOUNG. Mr. Chairman, thank you very much.
I would like to just add one other thought to those thoughts that
have already been made. This legislation before us now does provide
the same type of protection for persons working with and associated
with the foreign intelligence activities of the Federal Bureau of
Investigation as it does for the CIA. The original bill did not. I think
it was lacking. I am happy to see that it is included in the bill that
we consider today.
Mr. MAZZOLI. Thank you.
The gentleman from Georgia.
Mr. FOWLER. Thank you, Mr. Chairman.
I just want to say that this is not an easy area in which to legislate,
and I want to commend you and the chairman of the full committee
on the work that has already been done. We are trying to balance the
responsibilities and protections of a free society, freedom of speech,
freedom of expression in that society, with the responsibility to
punish those who would damage our country by revealing the names
of undercover agents who are serving our country.
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As I say, it is difficult, but I think it can be done, and I think this
legislation and these hearings will show that those equities can be bal-
anced and we can provide the protection that we so need to our people
wherever they serve.
Mr. MAZZOLI. I thank the gentleman. He makes a very important
statement.
The gentleman from Indiana.
Mr. HAMILTON. No comment, Mr. Chairman.
Mr. MAZZOLI. The gentleman from Arizona.
Mr. STUMP. No, thank you.
Mr. MAZZOLI. Thank you very much.
And with this we will have our first witness, and invite the gentle-
man from Texas, the majority leader of the House of Representatives,
to step forward.
The gentleman, of course, needs no introduction. Jim Wright is our
majority leader, and for today's purposes, a long-time supporter and
an early sponsor of a measure to protect the identities of our intelli-
gence agents who are posted undercover.
As an ex officio member of our committee, I would suggest to the
audience the gentleman from Texas has devoted a great deal of what is
very precious time to him in the service of this committee, which we
very much appreciate, and we look forward to working with him after
today's meeting, and look forward to hearing from him today.
Mr. Majority Leader, you may proceed.
STATEMENT OF HON. JIM WRIGHT, A REPRESENTATIVE IN
CONGRESS FROM THE 12TH DISTRICT OF THE STATE OF
TEXAS, AND MAJORITY LEADER, U.S. HOUSE OF REPRE-
SENTATIVES
Mr. WRIGHT. Mr. Chairman, thank you very much.
I will try to be brief because I know you have other witnesses, and
some who can testify with more clarity and more knowledge than I
possess.
I think one of the greatest unfortunate failures of the last Congress
was that we allowed the hourglass of time to expire upon the session
before we took action upon a bill that had been approved by this com-
mittee and approved in identical form by the Committee on the
Judiciary. I hope that won't happen this year. Insofar as it lies within
my power as the majority leader to help assure that action is taken, I
would like to commit myself to that premise.
I don't think there are many other things that cry out as urgently
as this does for action by Congress. It is an interesting commentary
upon our times that in the past 2 years more ambassadors have lost
their lives than generals. It has reached the point where to serve the
United States abroad in a civilian capacity has become a dangerous
thing in itself.
It also has reached the point where, because we have tolerated
abusive disclosure of the identities of our undercover agents by rogue
agents who formerly worked for and supped at the trough of the
United States, we have driven away many people who otherwise would
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be supportive of our efforts. We have made infinitely more difficult the
necessary task of an intelligence gathering apparatus to elicit the co-
operation of foreign nationals. Obviously if we aren't going to protect
our own, then we can't expect foreign nationals to believe we will
offer them any measure of protection when they work with us.
And if we suffer them to see the cover which has been so assiduously
provided by a CIA operation blown publicly by a U.S. citizen who then
goes scot-free without any attempt being made by the Government of
the United States to stop that kind of action, then those people abroad
certainly are not going to be prone to help us. They are going to have
contempt for us, it would seem to me.
Several instances already have been cited by this committee. On the
4th of July last the home of a senior U.S. Embassy official in Jamaica
was machinegunned and bombed. Luckily, Richard Kinsman, the First
Secretary of the Embassy at Kingston, was not hurt. But that was not
the fault of the Covert Action Information Bulletin and its publish-
ers who, 2 days prior to that event, had declared that Mr. Kinsman was
a CIA agent and had given out his home address, the description of
his automobile, his telephone number, his automobile license tag and so
forth.
And that isn't by any means the first time anything of that kind has
occurred, nor will it be the last.
In 1975, of course, Richard Welch in Greece was slain after that
same group had identified him as a CIA agent. That was 1975, and here
we are almost 6 years later.
And so it seems to me that in the interest of our own Nation, in a
dangerous world where the difficult and delicate task of gathering in-
formation can be absolutely vital to our life as a nation, we absolutely
have the responsibility to provide this kind of protection to those who
offer their lives in this hazardous profession in defense of this country.
We owe it to them and we owe it to ourselves and we owe it to the Na-
tion to do so.
I think care has been taken in the drafting of this legislation to see
to it that it doesn't violate anybody's constitutional rights. I can't really
understand how anyone could contend that it does. Manifestly, there
is no constitutional right to publish information about troop move-
ments during a time of war. In a world as complex as ours has grown
the necessity for the United States to have reliable, up-to-date informa-
tion about what is going on in the world might be likened to the need
for information in an earlier age, when time allowed slow, manipula-
tive decisions to be made like a game of chess, only now the tempo is
that of a game of table tennis, and it is more vital than ever before
that this Nation be able to anticipate events abroad so as to influence
those events, or at least to protect our own people from being adversely
affected by them.
We were taken by surprise in what occurred a couple of years ago in
Iran. Nobody in the United States had any real expectation that some-
thing like that might happen. We have been taken by surprise by some
of the things that have occurred as close to home as Central America,
for example. We desperately need, if we are to compete in this world
of ideas and in this world of intrigue with information and knowledge,
we desperately need a first-rate intelligence-gathering apparatus.
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Now, there is nothing in this bill whatever which would violate the
constitutional rights of any journalist or any other individual, nothing
in here which would prevent some columnist from writing a story
which says that the United States has plans to invade Ethiopia or San
Salvador or any other place on Earth. However ridiculous that may be,
the right to be wrong is equally protected with the right to be right,
where free speech is concerned. There is nothing in this bill that would
have kept the New York Times from revealing the Pentagon papers.
There isn't anything in this bill that would keep a journalist from criti-
cizing the plans or the policies of the CIA or any other agencies that
we possess. There isn't anything in this bill that would prevent someone
from criticizing an action of the CIA that might be contemplated, if
one were contemplated, to destabilize a government abroad. There isn't
anything in this bill that would give sanction to any such action as that.
But there is something in the bill that would keep people who publish
this vicious magazine, to which I have earlier referred, from publishing
a section such as the one they call naming names in which they purport
to list the names of all the CIA officers that they can discover, and it
seems to me that in balancing this careful need, and the twin necessities
that were mentioned by Mr. Fowler, my friend from Georgia, this bill
strikes the right balance. It protects all of the legitimate constitutional
rights of any American citizen, and it begins a means of restoring our
capacity as a Nation to protect ourselves by gathering information
abroad.
That is the sum of my statement. I sense that most of the members of
the committee favor the bill. I would urge you to act expeditiously in
memory of what happened in the last Congress when people found
reason and excuses to drag their feet long enough that we didn't get a
bill passed, though manifestly a majority of the members of this com-
mittee and of the Committee on the Judiciary wanted one passed.
Mr. MAzzoLI. Mr. Majority Leader, let me thank you very much for
the eloquent statement, one that I think makes as clearly as possible the
dramatic need for this legislation.
Let me assure you that for my part-and I am sure I speak for my
colleagues-that there will be no temporizing on this committee with
regard to moving this bill or some version of it. And of course, you
have already-you said early in your statement it would be your wish
and that of your colleague Mr. Michel to do whatever is possible from
the leadership standpoint to be sure that it moves expeditiously when
it gets out of here. So you can be assured of that.
Mr. WRIGHT. That is correct, and as you have just indicated, and I
want to stress, there isn't anything partisan about this bill at all. Bob
Michel is every bit as dedicated to it as I am, and I want to make that
point clear.
Mr. MAZZOLI. Mr. Majority Leader, I would just ask you one very
brief question because you have business you must attend to.
It is your position, and it is mine, and I have earlier stated, that you
can criticize, hold up to scorn and ridicule, challenge, investigate with-
out naming names. Is that basically your feeling?
Mr. WRIGHT. Yes, that I think is a fair summation of it. You can
criticize a policy of the Government, you can criticize a policy of the
CIA, you can do any of those things that you otherwise could do
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except to identify those secret agents of the U.S. Government in pub-
lished form with the purpose of disrupting the intelligence gathering
capacity of the United States.
Mr. MAzzou. It would seem to me that the challenge, the criticism
would be just as pointed and just as effective without naming the
names, but stating the circumstances, and I would agree with you that
we can do that within the parameters of this bill.
The gentleman from Illinois is recognized for 5 minutes.
Mr. MCCLORY. Thank you, Mr. Chairman.
I also want to commend you, Mr. Wright. I think it is highly sig-
nificant that the majority leader and the minority leader of the House
of Representatives are stepping forward on this legislation, recog-
nizing the importance of this measure to our intelligence agencies and
to the security of our Nation.
We seem to have no problem with those parts of the bill which relate
to the disclosure by employees of the CIA who gain information
confidentially in connection with their employment. We have no fault
to find with that part of the bill which relates to some persons who
may not have access to the information because of their position but
nevertheless gain access to the identities of agents operating under-
cover as a result of their employment.
The problem arises when we get to that third part where it is a
third party, not employed by the CIA or other intelligence agency,
but who nevertheless comes into possession of knowledge about an
agent operating undercover and then discloses that with intent to
impede our foreign intelligence activities.
Now, I am wondering whether you feel that that part of the bill
which would, of course, affect the media as well as other third persons,
should be qualified if the information is secured from a source over-
seas, for instance, or from a public source by just getting the informa-
tion in some other way than surreptitiously, but nevertheless disclosed
with intent to impede our national security ? If those elements are
present, do you not feel that the strictures of the law and the penal-
ties of the law should apply, notwithstanding that a third party,
including the media, are involved ?
Mr. WRIGHT. Mr. McClory, I definitely believe that anyone who
makes such a disclosure with such an intent should come under the
strictures of the law.
Now, you know as well as I, as a distinguished member of the Judi-
ciary Committee; you know probably far better than I, that this creates
a most difficult task for anyone who would seek to prosecute. If you
have to prove intent, it becomes extremely difficult. The burden of proof
lies upon anyone who would bring the charge against an individual;
to prove the intent to damage the foreign operations of the United
States, its capacity to gather intelligence, or to harm the United States
intentionally, purposely, is a difficult thing to do. Those of us who are
in public life might draw a general parallel from the Supreme Court
ruling of some few years ago which established a difficult test for any-
one in public life to prove libel, for example. You have to prove malice,
you have to prove that not only that what was said about you was
untrue, but that it was published with the knowledge that it was un-
true, and with a deliberate intent to malign. Now, that has become a
quite difficult test, and relatively few have achieved a prosecution.
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Mr. MCCLORY. You still feel that the element of intent is important
to retain in the bill. That is the language which you and I use.
Mr. WRIGHT. I would retain that for the third party, yes, I would.
Mr. MCCLORY. I might say that the Senate version refers to "reason
to believe" which may be less clear and could raise grey-mail problems.
Mr. WRIGHT. Mr. McClory, in the application of criminal penalties,
I believe the term "reason to believe" is so broad and loose that it ought
to be rejected for a more specific finding.
Mr. MCCLORY. Thank you.
Thank you, Mr. Chairman.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Georgia is recognized for 5 minutes.
Mr. FowLER. I have no questions except to thank the majority leader
for his leadership and his participation.
Mr. MAZZOLI. Thank you.
The gentleman from Ohio.
Mr. AsHBROOK. Thank you, Mr. Chairman.
I would say to our majority leader. I am very pleased with your
testimony. There is one area in this whole subject that I spent some
time on last year, and I see again is missing this year. That is the area
of false identification, where somebody does exactly the same thing
except the person he identified is not a member of the CIA. It doesn't
seem we ought to leave those people out of the coverage.
We have, oh, I think three or four situations. The one in Jamaica
was probably the worst, where two American officials were identified
falsely as members of the CIA, and shortly after that they were at-
tacked. You know, you always have the problem of linking the attacks
to the identification, so you would have the same standards.
Do you as a matter of personal preference, without getting into all
the ramifications, have a concern and would you like to see the legisla-
tion cover areas like that? Have you thought it through and do you
think it should not be covered?
Mr. WRIGHT. Mr. Ashbrook, I certainly would have no objection
to making the legislation applicable to the false disclosure or the
erroneous disclosure of an individual, just as it would apply to the
accurate disclosure. If, for example, someone were to publish a docu-
ment saying that John Ashbrook was a member of the CIA and
engaged in some kind of operation in which you were not engaged,
and somebody as a result of that undertook an attempt upon your
life, it would be iust as hurtful to you as though you were a member
of the CIA, and I think just as culpable.
I would have no objection personally to seeing the legislation
broadened to include that.
As a matter of fact, I had not focused upon the fact that it didn't
include such a situation.
Mr. AsHBROOK. I noticed Mr. Carlucci last year, in testifying on
the bill on this subject, indicated, and I quote:
The activities that these bills attempt to deal with are a systematic, purpose-
ful job of uncovering identities and are conducted with a clear understanding
evidenced by an expressed intent that their effect will be to impair or impede
legitimate U.S. Intelligence activities.
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As I raised at that time, the same statement could apply, whether
the person were correctly identified as a CIA agent, or whether he
was falsely identified. In some cases, maybe the man who is falsely
identified deserves a degree of protection.
Mr. WRIGHT. Of course he does.
Mr. ASHBROOK. Thank you, Mr. Mazzoli.
Mr. MAZZOLI. I thank the gentleman from Ohio.
The gentleman from Indiana.
Mr. HAMILTON. No questions.
Mr. MAZZOLI. The gentleman from Virginia.
Mr. ROBINSON. No questions, Mr. Chairman.
Mr. MAzzoLI. The gentleman from Massachusetts?
Mr. BOLAND. It would seem to me, Mr. Majority Leader, that there
is a danger in Mr. Ashbrook's approach of applying the bill's cover-
age to one who has been falsely accused. We have had enough diffi-
culty with the bill as it is, and I think this broadens the approach
and I think perhaps makes it much more difficult for passage of it.
Someone who has been falsely accused has other remedies. But
when you criminalize someone for telling a lie, I think that we are
broadening this bill beyond the scope that this committee desires.
What would you say to that?
Mr. WRIGHT. I don't want to get in the middle of that big fight.
[General laughter.]
Mr. WRIGHT. I don't know exactly what remedies presently exist
for somebody falsely identified. I would presume that some remedies
may exist. I would have no personal objection to broadening the bill,
but if the chairman of the committee in his judgment feels that it
would open up a new Pandora's box of problems for enactment of
the legislation, then I would be content to get what we could get. I
think we desperately need to get something, and get it expeditiously.
Mr. BOLAND. Well, I am delighted to get that reaction because
John Ashbrook is a very persuasive individual. I want to make sure
that we can get by without having some of the problems that might
entail in the Judiciary Committee and on the floor, too.
Thank you very much.
Mr. MAzzoLI. The gentleman's time is up.
The gentleman from Florida.
Mr. YOUNG. Thank you, Mr. Chairman.
I would like to get right in the middle of this argument. Mr. Ash -
brook is right and Chairman Boland is also right, but it is not an
isolated case. The Jamaican incident that Mr. Ashbrook mentioned
did happen. We also know, on January 3 of this year, Michael Ham-
mer and Mark Perleman, AFL-CIO representatives, were murdered
in San Salvador, and they, too, had been falsely identified as CIA rep-
resentatives by Counterspy, which is another one of those types of
magazines.
So I think it is something, Mr. Chairman, that we ought to approach,
certainly with great caution. It is a real problem and evidently
growing.
Mr. MAZZOLI. I thank the gentleman from Florida, and certainly
all suggestions that we have from the panel and from the witnesses
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for the next 2 days will be considered by the committee when it re-
ports out the bill.
The gentleman from North Carolina.
Mr. ROSE. Thank you, Mr. Chairman.
Mr. Leader, I think you have done an excellent job in bringing this
to our attention. I have only one caveat, not for you but for the intelli-
gence community, and as much as this bill will do to solve the prob-
lem of agent disclosure, it will not do it all. The Agency, in my opinion,
has a tremendous responsibility in providing adequate cover for its
agents, and while your bill will probably go much further than any
other single act that has happened lately to provide the kind of pro-
tection that agents need, we shouldn't swing the total focus on the
Congress as if it were our total responsibility. The Agency has an
overpowering responsibility to provide adequate cover to its agents so
their names aren't disclosed in the first place.
And I thank you for your consideration.
Mr. WRIGHT. Mr. Rose, I would respond only by saying that it is
irksome and a little bit embarrassing to me that these names can be
disclosed.
Now, in saying that I suppose I am drawing an assumption which
may be unwarranted. I guess subconsciously I have been drawing the
assumption that the publishers of these names were correct in the
identification they made, but as a result of some of the things that
have beexi pointed out to me by Mr. Young and Mr. Ashbrook, it may
well be that most of the names whom they identify as CIA agents
really in truth are not CIA agents but rather civil servants of another
type serving the U.S. Government, in which case that manfestly is
bad, too.
But if you put these people out of business, then they are going to
be out of business whether they are right or whether they are wrong.
I agree with you that the CiA, if it is to be a credible agency, does
have responsibility to firm up its own protections. But I am not sure
that we should jump so quickly to the conclusion that it has been
faulty because it is altogether possible that the man Agee and those
who work with him may indeed be as inaccurate as some of the other
things that are published.
Mr. MAZZOLI. I thank the gentleman from North Carolina and the
gentleman from Texas.
We did have, as the gentleman knows, some briefings on the question
of cover, and it is, a very important topic that is woven throughout
this whole question.
Mr. Majority Leader, we thank you very much for taking the time
to join us. We appreciate your testimony, and we will be working with
you in the months ahead.
Mr. WRIGHT. Thank you very much.
Mr. MAZZOLI. Our next witness, I might say to our colleagues on
the committee and the audience, was to have been Congressman Bob
Michel, the minority leader of the House. Congressman Michel was
called to the White House this afternoon, but he asked that I make
his statement a part of the record, which, without objection, it will be
so ordered.
[The prepared statement of Representative Michel follows:]
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STATEMENT OF HON. ROBERT MICHEL, MINOarrY LEADER, tj.S. HOUSE OF
REPRESENTATIVES
Mr. Chairman, I thank you for granting me the opportunity to testify before
the Subcommittee on H.R. 4, The Intelligence Identities Protection Act.
I am certainly pleased that these hearings have been scheduled at the start of
the 97th Congress, and I want to join with the distinguished Majority Leader In
urging you to move most deliberately so as to bring the bill to the floor for early
consideration-which I am sure will find strong bipartisan support.
Mr. Chairman, when I heard of the murder of our CIA station chief In Athens
on December 13, 1975, it did much to dampen the spirits of the Christmas season.
I was saddened to learn of the violent ending of a human life. I was saddened to
learn that an American, serving in the highest tradition of public service, had
been gunned down at his home by a band of terrorists. But the tragedy was
double-edged. The death of Richard Welch resulted from a public disclosure of
his relationship with the CIA, made not by our adversaries, but by misguided,
Irresponsible and callous Americans who for some reason assumed they could
sit in judgment over the very life of another human being. The publishers of
Counterspy, who exposed Richard Welch to mortal danger, brought disgrace upon
the journalistic profession and upon all Americans. They also made necessary
some form of action by the Congress.
It was not for me to sit in judgment over them or their motivation back then,
but it was, I thought, a matter of urgency for the Congress to denounce what
they had done and take whatever steps we could to protect against a reoccurrence.
That Is why in January of 1976 I introduced a bill to criminalize the disclosure
of the identities of our intellieencP agents. It was a first attempt, to be sure, and
I am pleased by the work this Committee has performed to produce a bill as
comprehensive. oxperii'v (?r;-!i-,i ;.wl % -!? d as H.R. 4. The need for this
legislation has not diminished since 1975, and it Is still Imperative that we act
expeditiously.
The hearings which you are holding today and tomorrow, when coupled with
the extensive record made in both Houses last year, should make abundantly
clear the need for this legislation. We must provide a way to protect our intelli-
gence officers and agents from having their identities willfully disclosed with
reckless candor. For, It is truly only to the extent that their identities are pro-
tected that, indeed, their lives are protected.
Thank you.
Mr. MAZZOLL And I would like just to make his statement, in the
form of one paragraph, particularly a part of the record, and I would
quote the minority leader's message in this fashion :
The hearings which you are holding today and tomorrow, when coupled with
the extensive record made In both Houses last year, should make abundantly
clear the need for this legislation. We must provide a way to protect our intelli-
gence officers and agents from having their identities willfully disclosed with
reckless candor. For, it is truly only to the extent that their Identities are pro-
tected that indeed their lives are protected.
So we appreciate the support of the minority leader, and his state-
ment to us today and his activities in the past would indicate that he
intends to work hard to get a bill passed.
I would like to now call forward the gentleman who is the Director
of the Central Intelligence Agency and his colleagues.
Mr. Casey is a familiar face in government and has held important
posts under every President since Franklin Delano Roosevelt. Mr.
Casey now serves as a member of President Reagan's Cabinet, but most
importantly for our purposes, also as Director of Central Intelligence.
He is accompanied this afternoon by Mr. John McMahon, the
Deputy Director of Operations and Mr. Daniel Silver, who is the Gen-
eral Counsel for the Central Intelligence Agency.
Today, I might say to our colleagues, marks the first time that Mr.
Casey's schedule has permitted him to join us in this room before our
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committee. Of course, we very frequently have had the pleasure of
visiting with Mr. McMahon and Mr. Silver.
I would like to recognize the gentleman from Massachusetts for a
statement.
Mr. BOLAND. I would like to welcome you, Mr. Casey, to what I trust
will be the first of many appearances before this committee.
May I also digress from the business at hand for just a moment to
pay tribute to the two gentlemen who accompany you. John McMahon
has served his country as an intelligence officer for 30 years, most
recently as Deputy Director of Central Intelligence for the intelligence
community staff, and for the last 3 years as Deputy Director of Oper-
ations, a highly sensitive position. He has impressed me, and I am sure
he has impressed all the members of this committee, as an outstanding
and an upstanding public official. I am unfortunately unable to say
much more publicly about his career, but I will say that there is no wit-
ness who has appeared before this committee who has been received as
warmly or whose integrity has been as highly regarded as John
McMahon.
The best news of all is that he will remain at the CIA where he will
soon head the National Foreign Assessment Center, the Agency's
analytic arm, and which we know, as Mr. Casey does, the quality of
analysis will receive a shot in the arm with his particular assignment.
The job of improving analysis is a top priority for Mr. Casey, as it
has been with this committee, and I believe that Mr. McMahon's pres-
ence at NFAC will be felt, and I applaud his selection.
Mr. MOMAIION. Thank you.
Mr. BOLAND. Mr. Chairman, today may well mark the last official
appearance of Dan Silver as General Counsel at CIA. He leaves CIA
at the end of this month to return to private practice after nearly 4
years as General Counsel at the National Security Agency and the
Central Intelligence Agency. He has been a frequent witness before
the committee on a number of difficult legal issues. I have always been
impressed by his intelligence, his tenacity, and the consistency with
which he has advanced the interests of his client. He is an excellent
advocate. He also tells some of the worst jokes I have ever heard.
[General laughter.]
Dan, I am sure the Agency will miss you. The committee, however,
will continue to request your services from time to time. As you your-
self might say, "old General Counsels don't die, they merely become
public witnesses."
Mr. SILVER. Thank you, very much.
Mr. McCLORY. Mr. Chairman, would you yield to me?
I just want to join in the remarks of welcome and the tributes that
have been paid by our distinguished Chairman of the Full Committee,
the gentleman from Massachusetts, Mr. Boland, and also to extend a
special warm welcome to the new Director of Central Intelligence,
Mr. Casey. I am aware already of the very strong, supportive posi-
tion which you are taking to continue the strengthening of our intel-
ligence agencies, and I look forward to working closely with you in
behalf of legislative programs and other activities which can assist
you in seeking the goals that I know you have for the great Central
Intelligence Agency.
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Thank you, Mr. Chairman.
Mr. MAZZOLI. Thank you, very much.
Mr. Casey, you may proceed. Your statement is made a part of the
record without objection, and we welcome you.
[The prepared statement of Mr. Casey follows:]
STATEMENT OF WILLIAM J. CASEY, DIRECTOR of CENTRAL INTELLIGENCE
Mr. Chairman, I am pleased to appear before the Permanent Select Committee
on Intelligence today to testify in favor of enactment of H.R. 4, the "Intelligence
Identities Protection Act of 1981."
The Intelligence Community's support for legislation to provide criminal
penalties for the unauthorized disclosure of information identifying certain in-
dividuals engaged or assisting in the foreign intelligence activities of the United
States is well known. I want to emphasize that this Administration believes that
passage of the "Intelligence Identities Protection Act" is essential to the mainte-
nance of a strong and effective intelligence apparatus. Enactment of this legis-
lation is an important component of the Administration's effort to implement
President Reagan's determination to enhance the Nation's intelligence capa-
bilities.
As you pointed out in your recent letter to me, "the unfortunate events that
gave rise to the need for [this] legislation are continuing apace." Mr. Chairman,
there exists a coterie of Americans who have openly proclaimed themselves
to be devoted to the destruction of the Nation's foreign intelligence agencies.
This group has engaged in actions avowedly aimed at undermining the Nation's-
intelligence capabilities through the identification and exposure of un&Iercover
intelligence officers. The perpetrators of these disclosures understand t!orrectly
that secrecy is the life blood of an intelligence organization and that disclosures
of the identities of individuals whose intelligence affiliation is deliberately con-
cealed can disrupt, discredit and-they hope-ultimately destroy an agency
such as the CIA. Some of the persons engaged in this activity have actually
traveled to foreign countries with the aim of stirring up local antagonism to
U.S. officials through thinly veiled incitements to violence.
The tragic results of unauthorized disclosures of intelligence identities are
well known. Five years ago. Richard Welch was murdered in Athens, Greece.
Last July, only luck intervened to prevent the death of the young daughter
of a U.S. Embassy officer in Jamaica whose home was attacked only days after
one of the editors of a publication called Covert Action Information Bulletin
appeared in Jamaica, and at a highly publicized news conference gave the
names, addresses, telephone numbers, license plates, and descriptions of the
cars of U.S. Government employees whom he alleged to be CIA officers. Most
recently, six Americans were expelled from Mozambique following charges of
engaging in espionage. These expulsions followed visits to that country by
members of the Cuban intelligence service and the editors of the Covert Action
Information Bulletin.
Extensive hearings before this Committee and its Senate counterpart and be-
fore the two Judiciary Committees during the 96th Congress documented the
pernicious effects of these unauthorized disclosures. Obviously, security con-
siderations preclude my confirming or denying specific instances of purported
identication of U.S. intelligence personnel. Suffice it to say that a substantial
number of these disclosures have been accurate. Unauthorized disclosures are
undermining the Intelligence Community's human source collection capabilities
and endangering the lives of our intelligence officers in the field. The destructive
effects of these disclosures have been varied and wide ranging.
Our relations with foreign sources of intelligence have been impaired. Sources
have evinced increased concern for their own safety. Some active sources and
individuals contemplating cooperation with the United States have terminated
or reduced their contract with us. Sources have questioned how the U.S. Govern-
ment can expect its friends to provide information in view of continuing dis-
closures of information that may jeopardize their careers, liberty, and very
lives.
Many foreign intelligence services with which we have important liaison re-
lationships have undertaken reviews of their relations with us. Some immediately
discernible results of continuing disclosures include reduction of contact and
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reduced passage of information. In taking these actions, some foreign services
have explicitly cited disclosures of intelligence identities.
We are increasingly being asked to explain how we can guarantee the safety of
individuals who cooperate with us when we cannot protect our own officers from
exposure. You can imagine the chilling effect it must have on a source to one day
discover that the individual with whom he has been in contact has been openly
identified as a CIA officer.
The professional effectiveness of officers so compromised is substantially and
sometimes irreparably damaged. They must reduce or break contact with sensi-
tive covert sources. Continued contact must be coupled with increased defensive
measures that are inevitably more costly and time consuming.
Some officers must be removed from their assignments and returned from over-
seas at substantial cost. Years of irreplaceable area experience and linguistic
skills are lost. Reassignment mobility of the compromised officer is impaired.
As a result, the pool of experienced CIA officers available for specific over-
seas assignments is being reduced. Such losses are deeply felt in view of the
fact that, in comparison with the intelligence services of our adversaries, we are
not a large organization. Replacement of officers thus compromised is difficult
and, in some cases, impossible.
Once an officer's identity is disclosed, moreover, counterintelligence analysis
by adversary services allows the officer's previous assignments to be scrutinized,
producing an expanded pattern of compromise through association.
Such disclosures also sensitize hostle security services and foreign populations
to CIA presence, making our job far more difficult. Finally, such disclosures can
place intelligence personnel and their families in physical danger from terrorist
or violence-prone organizations.
It is also essential to bear in mind that the collection of intelligence is some-
thing of an art. The success of our officers overseas depends to a very large ex-
tent on intangible psychological and human chemistry factors, on feelings of
trust and confidence that human beings engender in each other and on atmosphere
and milieu. Unauthorized disclosure of identities information destroys that
chemistry.
Mr. Chairman, I do not believe It is necessary or advisable to go into greater
detail about the adverse effects that unauthorized disclosures of intelligence
identities are having on the work of our nation's intelligence service. The
credibility of our country and its relationships with foreign intelligence services
and individual human sources, the lives of patriotic Americans serving their
country, and the professional effectiveness of our intelligence officers are all
being placed in jeopardy. The underlying basic issue is our ability to continue
to recruit and retain human sources of intelligence whose information could
be crucial to the Nation's survival in an increasingly dangerous world.
It Is important to understand what legislation in this area seeks to accomplish :
It seeks to protect the secrecy of the participation or cooperation of certain
persons in the foreign intelligence activities of the U.S. Government. These are
activities which have been authorized by the Congress ; activities which we,
as a Nation, have determined are essential. No existing statute clearly and spe-
cifically makes the unauthorized disclosure of intelligence identities a criminal
offense. As matters now stand the impunity with which unauthorized disclosures
of intelligence identities can be made implies a governmental position of neutrality
in the matter. It suggests that U.S. intelligence officers are "fair game" for those
members of their own society who take issue with the existence of CIA or find
other perverse motives for making these unauthorized disclosures.
Mr. Chairman, I believe it is important to emphasize that the legislation
which you are considering today is not an assault upon the First Amendment.
The "Intelligence Identities Protection Act" would not inhibit public discussion
and debate about U.S. foreign policy or intelligence activities, and it would not
operate to prevent the exposure of allegedly illegal activities or abuses of author-
ity. The legislation is carefully crafted and narrowly drawn to deal with con-
duct which serves no useful informing function whatsoever ; does not alert us
to alleged abuses ; does not bring clarity to issues of national policy ; does not
enlighten public debate ; and does not contribute to an educated and informed
electorate.
The Bill creates three categories of the offense of disclosure of intelligence
identities :
a. Disclosure of Information identifying a "covert agent" by persons who have
or have had authorized access to classified information that identifies such a
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covert agent. This category covers primarily disclosure by intelligence agency
employees and others who get access to classified information that directly identi-
fies "covert agents" ;
b. Disclosure of information identifying a "covert agent" by persons who have
learned the identity as a re.~ult of authorized access to classified information.
This category covers disclosures by any person who learns the identify of a
covert agent as a result of government service or other authorized access to
classified information that may not directly identify or name a specific "covert
agent" ; and
c. Disclosure of information identifying a "covert agent" by anyone, under
certain specified conditions outlined below.
There is virtually no serious disagreement over the provisions of the legislation
which provide criminal penalties for the unauthorized disclosure of intelligence
identities by individuals who have had authorized access to classified informa-
tion. Controversy has centered around subsections 501(c) of H.R. 4.
Disclosures of intelligence identities by persons who have not had authorized
access to classified information would be punishable only under specified condi-
tions, which have been carefully crafted and narrowly drawn so as to make the
Act inapplicable to anyone not engaged in an effort or pattern of activities de-
signed to identify and expose intelligence personnel. The proposed legislation also
contains defenses and exceptions which reinforce this narrow construction. It is
Istructive, in this regard, to look at the elements of proof that would be required
in a prosecution under subsection 501(c) of H.R. 4. Keeping in mind that the
government would have to prove each of these elements beyond a reasonable
doubt. The government would have to show :
That there was an intentional disclosure of information which did in fact
identify a "covert agent ;"
That the disclosure was made to an individual not authorized to receive classi-
fied information ;
That the person who made the disclosure knew that the information disclosed
did in fact identify a covert agent ;
That the person who made the disclosure knew that the United States was tak-
ing affirmative measures to conceal the covert agent's classified intelligence
affiliation ;
That the individual making the disclosure did so in the course of an effort
to identify and expose covert agents with the intent to impair or impede the
foreign intelligence activities of the United States ; and
That the disclosure was made with the intent to impair or impede the foreign
intelligence activities of the United States.
Because of these strict conditions, subsection 501(c) is narrowly directed at
conduct which Congress has the authority and power to proscribe consistent with
the First Amendment.
Mr. Chairman, I sincerely appreciate your genuine concern about the mainte-
nance of our intelligence capabilities and I wholeheartedly support your efforts to
deal with this very serious problem. I encourage the Committee to proceed to
report this legislation favorably.
STATEMENT OF HON. WILLIAM CASEY, DIRECTOR OF CENTRAL
INTELLIGENCE AGENCY, ACCOMPANIED BY JOHN N. McMAHON,
DEPUTY DIRECTOR FOR OPERATIONS, CENTRAL INTELLIGENCE
AGENCY; AND DANIEL B. SILVER, GENERAL COUNSEL, CEN-
TRAL INTELLIGENCE AGENCY
Mr. CASEY, Mr. Chairman, members of the committee, I will sum-
marize my statement. The majority leader has detailed some of the
things I intended to say and I will not duplicate that, and focus on
the matters in my statement that I think are of particular importance.
I would like to say that I am happy to appear before this committee
and look forward to many other appearances in the future. I am avail-
able any time I can be of help.
I would also like to say, would like to follow up a little bit on the
remarks of the chairman of the full committee, I think it is a very
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auspicious thing that John McMahon, who has this experience in
every phase of the community's intelligence gathering activities, will
now direct the analytical activity which has to assess and make sense
out of all this vast array of information and facts that we have. And
I think this background that will be brought to bear for the first time
on the analytical process will be very important in improving
performance.
And I regret that as I come on board, Dan Silver is going back
to the private practice of law. I appreciate his willingness to-at my
request he stayed on an additional couple of months, and as he leaves,
he is going to leave his telephone number behind so that we can reach
him if we need him.
The intelligence community's support for legislation to provide
criminal penalties for the unauthorized disclosure of information
identifying certain individuals engaged or assisting in the foreign
intelligence activities of the United States is well known and has been
much discussed. I want to emphasize that this administration believes
that passage of this legislation is essential to the maintenance of a
strong and effective intelligence apparatus. Enactment of this legisla-
tion is an important component of the administration's effort to imple-
ment President Reagan's determination to enhance the Nation's
intelligence capabilities.
I might say that coming into this undertaking and this work only
2 months ago, I have been appalled at the degree to which concerted
activity is being and can be carried out around the world to undermine
and destroy a capacity which is critical to our national security and
which has been painstakingly built up over many years with an invest-
ment of billions and billions* of dollars, can be put in jeopardy by the
kind of activity we have seen in many foreign countries in the few
weeks I have been on the job.
As you pointed out in your recent letter to me, Chairman Boland,
"the unfortunate events that gave rise to the need for this legislation
are continuing apace." Mr. Chairman and members of the commit-
tee, there exists a coterie of Americans who have openly proclaimed
themselves to be devoted to the destruction of the Nation's foreign in-
telligence agencies. This group has engaged in actions avowedly aimed
at undermining the Nation's intelligence capabilities by identifying
and exposing undercover intelligence officers. The perpetrators of these
disclosures understand correctly that secrecy and confidentiality is the
lifeblood of an intelligence agency, and the disclosure of the identities
of individuals whose intelligence affiliation is deliberately concealed
can disrupt, discredit, and they hope, ultimately destroy an agency
such as the CIA.
Some of the persons engaged in this activity have actually traveled
to foreign countries with the aim of stirring up local antagonism to
U.S. officials through thinly veiled incitements to violence. And this
has created untold damage, and will in the future if not stopped, cre-
ate untold and continuing damage to the credibility, reliability, and
reputation of our intelligence agencies, and indeed, that of the Nation
itself.
Now, the majority leader detailed the tragic events in Greece and
Jamaica, the lives that were lost there by this kind of disclosure. Still
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more recently six Americans were expelled from Mozambique follow-
ing charges they were engaging in espionage. These expulsions fol-
lowed visits to that country by members of the Cuban intelligence serv-
ice and by the editors of the Covert Action Information Bulletin.
Gentlemen, I do not think it necessary to go into great detail about
the adverse effects that unauthorized disclosures of identities are hav-
ing on the work of the Nation's intelligence agencies. Simply put, the
credibility of our country and its relationships with foreign intelli-
gence services and individual human sources, the lives of patriotic
Americans serving their country, and the professional effectiveness of
our intelligence officers all over the world are all being placed in acute
and continuing jeopardy. Extensive hearings before the House and
Senate Intelligence and Judiciary Committees last year documented
these effects. The underlying basic issue is our ability to continue to
recruit and retain human sources of information whose information
could be crucial to the Nation's survival in an increasingly dangerous
world, and our relations with intelligence services who provide a large
portion of the intelligence on which we rely have been placed in
Jeopardy and are in continuing jeopardy.
It is important to understand what this legislation seeks to accom-
plish. It seeks to protect the secrecy of the participation or coopera-
tion of certain persons in our intelligence activities. These are activi-
ties which have been authorized by the Congress, activities which we
as a Nation have determined as essential. Yet no existing statute clearly
and specifically makes the unauthorized disclosure of intelligence iden-
tities a criminal offense. As matters now stand, the impunity with
which unauthorized disclosures can be made implies a government
position of neutrality on a matter of the gravest concern. It suggests
that U.S. intelligence officers are fair game for those members of their
own society who take issue with the very existence of CIA and find
other motives for making these unauthorized disclosures.
Mr. Chairman, I believe it is important to emphasize that the legis-
lation being considered today is not an assault upon the first amend-
ment. It would not inhibit public discussion and debate about U.S.
foreign policy or U.S. intelligence activities. It would not operate to
prevent the exposure of allegedly illegal activities or abuses of author-
ity. The legislation is very carefully crafted and narrowly drawn to
deal with conduct which serves no useful informing function what-
soever; it does not alert us to alleged abuses; does not bring clarity to
issues of national policy; does not enlighten public debate; and does
not contribute to an educated and informed electorate.
The bill creates three categories of this offense of disclosure of
intelligence identities. The first is the disclosure by persons who have
had authorized access to classified information that identifies such
a covert agent. This category covers primarily disclosure by employees
of the intelligence agency and others who get access to classified infor-
mation that directly identifies covert actions.
The second category is disclosure by persons who have learned the
identity as a result of authorized access to classified information. This
category covers disclosures by any person who learns the identity of
a covert agent as a result of Government service or other authorized
access to classified information that may not directly identify or name
a specific agent.
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And finally, it covers disclosure of information identifying a covert
agent by anyone, and this is under very limited and carefully specified
conditions.
There is virtually no serious disagreement over the provisions of the
legislation which provide criminal penalties for the unauthorized dis-
closure of intelligence activities by individuals who have had author-
ized access to classified information. Controversy surrounds subsection
501 (c) of this bill.
Disclosures of intelligence identities by persons who have not had
authorized access to classified information would be punishable only
under very carefully specified conditions, carefully crafted and
narrowly drawn so as to make the act inapplicable to anyone not
engaged in an effort or pattern of activities designed to identify and
expose intelligence personnel. The proposed legislation also contains
defenses and exceptions which reinforce this narrow construction.
It is instructive in this regard, then, to take a look at the elements
of proof which would be required to successfully prosecute a person
under subsection 501(c). The Government would have to prove each
of these elements beyond a reasonable doubt.
They would have to show, first, that there was an intentional dis-
closure of information which did in fact identify a covert agent;
second, that the disclosure was made to an individual not authorized
to receive classified information; third, that the person who made
the disclosure knew that the information disclosed did in fact iden-
tify a covert agent; fourth, that the person who made the disclosure
knew that the United States was taking affirmative measures to con-
ceal the agent's intelligence affiliation; five, that the individual mak-
ing the disclosure did so in the course of an effort to identify and
expose covert agents with the intent to impair or impede the foreign
intelligence activities of the United States; and finally, that the spe-
cific disclosure was made with the intent to impair or impede the
foreign intelligence activities of the United States.
Now, because of these strict conditions so narrowly directing the
statute and the conduct which the Congress has the authority and
power to proscribe consistent with the .first amendment, I think there
can be no doubt about its constitutionality.
I would like to say, I would like to make two observations in
closing. First, this legislation as drawn still leaves individuals who
come into possession of classified information and thereby learn the
name of an individual agent free to disclose it with impunity, no
liability of any kind, for the purpose of frustrating a particular
intelligence activity. If it is a particular operation that they want
to blow wide open, this statute doesn't reach them. And I leave to
you the implication of that continuing vulnerability and the other
vulnerabilities we continue to carry.
But I felt the obligation to point out that in so carefully protect-
ing the rights of discussion and the rights of individuals, that we
are only talking about reaching individuals who are engaged in a
concerted effort, a continuing pattern of activity which, as I say,
leaves open the possibility that people are still free to blow open a
particular activity.
And the second observation is that despite this particular limita-
tion and maybe others, this bill will deal with a clear and immediate.
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danger which-currently, every day, jeopardizes and endangers not
only our intelligence activities but the lives of those who work for
our Government and those in other countries who .wish to cooperate
with us. And I want to express gratitude and appreciation to this
committee for so promptl bringing this legislation forward and
beginning to process it, and express the hope that it will be enacted
into law as quickly as possible so that this jeopardy which is hanging
over our heads is removed and we are able to reassure not only our
own personnel, but those who work with us around the world and
those who cooperate with us, and those who go out and provide infor-
mation to meet our needs.
Mr. Chairman, thank you very much, members of the committee.
I will be happy to answer any questions that you would like, to
put to me.
Mr. MAzzoLi. Thank you very much, Mr. Casey, fora fine statement
and for your appearance today.
I would yield myself 5 minutes now for just a very few questions.
In making your statement, have you had a chance to speak to Presi-
dent Reagan or to people with him with regard to the position that
those around him would take on this, and is he in favor of this bill?
Mr. CASEY. Yes, I have. I have reported to the NSC meetings that
this legislation is being put forward and introduced by this committee,
and he
Mr. MAZZOLI. And so he would support the bill and
Mr. CASEY. Thoroughly, thoroughly.
Mr. MAZZOLI. Very fine. Thank you.
Mr. Casey, as you have known, 501 (a) and (b) pose no great prob-
lem because in both of those instances there is a breach of trust. In one
case there is an access to the specific names; in another case, access to
classified information which can be used to yield the names. It is only
in the area of the 501 (c), which is what you have said, that there is
some concern and some difference of opinion.
And with respect to that, I would just ask you a philosophical ques-
tion. Do you believe that this kind of activity naming names which
can be derived from information in the public domain, is still sanc-
tionable and should be penalized when its purposes is to upset the
activities and capabilities of the United States 4
Mr. CASEY. Yes, I do.
Mr. MAZZOLI. And in some ways, would you suggest that while there
are obviously constitutional implications, there always are in this case,
that they have been-and you are a lawyer and have a lot of back-
ground in working in government, in the legal side-that they are
solved to your general satisfaction I
Mr. CASEY. I think they are solved which is why I am confident of
the constitutionality of the bill, and as I indicated, I think the com-
mittee has been very careful in limiting the reach of this bill.
Mr. MAZZOLI. Thank you.
May I ask your Counsel Mr. Silver a question?
Mr. CASEY. Certainly.
Mr. MAZZOLI. Thank you.
Mr. CASEY. Mr. Silver and Mr. McMahon are both available.
Mr. MAzzoLI. Mr. Silver, let me ask you the question that is one of
many in this area of 501(c). The standard of proof, the double intent
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which is in the version before us, H.R. 4, and the reason to believe
standard which the Senate is using, could you maybe give us a few
words of wisdom on that as to whether you believe the double intent is
the best way to go or whether the reason to believe is a preferable
avenue?
Mr. SILVER. I think the witness from the Department of Justice
will express the views of those who would have to carry forward any
prosecution under this bill in favor of the reason to believe standard
as imposing a lesser burden on the Government, making the practicali-
ties of prosecution more likely. Obviously from the Agency's point
of view we want a bill that will work, that will serve a deterrent pur-
pose, and if violated, that can effectively be prosecuted.
I have personally a great deal of optimism that a prosecution could
be carried forward successfully under either version of the bill.
Mr. MAZZOLI. Under the double intent as well.
Mr. McMahon, I would ask you one question as a person who has
worked with agents in the field. That has been your profession for
these years. Do you think that a bill like H.R. 4 is necessary from the
standpoint of giving your people the opportunity to do what they are
paid and sworn to do?
Mr. SILVER. Indeed, Mr. Chairman. In fact, as the majority
leader so eloquently put it, our sources wonder how we can possibly
protect their identity if we can't protect the identity of our own
staffers. And I feel it is essential. We don't know how many opportuni-
ties we have missed. We do know that foreign liaison services have
demurred from association with us. They have indicated that they
have refrained from providing us with information because of the fear
of exposure, and we have had sources who were indeed employed by
us for years refuse to further cooperate because of fear of their identity
being exposed.
Mr. MAZZOLI. Thank you.
Let me ask you one last question One of the concerns that we have
had in this is that this bill may be overbroad.
Do you think H.R. 4 should go beyond CIA officers to include assets
and informants?
Mr. MCMAHON. It definitely should include anyone, associated with
the intelligence activities of this Government.
Mr. MAZZOLI. I thank you. My time has expired.
The gentleman from Illinois?
Mr. MCCLORY. Thank you, Mr. Chairman.
Mr. Casey, I know that you have several legislative initiatives,
several subjects on which you want to see some legislative changes,
including, I believe, the Freedom of Information Act and possibly
the Foreign Intelligence Surveillance Act.
However, the top priority as far as your agency is concerned I
believe is enactment of the identities of agents legislation, is it not?
Mr. CASEY. Yes, Mr. McClory, that is our top priority.
Mr. MCCLORY. And until we enact this statute, you really don't
have anything to rely upon, do you, except the agreement that is
signed when people come to work in the CIA when faced with the
faithlessness of those who violate the agreement, either while they
are working or after they leave and decide they are going to write
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books or expose individuals and identify them, or get into the pub-
lication of some kind of a sheet that would disclose the identities of
these individuals?
Mr. CASEY. Well, measured against the damage done, the damage
potential, what we have now is almost nothing. The contractual right
to enforce a contract, I think that goes pretty much to broadly pub-
lished information.
Mr. MCCLORY. Until we enact this, we don't really have the tools,
do we, to prosecute or to deter those who would continue their faith-
less, disloyal conduct.
Mr. CASEY. That is entirely right.
Mr. MCCLORY. Mr. Silver, you have indicated that you feel that
the Department of Justice may prefer the language of the Senate bill
with its "reason to believe" standard.
The reason to believe test, however, it seems to me is going to con-
tinually put the burden on the prosecution to disclose classified infor-
mation. In other words, we are going to find that the so-called greymail
situation will arise in which the defendant says, well, I can't defend
myself unless you make available to me classified information, and
then we will have the prosecution required to come forward with classi-
fied information which will be heard in secret by the court and then
the court will decide whether or not that information is necessary for
the defense, and so on.
Is it not true that if we would adopt the language of the House bill,
the bill that is sponsored by Mr. Boland, Mr. Mazzoli and myself, and
others, that we would not be confronted with that kind of a problem?
Mr. SILVER. I think, Mr. McClory, that it certainly is accurate that
there would be less of an opening for the defendant under the House
version to attempt, for example, to obtain discovery of classified in-
telligence materials. Nonetheless, I would hope that if there were-if
the Senate bill were enacted and there were a prosecution under that
bill-that the courts would take the position that what the defendant
and the public don't know is really irrelevant to the reason-to-believe
standard, which is akin to the reasonable-man standard that is found
in tort law and elsewhere. But there certainly is a danger the courts
would hold the other way.
Mr. MCCLORY. And we would hope that they would apply the grey-
mail bill warily so that we wouldn't frustrate prosecutions.
It has also been suggested that maybe we ought to adopt both
standards : That the person can b3 charged with a violation of this
act if he or she has reason to believe-or if he or she has the intent to
impede our intelligence activities.
What do you think about any legislation that would have that kind
of an alternative in it?
You are my lawyer today.
Mr. SILVER. All right.
I think that again, looking at it from the Agency's desire to have
an effective and usable statute, that anything that gives the prosecutor
two strings to his bow is nrobably desirable.
Mr. MCCLORY. Would it not be more difficult, however, with the
alternative, that the test which would have to be complied with would
be uncertain ?
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Mr. SILVER. You are talking about the reason to believe
Mr. McCroEY. The either/or, yes.
Mr. SILVER. Well, I think if the bill were phrased in the alterna-
tive, the prosecution could presumably opt for either of these two
formulations, whichever one it thought it could prove.
Mr. MCCLORY. Thank you, Mr. Chairman.
Mr. MAzzoLr. The gentleman's time has expired.
The gentleman from Georgia is recognized for 5 minutes.
Mr. FOWLER. Mr. Casey, we also welcome you.
May I ask you, Mr. Silver, if you have not already done so, would
you for the record give us the Agency's official position on the alter-
native to section 501(c) of H.R. 4, specifically, the Senate Judiciary
Committee's language in S. 2216 of the 96th Congress, and second, the
so-called Kennedy compromise to the judiciary bill's language.
If you would submit that at some time In the future, we would
appreciate it.
Mr. SILVER. I would be glad to do that.
[The information referred to follows:]
THE DIRECTOR,
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., April 9.,9, 1981.
Chairman, Permanent Select Committee on Intelligence, House of Representa-
tives, Washington, D.C.
DEAR MR. CHAIRMAN : During the course of the reeent hearings on the pro-
posed "Intelligence Identities Protection Act" before the Subcommittee on Leg-
islation, the following requests were made of me :
Representative Ashbrook asked, as a drafting service, that we provide him
with language for a "false identification" provision that would meet constitu-
tional muster ;
Representative Fowler asked for the Agency's official views on the Senate
version of subsection 501(c) and the so-called "Kennedy Compromise" suggested
in the closing days of the 96th Congress.
As to Representative Ashbrook's request, one such version is presently found
in subsection 800(d) of H.R. 133, the "Intelligence Officer Identity Protection
Act of 1981," Introduced by Representative Charles E. Bennett (D., FL). Mr.
Bennett's formulation contains a harm standard, that is, prejudice to the safety
or well-being of any officer, employee, or citizen of the U.S. or adverse impact
on the foreign affairs functions of the United States. The Bennett formulation
provides a readily available solution. The formulation that appears in H.R. 133
is as follows :
"Whoever falsely asserts, publishes, or otherwise claims that any indiivdual
is an officer or employee of a department or agency of the United States engaged
in foreign intelligence or counterintelligence activities, where such assertion,
publication, or claim prejudices the safety or well-being of any officer, employee,
or citizen of the United States or adversely affects the foreign affairs functions
of the United States, shall be imprisoned for not more than five years or fined
not more than $50,000, or both."
In the course of the testimony by Richard K. Willard, the Attorney General's
Counsel for Intelligence Policy stated that, in his opinion, a "false identification"
provision containing a "life endangerment" element would be both enforceable
and constitutional. I would stress, however, that such a physical harm standard
would not be suitable for the sections of the Bill which cover correct identifica-
tions of intelligence personnel. The physical safety of our people is, of course, a
matter of grave concern, but the Identities legislation is designed to deal pri-
marily with the damage to our intelligence capabilities which is caused by un-
authorized disclosures of identities, whether or not a particular officer or source
is physically jeopardized in each individual case.
As to the first question posed by Mr. Fowler, i.e., the Agency's views on the
Senate's version of subsection 501(c), we start from the basic premise that H.R.
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2$
4 and S. 391 are essentially similar. Both are carefully and narrowly crafted
Bills which could effectively remedy the problems posed by the unauthorized
disclosures of intelligence identities, and withstand challenge on constitutional
grounds. Thus, the CIA would support enactment of either H.R. 4 or S. 39L As
you know, the Bills do differ with respect to the standard of proof that would
apply to individuals who have not had atuhorized access to classified information,
and which would criminalize their disclosures of identities even if these dis-
closures cannot be shown to have come from classified sources. This has been the
most controversial part of Identities legislation, and it is also the key provision
from the standpoint of the legislation's potential effectiveness in deterring un-
atuhorized disclosures. We have concluded that the objective standard of proof
contained in S. 391 (i.e., "reason to believe that such activities would impair or
impede . . .") is preferable to the subjective standard set forth in H.R. 4 (i.e.,
"with the intent to impair or impede ..."). This preference is based upon a
number of factors, including prospects for successful prosecutions under the dif-
fering formulations. We have discussed this matter at great length with the
Department of Justice, and we believe that our preference for S. 391 is in accord
with the Department's views.
Mr. Fowler's second question goes to the issue of the so-called "Kennedy
Compromise," printed in the 30 September 1980 Congressional Record and set
forth herein below:
"Whoever, in the course of a pattern of activities undertaken for the purpose
of uncovering the identities of covert agents and exposing such identities (1) in
order to impair or impede the effectiveness of covert agents or the activities In
which they are engaged by the fact of such uncovering and exposure, or (2)
with reckless disregard for the safety of covert agents discloses any information
that identifies an individual not authorized to receive classified information,
knowing that the informtaion disclosed so identifies such individual and that
the United States is taking affirmative measures to conceal such Individual's clas-
sified intelligence relationship to the United States, shall be fined not more than
$15.000 or imprisoned not more than three years, or both."
This formulation appears to raise the same kinds of problems of proof of intent
which the Department of Justice believes are present in the current formulation
of the subsection 501(c) offense in H.R. 4, since the Government would have to
show that the disclosure was made "in order to" impair or impede the effective-
ness or covert agents or their activities. A defendant could assert that his activi-
ties and his disclosures were done "in order to" accomplish some other purpose.
Inclusion of the alternative "reckless disregard" standard In any 501(c) type
provision would be of doubtful value. It is difficult to understand what IS meant
by "reckless disregard" in the context of the Identities Bill, since Congress, by
enacting Identities legislation is in effect making a finding that unauthorized
disclosures of identities do in fact threaten the personal safety of intelligence
personnel. A reckless disregard standard would apparently mean that the Gov-
ernment would have to make an additional showing of physical endangerment in
each particular case. This, from a deterrent perspective, would appear to be
inadvisable.
Additionally, the Committee may wish to consider one technical amendment
to H.R. 4, not mentioned in the course of the recent Identities hearings, but
nonetheless dictated by enactment In the 96th Congress of S. 1790, the "Privacy
Protection Act of 1980," legislation signed into law by President Carter on 14
October 1980 and designed to modify the Supreme Court's decision in Zurcher v.
Stanford Daily. The enactment of this legislation has a bearing on our efforts
to secure passage of Identities legislation. The identities legislation should
include a provision amending subsections 101(a) (1) and 101(b) (1) of the
Privacy Protection Act so as to include the proposed new title of the National
Security Act of 1947 among the "receipt, possession, or communication" of na-
tional security information offenses with regard to which searches and seizures
may be conducted under the exceptions provided in those subsections.
Should you have any questions concerning the views expressed in this letter.
please do not hesitate to contact my Legislative Counsel directly. We look for-
ward to working with the Committee to ensure prompt enactment of Identities
legislation.
Sincerely,
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Mr. Fowi.ER. I think-I am sure I speak for all my colleagues in
stating that we want an effective bill. As Mr. Silver said, we want a
bill that really works, and for a moment I want to discuss with you
the nonclassified information section of the bill, the section that deals
with publicly available information.
Mr. McMahon, I just cannot figure out how easy those sections
are going to be to circumvent. For instance, the problem of foreign
nationals in a country like Great Britain, how easy is it going to be
for them to have access to the same publicly available information
and have it get out?
I know you, like us, want mainstream reporting excluded, publicly
held information.
Isn't there a real potential for circumvention in these cases?
Mr. McMahon?
Mr. MCMAHON. We think not, Mr. Fowler. We feel that the control
that we have imposed on the executive branch's assisting us in our ac-
tivities overseas will suffice that the foreign national cannot come
upon the information easily, and that it is usually from people from
within or people who have been associated with personnel who have
been on the inside. So we are content that this bill will go a long way
in providing the protection that we seek.
Mr. FOWLER. Mr. Rose raised the question, Mr. McMahon, that we
also talked about a lot last year when we were dealing with this legis-
lation, and that is the question of adequate cover provided by the
Agency.
Just-I feel like I ought to give a disclaimer, that my questions do
not necessarily reflect the view of the questioner. Just for purposes of
discussion, what would your position be as an alternative to the pub-
licly available information sections of the bill, which are controversial,
if we did one or more of the following : No. 1, statutory authority for
the withholding of the State Department's Biographic Register; No.
2, statutory authority for CIA agents to be provided with cover des-
ignations in any full time career U.S. Government position and/or a
mandate to the new administration to take a close look at what is nec-
essary and would be effective in this area, and then report back to the
Congress f
Mr. CASEY. Mr. Chairman, I think the latter, I think we are going
to get full cooperation in the availability of cover from the new admin-
istration. There are certain technical inhibitions related to the number
of people that can be overseas, and I hope we can do something about
that.
As to the nonpublication of the State Department Register and so on,
it doesn't strike me that that would be terribly helpful. I think people
would be around anyway, the information would somehow be avail-
able. So we would still need these more stringent penalties.
Mr. FowLER. You made a strong statement, Mr. Director, which of
course we appreciate. I just want to make sure that we are proceeding
apace with the administration, with the proper oversight committees,
that we are convinced that this approach in these controversial areas
is unquestionably the best approach, and are you satisfied?
Mr. CASEY. Yes; I am. I think that I did say that I thought the ad-
'ministration, I am confident they will cooperate in providing cover,
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but the kind of preparatory provision which is in the bill I think can
only be helpful.
Mr. MAzzom. I'm sorry, the gentleman's time has expired.
The gentleman from Ohio, Mr. Ashbrook, you are recognized for 5
minutes.
Mr. Asixoo$. Thank you, Mr. Chairman.
Sometimes when I listen to these hearings I think we lose sight of
the type of people we are dealing with and the seriousness of the situa-
tion. I know in the CIA they are your friends and brothers out there,
but for the rest of us, sometimes we don't realize the type of attacks
they are getting.
My good friend from Massachusetts and I disagree on this particu-
lar area that I will ask a question about, but before I do, I just want
the record to show some of the statements of the type of -people we are
dealing with because you have to put it in this perspective to see
whether or not there is a clear and present need.
T&lking about Richard Welch, who was shot down in front of his
home in Athens, I have for the record-and I might ask unanimous
consent later to put the entire statements in if somebody thinks I have
taken them out of context-but in a press release of December 28, 1975,
issued by the publishers of Counterspy, the Organizing Committee for
the Fifth Estate justified that murder with the following quote, direct
quotes, "it was a violent retribution for CIA exploitation and repres-
sion." And it went on to say, Mr. Casey-obviously you were not the
Director at that time, but you are in the direct chain of command, so
they are in effect attacking you or anyone like you-"If anyone is to
blame for Mr. Welch's death, it is the CIA that sent him to Greece to
spy and interfere in the affairs of the Greek people and a rendezvous
with a death symbolic of the horrible essence of the CIA."
That's the type of people we are dealing with, the maliciousness, the
total anti-American essence of everything they do. They did exactly
the same thing in Jamaica. We had hearings. We have the pictures
that they showed in their press conferences, the pictures of these poor,
innocent people who were not CIA agents, and they endeavored to
inflame the populace against them. Then logically what happened,
some people go out and take a shot at these people in their homes.
I think it is in that context that I have to ask the question a little
bit differently then I did of Mr. Wright. I look at it from that context.
Maybe that is why I look upon it as so important that we protect those
who are fraudulently identified as CIA agents. When we see people
like that who are out there trying to damage you, your work, anybody
associated with the CIA, indeed, any person in the Government who
might even be within scatter shot range of what you are doing, John
Ashbrook says at that point I think there should be a legislative
remedy.
Now, that is my statement. I know you are not on record on this
point one way or another, but what is specifically the position of the
CIA in your administration, Mr. Casey, on the subject of the fraud-
ulent identification of agents who are not in fact CIA agents?
Mr. CASEY. Well, I think that it would be more difficult to establish
the intent, more difficult standards of proof. But I think in terms of
the culpability, because this statute would apply only to those who
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are engaged in a continuing pattern of events seeking to destroy Amer-
ican intelligence activities, I think it would be perfectly appropriate
to apply it to those who throw a name around falsely as well as those
who tihrow a name around accurately.
Now, I recognize the chairman's problem, if you were dealing with
a particular labeling by any individual, but you are only dealing
with people who are doing this in the course of a current pattern and
continuing pattern of activity aimed at destroying American intel-
ligence activities.
So I think it is perfectly appropriate and fair, and I think while the
standard of proof may be more difficult, it would still be an added de-
terrent to this kind of activity, because indeed, I think that in the con-
duct of this activity, a lot of the names that have been thrown out are
kind of guesses. I am not satisfied that it is all done responsibly. I
haven't got actual proof, they don't always know that the people they
are naming are working for CIA. I am sure they are throwing out
names that they merely suspect, or have some rumor or reason to be-
lieve, and I think that that is as culpable in this context as throwing
out the actual names.
Mr. ASHBROOK. Well, that is very encouraging, and I think you and
I would share the common thought that whatever we might want to
do, there still are difficulties of language, and therefore strictures that
have been put there, rightly or wrongly, by the courts. Knowing that,
and within those parameters, then, could I ask you
Mr. MAZZOLI. I am sorry. The gentleman's time has expired.
Mr. ASHBROO$. Could I have 30 seconds to at least continue my
question?
Mr. MAzzou. Yes.
Mr. ASHBROOK. Could I ask you to instruct your legal department to
try to come up with language you think will meet a constitutional test
in this particular area?
Mr. CASEY. Yes; we will consider that and submit it to you for the
record.
Mr. AsHBaxoog. Thank you.
Mr. MAZZOLI. Thank you.
The gentleman from Massachusetts.
Mr. BOLAND. I don't have any problem with John's statement, and I
share his belief in his opinion of those who falsely accuse people work-
ing for the CIA, identifying those who work for the CIA or any of the
agencies of the intelligence community. Again, the problem is whether
or not that ought to be incorporated into this particular bill. You real-
ize as well as I do that we have had problems with it, and one of those
problems did center around the very question that you raise. It might
very well be that in some other forum, in some other place, in some
other bill we could take care of that problem. I think probably it ought
to be taken care of, and I agree with you, the whole intent and purpose
of those of Counterspy, the Covert Action Information Bulletin, their
purpose and intent is to destroy the intelligence operations of the
United States. They have said so. That is their credo. And that is what
they are bent on doing, and that is the reason they are in business.
So my opinion of those individuals is precisely what yours is.
Let me ask, Mr. Casey, you have had a lot of experience in this
area, in intelligence operations. You were one of the top people in the
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Office of Strategic Services during World War II. Of course, that
was-the climate is totally different today than it was in those days, so
you never had the problem of the disclosure of CIA or intelligence
operatives at that time, or people who were working for the OSS, isn't
that correct?
Mr. CASEY. That is correct, not in the same context.
Mr. BOLAND. But we are living in a different era, in a different, cli-
mate, and I suppose it is a lot easier to-it would be a lot easier to take
care of problems during wartime where you have an emergency and
a declaration of war, it would be a lot easier to take care of the problem
that now is upon us. But as I have said, this is a difBerent day and a
different era.
Let me ask Dan Silver whether or not-the Director has listed those
six elements which must be proved beyond a reasonable doubt-I won't
repeat them. They are in the record-and that in a sense really estab-
lish a pattern of activities which are designed to expose and to identify
intelligence personnel, and that if you are not engaged in that pattern
of activities, then you would not be subject to the penalties that are
imposed by 501(c) .
Is that your belief ?
Mr. SILVER. The statute does not use the phrase "pattern of activi-
ties" but I think it is implicit in the phrase which is used : "In the
course of an effort to identify and expose". which is followed by covert
agents in the plural, with the intent to impair or impede foreign intel-
ligence activities, in the plural, and I believe the legislative history in
the last session established that that was the committee's thought be.
hind the form of language that is in here.
Mr. BOLAND. And that would !be, it would seem to me-or would you
believe that that is the kind of legislative intent that ought to be
established?
Mr. SILVER. I think that that is as close as one can come to a bright
line between the kind of activity that we are all trying to deal with,
and on the other side, the activities of the responsible journalist or
scholar. I believe that that is the reason that lies behind the attempt in
both bills to put in the concept of pattern or course of conduct.
Mr. BOLAND. In your judgment, does the Senate bill require the same
kind of governmental proof of the six elements that have been deline-
ated here?
Mr. SILVER. Of course, the Senate bill differs significantly with re-
spect to the intent element by having a so-called objective intent.
Mr. BOLAND. Would a violation be easier to prove under the Senate
bill or the House bill?
Mr. SILVER. I would defer to the Justice Department on that. They
are the prosecutors.
Mr. BOLAND. OK, thank you very much.
Mr. MAZZOLI. Thank you, Mr. Chairman.
The gentleman from Arizona.
Mr. SMp. I have no questions, Mr. Chairman.
Mr. MAZZOLI. Thank you.
We have a vote, so we will have to adjourn for just a moment.
Mr. Casey, thank you very much, Mr. McMahon, Mr. Silver. We ap-
preciate your attendance today.
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There have been some questions asked for written response. There
may be other questions that we didn't get to today that we will ask you
to respond, and we will, as we have said before, work with expedition
to report our bill, and we will be looking to work together to try to
promote something to the statute books of this land.
Thank you very much.
The committee will stand adjourned for 10 minutes.
[A brief recess was taken.]
Mr. MAZZOLI. The committee will come to order.
Our last witness for today's session is Mr. Richard Willard, who is
the Counsel to the Attorney General for intelligence policy, and this
is, as you have heard earlier, sort of a day of firsts and last. Your col-
leagues in Government, Dan Silver and John McMahon, are moving to
different activities, and you are joining us for the'first time.
So we really want to welcome you. We want to wish you much suc-
cess in your new activities downtown, and we look forward to receiv-
ing your statement today concerning this legislative activity.
And. I will, without objection, have inserted as a. full part of the
record your statement. You are free to read it or talk about it, however
you wish.
[The prepared statement of Richard K. Willard follows:]
STATEMENT OF RICHARD K. WILLARD, COUNSEL TO THE ATTORNEY GENERAL FOB
INTELLIGENCE POLICY
Mr. Chairman and members of the Select Committee, It is a pleasure for me
to appear before you today on behalf of the Attorney General to express the
views of the Justice Department regarding H.R. 4, the House Committee's pro-
posed Intelligence Identities Protection Act.
I would like to emphasize at the outset that the Justice Department strongly
supports the enactment of legislation that would provide additional criminal
penalties for the unauthorized disclosure of the identities of the clandestine In-
telligence officers, agents and sources who are the mainstay of this Nation's
foreign Intelligence and counterintelligence efforts. The national security of the
United States depends to a substantial degree on the strength and vitality of our
intelligence services. This strength and vitality is sapped, and the very lives of
the individuals involved in these activities on behalf of the United States may
be endangered, by their unauthorized identification to the media, the public and,
as a natural consequence, to the intelligence and security services of our adver-
saries. We believe that additional legislation of this type would be vital in
deterring and punishing those who would make such unauthorized disclosures.
It has been the position of the Department since discussion of such legislation
began in earnest a few years ago, that the knowing disclosure of the classified
identity of a clandestine officer, agent or source of a U.S. intelligence agency can
constitute a violation of sections 793(d) and (e) of the existing espionage stat-
utes included in Title 18 of the United States Code. Nonetheless, additional and
more specific legislation would be invaluable in facilitating prosecutions of those
who seek to neutralize such individuals by their exposure. Such legislation would
clearly demonstrate the Government's concern for the welfare of these persons
and, if carefully crafted, will enable the Government to avoid several difficult
problems that are encountered in prosecutions pursued under the current espion-
age laws. For example, current law criminalizes attempts to communicate, deliver
or transmit information relating to the national defense. It has never been clearly
established that the publication of such information in a book, magazine or news-
paper is activity of a nature meant to be included in this prohibition. While the
Department has argued that publication is included, we agree it would be desir-
able for the Congress to resolve this issue, at least as regards the classified iden-
tities of clandestine intelligence personnel. The bill would also remove from the
Government the burden of demonstrating in each case that the information dis-
closed is related to the national defense and could be used to the harm of the
United States or the advantage of a foreign nation.
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I would like to move now to address the provisions of H.R. 4, the bill now before
this Committee after its introduction by Chairman Boland on behalf of himself
and a number of other Representatives. The bill would prohibit the disclosure; of
information identifying a "covert agent"-a defined term covering a range. of
Government employees, agents, informants and sources. Varying penalties would
be applied to three different categories of persons if they were involved in the
unauthorized disclosure of such information.
The first category is described in section 501 (a) of the bill and includes per-
sons who have or have had authorized access to classified information that iden-
tifies covert agents. A person in this category who intentionally and knowingly
identifies such an agent to a person not authorized to receive classified informa-
tion would be subject to a maximum fine of $50,000, a prison term of up to, ten
years, or both.
The second category is described in section 501(b) and includes persons who
learn the identities of covert agents as a result of having authorized access to any
classified information. The information to which the person has access need not;
as in the first category, specifically identify covert agents. However, it is neces-
sary to prove that the identity is learned through the authorized access. A person
in this category who knowingly and intentionally identifies such an agent to a
person not authors?ed to receive classified information would be subject to a
maximum fine of $25,000, a prison term of up to five years, or both.
These provisions will add substantial protections against disclosures by current
and former Government employees and contractors who have been authorized to
have access to classified information and the identities of covert agents in 'the
course of their authorized access. The fact of such access lends an aura of credi-
bility to disclosures by such persons and may provide them with a degree of
expertise regarding how such identities are concealed and the means for piercing
such concealment measures. Such persons, because they have occupied positions
of special trust and have been provided access to such information by the Govern-
ment, would be barred from making any disclosure to unauthorized persons of the
identity of a covert agent, even when based merely on informed speculation or the
analysis of publicly available information. The Department believes these reatric-
tions are justified and sustainable.
We have one suggestion concerning these provisions. Neither section now in-
cludes a provision that would criminalize "attempts" to commit the proscribed
actions. Such a provision would specifically authorize the Government to initiate
a prosecution of any person within the terms of sections 501(a) or (b) who has
taken a substantial step toward, but has not completed, the disclosure of the
identities of covert agents. Such actions should be deterred and subject to punish-
ment without forcing the Government to delay until the identities have actually
been disclosed to the public.
The third and final category of persons covered by the bill is described in section
501(c) and includes persons who, in contrast to the first and second categories,
have 'not had authorized access to classified information that identifies or results
in learning the identities of covert agents. This provision would penalize a person
in this category who engages in an effort to identify and expose covert agents with
intent to impair or impede U.S. foreign intelligence activities and who knowingly
discloses information identifying such an agent to a person not authorized to
receive classified information in the course of such an effort with the intent to
impair or impede U.S. foreign intelligence activities. Such action would be subject
to a maximum fine of $15,000, a prison term of up to three years, or both. This
section obviously has been the source of the most difficult issues presented by this
bill since it would provide a criminal penalty for any person, including those who
have never had authorized access to classified material, to disclose information
identifying a covert agent even if it is derived from lawfully available public
sources.
The nature of this provision extends it beyond the reach of the current espio-
nage laws as they have been applied. As I have stated, those laws extend protec-
tion to information relating to the national defense. In the case of U.S. v. Heine,
151 F. 2d 813 (2d Cir. 1945), it was he'd that providing a foreign government with
information accumulated from public sources did not constitute an offense under
the espionage statutes even if accompanied by the requisite intent to injure the
U.S. or provide advantage to a foreign power. That case was based, however, on
the court's understanding of the specific statutory language in question and the
legislative intent underlying its enactment. Certainly the language and history
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of the current proposed legislation will preclude any effort to limit its scope based
upon the Heine precedent.
In any event, it has been argued that the principles of the First Amendment
are done violence where the Government seeks to punish actions that are facil-
itated by information that is made available to the public in materials promul-
gated in some cases by the Government itself. We do not believe this argument
has any merit. The First Amendment is not absolute, and we are confident that
a carefully drafted bill such as H.R. 4 would be constitutional, based on Con-
gressional findings of specific harm from the actions the statute is intended to
prevent.
Although we believe section 501 (c) is constitutional and enforceable as it is
now drafted, we hope the Committee will consider some changes in wording to
facilitate prosecuting cases that are likely to arise. It is our belief that the specific
intent requirement stated in H.R. 4 not once, but twice, will intensify the prac-
tical evidentiary problem that we face in every criminal prosecution. The provi-
sion as now drafted requires proof of an effort to identify and expose covert
agents with intent to impair or impede U.S. foreign intelligence activities and
proof of a knowing diselnspre of information identifying such agents, again with
intent to impair or impede those activities. This means that in every case, unless
the defendant has confessed to such a state of mind, serious jury questions may
be raised on the issue of intent as to both the effort and the disclosure. In some
situations, a defendant might try to confuse this issue further by claiming that
the intent of a particular disclosure was not to impair legitimate intelligence
activities but to expose the existence of intelligence activities that were be-
lieved to be improper or ill-advised and deserving of public debate or reform. Of
course, we do not believe that the language or legislative history of H.R. 4 would
authorize such a "good faith" defense. However, the specific intent requirement
could serve to confuse the issues to the point where the Government could be
unable to establish the requisite intent beyond a reasonable doubt in prosecu-
tions brought under the statute.
The Senate counterpart to this bill, S. 391, alleviates these potential problems
by requiring only that a defendant be shown to have had "reason to believe,"
rather than specific intent, that the disclosure would impair or impede U.S. intelli-
gence activities. This objective standard is preferable to the Justice Department
since it would relieve the difficult burden otherwise imposed on the Government
to prove the defendant acted with an evil state of mind. This type of "reason to
believe" standard has been found by the courts to be valid and has survived con-
stitutionally-based charges of overbreadth and vagueness. See, e.g., United Staten
V. Bishop, 555 F.2d 771 (10th Cir. 1977) ; Sehmeller v. United Staten, 143 F.2d 544
(6th Cir. 1944). We believe this standard would be more easily applied and sus-
tained by the courts.
Finally, there is no definition or explanation in the bill regarding the meaning
of the term "foreign intelligence activities" as used in this section of the bill.
It would be helpful to make clear, at least in the legislative history of the bill,
that this term is intended to encompass both intelligence collection gathering
functions and the conduct of covert operations.
Mr. Chairman, it is our belief that with these changes this bill will clearly strike
a proper balance among the various competing interests. Legislation of this nature
is critical to the morale and confidence of our intelligence officers and their sources.
The Justice Department strongly recommends that it be reported out of this Com-
mittee with a favorable recommendation for enactment by this Congress.
I would be happy to address any questions you may have at this time.
STATEMENT OF RICHARD K. WILLARD, COUNSEL TO THE
ATTORNEY GENERAL FOR INTELLIGENCE POLICY
Mr. WmLAnD. Thank you, Mr. Chairman.
This is a first for me, also, to testify before any congressional com-
mittee, and I appreciate your courtesy in inviting me here today to
represent the Attorney General. With your permission, I will discuss
a few high points in my prepared testimony and go on to answer any
questions you may have.
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:31
Mr. McCLoRY.. If the Chairman would yield, I would also like: to
express a-warm welcome to Mr. Willard, and express apologies that
they turned off the TV cameras just before you came to the micro-
phone. This certainly does not mean that your testimony is not equally
important to that which we have already received.
Mr. MAZZOLI. Thank you very much.
Mr. WILLmm. Thank you, sir.
Mr. MAzzoLI. Mr. Willard, you may proceed.
Mr. WILLARD. I would like to emphasize at the outset that the Jus-
tice Department strongly supports this legislation. The Majority
Leader and Director Casey have el uently spoken of the need for
this legislation to protect the national defense and the very lives of
the individuals involved in our clandestine intelligence services, and
we think it is highly appropriate and necessary to provide additional
criminal penalties for the
Mr. MAzzoLI. Mr. Willard, would you hold for just a minute?
Would you close the door in the back, please? It is impossible to
hear very well. And there is a lot of movement in the audience. There
is a need for us to concentrate and for the witness to concentrate.
Please close the door.
[Pause.]
Mr. MAZZOLI. You may proceed, Mr. Willard.
Mr. WmLARD. Thank you, Mr. Chairman.
As I was saying, we believe it is necessary and appropriate to pro-
vide additional criminal penalties for the unauthorized disclosure of
the identities of covert intelligence agents. This legislation would
demonstrate clearly the Government's concern for the welfare of these
persons, and if carefully drafted, as is H.R. 4, it would enable the
Government to resolve several difficult problems that are encountered
in prosecutions under the espionage laws as they now stand.
I would like to address now the provisions of H.R. 4. The bill would
prohibit the disclosure of information identifying a covert agent
under varying circumstances. The first two categories of this bill have
not been very controversial. These provisions would add substantial
protection against disclosures by current or former Government em-
ployees and contractors who have been authorized to have access to
classified information and the identities of covert agents in the course
of their authorized access. The fact of such access lends an aura of
credibility to disclosures by such persons and may provide them with
a degree of expertise regarding, how identities are concealed and the
means for piercing such concealment measures.
The Department believes that these two sections of the bill are
easily justified and sustainable.
We have one suggestion regarding these provisions. Neither section
now includes a provision that would criminalize attempts to commit
the proscribed actions. Such a provision would specifically authorize
the Government to initiate a prosecution of any person within the
terms of sections 501 (a) or (b) who has taken a substantial step
toward but has not completed the disclosure of the identities of covert
agents. Such action should be deterred and subject to punishment
without forcing the Government to stay its hand until the identities
have been actually disclosed to the public.
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The third section, 501 (c), has cbviously been the source of the most
difficult issues presented by the bill, and the greatest public con-
troversy. This section provides a criminal penalty for any person,
including those who have never had access to classified information,
who disclose information identifying a covert agent, even if it is
obtained from lawfully available public sources.
Now, it has been argued that the principles of the first amendment
are done violence when the Government seeks to punish actions that
are facilitated by information that is available to the public. We do
not believe this argument has any merit. The first amendment is not
the only provision in the Constitution. We are confident that a care-
fully drafted bill such as H.R. 4 is constitutional. Hearings in the last
session of Congress and today's hearing have documented the serious
harm to the national defense caused by actions of the type the statute
is intended to prevent. We believe this serious harm justifies the pro-
posed legislation and the extremely slight burden it imposes on
individuals.
Although we believe section 501 (c) is constitutional and enforce-
able as it is now drafted, we hope the committee will consider several
changes in wording to facilitate prosecuting cases that are likely to
arise. It is our belief that the specific intent requirement stated in
H.R. 4 not once, but twice, will intensify the practical evidentiary
problems that we face in every criminal prosecution. In some situations
a defendant might try to confuse the issue of intent by claiming that
his intent was not to impair legitimate intelligence activities, but to
expose the existence of activities that were believed to be improper
or ill-advised and deserving of public debate.
Of course, we do not believe that the language or legislative history
of H.R. 4 would in fact authorize such a good faith defense. However,
the specific intent requirement could serve to confuse the issues in an
actual prosecution to the point where the Government could be unable
to establish the requisite intent beyond a reasonable doubt.
The Senate counterpart to this bill, S. 391, alleviates these potential
problems by requiring only that a defendant be shown to have had
reason to believe, rather than specific intent, that the disclosure would
impair or impede U.S. intelligence activities. This objective standard
is preferable to the Justice Department since it would assist the pros-
ecutorion in proving its case.
The "reason to believe" standard has been found by the courts to
he valid and has survived constitutionally based charges of over-
brnsdth and vagueness.
Mr. Chairman, it is our belief that with these changes this bill will
clearly strike a proper balance among the various competing interests.
Legislation of this nature is critical to the morale and confidence of
our intelligence officers and their sources. The Justice Department
strongly recommends that it be reported out of this committee with a
favorable recommendation for enactment by Congress.
I would be happy to address any questions you may have at this
time.
Mr. MAZZOLI. Thank you very much, Mr. Willard.
I yield myself 5 minutes to make some inquiries.
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One is, as a representative from the Justice Department, are you
prepared to state whether the new Attorney General and the continu-
ing Director of the FBI feel that the FBI should be included in the
coverage of a bill $
Mr. WILLARD. Yes, sir. We feel that FBI agents involved in foreign
intelligence or counterintelligence activities should continue to be
covered under the terms of H.R. 4.
Mr. MAzzoLI. That would be both for the FBI1 as we call them,
agents, who would be the FBI employee, as well as their assets, that
is, their contacts in the specific areas of foreign counterterrorism and
foreign counterintelligence, is that correct ?
Mr. WILLARD. Yes, Mr. Chairman.
Mr. MAZZOLI. Thank you.
Mr. Willard, let me ask you, as an expert in this area, do you believe
that the current laws on the books, espionage laws, are adequate to
deal with the problem that we have had outlined to us today and that
we have had presented to us for the last several years?
Mr. WILLARD. Mr. Chairman, the Justice Department has tradi-
tionally believed that certain of these activities could be prosecuted
under the present statutes. However, we think that a bill such as H.R.
4 would materially assist a prosecution by eliminating several practi-
cal problems that arise in these sorts of cases.
Mr. MAZZOLI. I understand.
You say that you would prefer that the bill include attempts.
Does the Senate bill include attempts, and if not, do you have any
language or would be able to submit language to us that you think
would cover the problem of efforts which are not availing!
Mr. WILLARD. Yes, Mr. Chairman. We would be happy to submit
language to the committee for your consideration. I do not beileve the
Senate bill now includes such provisions.
Mr. MAZZOLI. You were here, sir, when the questions were raised by
the gentleman from Ohio and our chairman on false identification.
Have you had a chance to examine that issue, and would you feel
prepared to address it today as to whether the bill or any bill should
include some factor or should it be silent as to false identification?
Mr. WILLARD. Mr. Chairman, we feel that a provision of this nature
would be constitutional and enforceable, and would certainly allow
for prosecution under circumstances that would not be covered by
H.R. 4 as it is now drafted. As I understand it, such a provision
would make it unlawful to disclose, whether falsely or truthfully,
the identity of an agent under circumstances that would place that
person's life in danger. We think that is within the time-honored
traditions of criminal law, and if the committee saw fit to include
such a provision, we think it would cause no problem, either from the
standpoint of enforcement or constitutionality.
Mr. MAzzoLI. As you said, we have limited most of the discussion
here to 501(c) because it is only in those categories that we really
have a great deal of dispute, the first two categories being breaches of
trust. It is only in the latter category that there are problems.
Do you believe that the standard which you would advance, which
is the reason to believe that danger or harm would ensure from a
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divulgence of these names, is the kind which would survive constitu-
tional scrutiny and examination?
Mr. WILLARD. Yes; Mr. Chairman. I would point out that the Sen-
ate version of this provision includes many elements, as does the
House version, in addition to the question of a reason to believe or
intent to impair or impede intelligence activities. We believe that,
because of the multiple elements of an offense as stated in either ver-
sion, such legislation would pass muster in terms of both due process
and first amendment constitutionality.
Mr. MAZZOLr. Thank you. I appreciate it.
My time has expired.
The gentleman from Illinois is recognized for 5 minutes.
Mr. MOCLORY. Thank you, Mr. Chairman.
I appreciate your comments with regard to attempts or unfulfilled
efforts to disclose the identities of agents which might occur and
which are not covered in this legislation.
Would that be an. activity such as that of a person employed in the
CIA who might funnel out information which he or she might have
expected would be exposed, but it never ultimately was exposed, and
there was no publication to identify the agent? Would that be the
type of attempt that you would have in mind?
Mr. WILLARD. Yes, sir, that would be one category. Another example
would be an agent who calls a press conference and announces that
he is going to disclose 25 secret agent identities. If the elements of
attempt were satisfied, he could be prosecuted without having to sit
back and wait for the actual disclosure of the names as would be
required to complete the actual offense now described in the bill.
Mr. MCCLORY. Now, you were aware of, and I think you pointed
out the differences between, the Senate and the House bill. You may
have heard my earlier questions with respect to the Senate bill in that
it might involve the graymail problems to a greater extent and thus
possibly impede prosecutions where it was decided that the prosecu-
tion just doesn't care to comply with the request of such a defendant
,to reveal classified information, even to the court in camera.
Do you feel that that is a serious disability as far as prosecution
of a case under the identities of agents bill, or do you think that is
easy to get around?
Mr. WILLARD. Mr. McClory, we feel that situation has been sub-
stantially improved by the passage in the last Congress of the Classi-
fied Information Procedures Act. We think that statute will be very
helpful in alleviating some of these problems.
I have compared the two versions of the identities bill to determine
which would present a greater graymail problem, and it seems to me
to be a matter of opinion at this point. The prosecutors in the Criminal
Division with whom I have discussed this question believe problems
could arise in either case and that, as a practical matter, a defendant
in a prosecution will seek to expose classified information as a defense
tactic whenever such a tactic benefits the defense.
Mr. MCCLORY. It has been suggested that we might include both
tests so that the person would be guilty under the act if he or she had
reason to believe, or if he or she intended to impede or impair our
intelligence activities.
Do you have any view on including both alternative tests in the
legislation?
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Mr. WILLARD. We would have no problem with that approach. I
would mention that many criminal statutes have alternative tests of
mens rea, and it would certainly be appropriate for this committee
to consider including the two standards. Of course it is difficult to
predict which standard would turn out to be the best one in a particu-
lar prosecution. We can envision circumstances where one would be
better, and circumstances where the other would be. But including
both standards would be helpful.
Mr. MCCLORY. It is my understanding from your statement to the
chairman that you will furnish the committee or the committee staff
with suggested amendments that you think would meet the rather
relatively detailed objections or questions that you have raised with
regard to this legislation.
Mr. WILLARD. Yes, sir, we will do that.
Mr. MCCLORY. Thank you, Mr. Chairman.
Mr. MAzz0LI. Thank you. The gentleman's time has expired.
The gentleman from Georgia, Mr. Fowler.
Mr. FOWLER. I thank the gentleman.
Mr. Willard, is my understanding-do I glean from your testimony
that you prefer the Senate language as a substitute for our 501 (c) ?
Mr. WILLARD. Yes, Mr. Fowler, we have some preference for that
version.
Mr. FOWLER. Have you also looked at the proposed, what is called-
the so-called proposed Kennedy compromise language?
Mr. WILLARD. I know that it exists, but I don't have it in front of
me and have not studied it carefully.
Mr. FOWLER. Would you take a look at that and give us in writing
as soon as practical your opinion of that as sort of a third alternative
to it? I would appreciate that.
Mr. WILLARD. Yes, sir, we will do that.
[The information referred to follows:]
U.S. DEPARTMENT OF JUSTICE,
OFFICE OF INTELLIGENCE POLICY AND REVIEW,
Chairman, Subcommittee on Legislation, Permanent Select Committee on In-
telligence, House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN : When I testified before the Subcommittee on April 7, 1981
concerning H.R. 4, I was asked to provide further information in response to
various questions raised by you and other members of the Subcommittee. This
letter contains my responses on behalf of the Department. The references are to
the relevant pages of the transcript, which I also have corrected and enclose for
your use.
1. (PAGES 66, 70, 81-82)
You and Congressman McClory requested that I provide the Subcommittee wits.
proposed amendments to H.R. 4 that would accomplish the changes I suggested
in my testimony. These included : (a) replacing the specific intent standard in
section 501(c) with an objective intent standard; (b) adding an attempt pro-
vision to sections 501 (a) and (b) ; and (c) Including a definition of "foreign
intelligence activities" in the legislative history pertaining to section 501(c).
(a) Intent standard
The first suggestion could be accomplished by adopting language similar to
that in section 601(c) of S. 391 (97th Congress). Section 501 (c) would then
provide as follows :
Whoever, in the course of an effort intended to identify and expose covert
agents and with reason to believe that such activities would impair or impede
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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 disclosed so
identifies such individual and that the United States is taking affirmative meas-
ures 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. (Modified language in italic.)
This revision would permit prosecution of an individual who discloses infor-
mation with knowledge that it identifies a covert agent, while engaging in an
effort intended to disclose such identities, when all the surrounding facts and cir-
cumstances would lead any reasonable person to believe that such activities
would impair or impede the foreign intelligence activities of the United States.
This section also requires that an individual specifically intend to engage in
an effort to identify and expose the identities of covert agents with knowledge
that the identities are classified and being protected by the U.S. Government.
The "reason to believe" standard would permit prosecution of an individual
who can be shown either to have known of and disregarded the risk of harm or
to have been negligent in overlooking the evident consequences of his actions
for U.S. foreign intelligence activities. In view of the specific intent and knowl-
edge elements contained elsewhere in section 501(c), we believe this objective
intent standard would be sustained by the courts and would permit a more
effective prosecution of the type of harmful disclosures that concern this
Committee.
(b) Attempt provision
An attempt provision can be added to sections 501 (a) and (b) by simply
inserting the phrase "or attempts to disclose" after the term "discloses" in both
sections. A lesser penalty for attempts can be included by inserting the phrase
"and for an attempt, shall be fined not more than $15,000 or imprisoned not
more than three years or both" at the end of each section.
At the April 7 hearing, the suggestion that an "attempt" provision be added to
sections 501 (a) and (b) was questioned by several members of the Subcommittee.
Specifically, Congressmen McClory and Fowler requested that we study this
matter further and provide examples of situations in which an attempt provi-
sion would apply. It should be remembered that we have suggested adding an
"attempt" provision only to the two sections involving government employees or
contractors who have occupied positions of special trust and who have been
provided access to classified information in the course of their official duties. The
mere fortuity that a disclosure by these persons in somehow aborted does not,
to my mind, eliminate their culpability. Of course, the criminal law of attempts
punishes only a person who has taken a substantial step toward commission of
the crime and whose activities reflect an intent to carry out the proscribed
action.
The type of conduct required to prove an attempted disclosure will vary with
the circumstances of a particular case. Certainly, where an employee having
access to classified information that identifies a covert agent mails or delivers a
list of covert agents to a person believed to be an unauthorized person, and that
person turns out to be an undercover agent of the U.S. Government, a jury could
conclude that a substantial step toward fulfillment of the crime had been under-
taken by the defendant. Also, such a substantial step could be evidenced by the
convening of a press conference with the stated purpose of disclosing covert
agents' identities. In this case, a jury would be required to consider all the
circumstances surrounding the defendant's action (e.g., Did he have a written
list at the podium? Had he told other "authorized" persons the substance of his
planned remarks?) to determine if his actions sufficiently evidenced a design
unlawfully to disclose the classified identities of covert agents.
Attempt provisions are by no means uncommon in the criminal code. Signifi-
cantly, the two espionage statute provisions which the Department of Justice
contends apply to the unauthorized disclosure of covert agents' identities, 18
U.S.C. ? 793 (d) and (e) contain attempt provisions. See also 18 U.S.C. ? 794
(gathering or delivering defense information to aid a foreign government) ; Pro-
posed Criminal Code, S. 1722, 96th Cong., 1st Sess., ? 1001 (1980) (setting forth
a general criminal attempt provision). Such provisions also are contained in
numerous other criminal statutes. E.g., 18 U.S.C. ?? 32 (destruction of aircraft or
aircraft facilities), 33 (destruction of motor vehicles or motor vehicle facilities),
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224 (bribery in sporting contests), 231(a) (8) (civil disorders),'245(b) (inter-
ference with federally protected activities). We believe an attempt provision
is justified for inclusion in sections 501 (a) and (b) and would be sustained by
the courts in proper cases.
(c) Definition of foreign intelligence activities
The third suggestion was to include in the legislative history pertaining to
section 501(e) a definition or description of the term "foreign intelligence activi-
ties". The following language would satisfy our concern :
The term "foreign intelligence activities" as used in 1601(c) of the bill is
intended to include the collection of foreign intelligence, foreign counterintelli-
gence, and foreign activities (covert action) ; and support for these activities.
However, activities conducted solely for civil or criminal law enforcement pur-
poses within the United States are not included.
If the Subcommittee deems it necessary or advisable, additional language
concerning the meaning of the terms "foreign intelligence," "counterintelligence,"
and "special activity" could be added modeled upon the definitions now in Ex-
ecutive Order 12036. We see no compelling need to do this, however, and not
doing so would provide additional flexibility as the meaning of these terms
may shift slightly over time.
II. (PAGES 72-78, 74)
Congressmen McClory and Fowler inquired whether there was a real need to
include protection for FBI agents, sources and informants and whether an
FBI covert agent had been identified in the recent past in connection with a
disclosure in Chicago. According to the FBI, the identity of an FBI double
agent who had been involved in an investigation of the activities of the Polish
Intelligence Service in the Chicago area was disclosed when a sealed court
record in a Freedom of Information Act case on appeal to the Seventh Circuit
was leaked. However, the FBI has been unable to discover who leaked the
court records or for what reason.
As you requested during the hearing, I have asked Director Webster to com-
municate directly to this Subcommittee the views of the FBI concerning whether
this legislation should continue to include the Bureau.
M. (PAGE 71)
Congressman Fowler requested the Department's opinion of the so-called
"Kennedy compromise" to replace the current section 501(c). That proposal
states :
"(c) Whoever, in the course of a pattern of activities undertaken for the pur-
pose of uncovering the identities of covert agents and exposing such identities
(1) in order to impair or impede the effectiveness of covert agents or the activi-
ties in which they are engaged by the fact of such uncovering and exposure,
or (2) with reckless disregard for the safety of covert agents discloses any
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 rela-
tionship to the United States, shall be fined not more than $15,000 or imprisoned
not more than three years, or both."
Subsection (c) (1) of this proposal would criminalize the disclosure of a
covert agent's identity only if done in the course of a pattern of activities under-
taken for the specific and deliberate purpose of compromising particular covert
agents or their operations in a foreign country. Especially in conjunction with
the proposed legislative history for this subsection, this constitutes a specific
intent standard that could be interpreted very narrowly. 126 Cong. Rec. 513,839
(daily ed. Sept. 30, 1980). For example, it would not penalize a person who
willfully engages in a pattern of activities to disclose covert identities and
knows that the exposed agents and their operations will be rendered ineffective
by his disclosure, so long as his underlying purpose is to stimulate congressional
or public review of their activities. The damage to the U.S. and the potential
harm to those identified under such circumstances is still significant, however.
Moreover, the Kennedy language would invite potential defendants to assert
an "underlying purpose" of reforming U.S. policy in every case and thus frus-
trate enforcement of the statute.
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As I testified at the Subcommittee hearing, we believe an objective intent
standard, rather than a specific Intent standard, is preferable to facilitate prose-
cutions of the harmful disclosures Identified by this Subcommittee. The Kennedy
compromise, especially with its descriptive legislative history, unacceptably nar-
rows the scope of persons subject to prosecution and provides a potential safe
haven for those who engage in these activities.
We have much less difficulty with subsection (c) (2) of the Kennedy com-
promise, although we believe it does not go far enough. It would permit prosecu-
tion of individuals who engage In a pattern of activities to expose covert agents
and makes such disclosures with reckless disregard for their safety. This sub-
section is not, however, sufficiently broad in that it would not apply to dis-
closures by persons who should reasonably have foreseen that their disclosures
would lead to harm for either the covert agents or the intelligence operations in
which they are involved. As stated earlier, we believe that a "reason to believe"
standard is more appropriate to be included in this legislation.
I trust this additional information will be useful to the Subcommittee as it
deliberates further the provisions of H.R. 4.
Very truly yours,
RICHARD K. WILLARD,
Counsel for Intelligence Policy,
Office of Intelligence Policy and Review.
U.S. DEPARTMENT OF JUSTICE,
FEDERAL BUREAU OF INVESTIGATION,
OFFICE OF THE DIRECTOR,
Washington, D.C., May 8, 1981.
Hon. ROMANO L. MAZZOLI,
Chairman, Legislation Subcommittee,
Permanent Select Committee on Intelligence,
Rouse of Representatives,
Washington, D.C.
DEAR CHAIRMAN MAZZOLI. I am writing In response to your request for the
views of the FBI on H.R. 4, the Intelligence Identities Protection Act, which
was made during the testimony of Richard K. Willard, Counsel for Intelligence
Policy, U.S. Department of Justice, at the time of his recent appearance before
the House Permanent Select Committe on Intelligence.
It is my opinion that there are compelling arguments for the continued in-
clusion in the bill of provisions affording protection to FBI agents and assets
who are acting covertly for the Government in foreign counterintelligence and
international terrorism matters. In my view, this legislation seeks to address
two separate problems which result from the disclosure of the identity of a
covert intelligence agent : physical harm to the individual exposed and disrup-
tion of Intelligence activities attendant to such a disclosure.
With respect to the potential for physical harm to exposed covert agents and
assets, some have argued that within the United States the ability to protect
an individual is greater than abroad. I agree that this is likely the case, but the
argument fails to note that our covert intelligence personnel do operate abroad
as the occasion demands and some of those who do not are working on our be-
half within violence-prone groups, particularly in the international terrorist
field. The potential for harm while perhaps diminished within the United States
is not by any means eliminated and I believe covert intelligence personnel acting
on behalf of any intelligence agency of the United States deserve the protection
afforded by this legislation regardless of the locale of their activities.
Often overlooked in the discussions of this proposal is the damage to the sensi-
tive intelligence operations of our Government which would result from any
exposure of covert intelligence personnel. There is no doubt that current intelli-
gence activities would be jeopardized and it is also true that through detailed
analysis foreign intelligence services would also be able to assess our past covert
operations where they involved the exposed agent or asset. This possibility pre-
sents, in my view, a great threat to the continued success of U.S. intelligence
activities.
I urge the Committee's favorable consideration of this proposed legislation.
Sincerely yours,
WILLIAM H. WEBSTER, Director.
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Mr. FOWLER. I know you have had to cover a lot of ground in a hurry
in your new responsibilities. You may not know the answer to this, but
I am sure one of you-I don't know of any, in my 4 or 5 years on the
committee, but do you know whether or not there has ever been a correct
identification of an FBI agent or informant under circumstances that
would be covered by this bill ?
Mr. WILLARD. We are not aware that there has been such an identi-
fication in the recent past.
Mr. FOWLER. Well, if that is true, should we cloud the debate on
this particular measure, which is designed primarily in response to a
real threat against CIA officers, by including the FBI 1
Mr. WILLAxn. Well, the fact that someone has not successfully ex-
posed an FBI agent does not mean that there is no threat that this
could occur. We know, for example, that people have used the Freedom
of Information Act to try to determine FBI informants' identities in
a law enforcement context.
Mr. MCCLORY. Would the gentleman yield for this observation 4
Mr. FOWLER. I would be delighted to yield.
Mr. WILLARD. Well, we think that FBI cover arrangements have been
identified in connection with some disclosures in Chicago. The name
of our colleague Mr. Rostenkowski was involved in that expose or that
investigation of Polish subversive activities in the Chicago area. And
I just suggest that we might check on that to see whether or not there
isn't such a case.
Mr. WILLARw. We will be happy to look into that situation.
Mr. FOWLER. Let me ask it in another way.
In regard to section 501(c), in your opinion, that of the Justice De-
partment, is it even possible to correctly identify an FBI agent from
available sources?
Mr. WILLARD. Well, we think that FBI cover arrangements have been
effective in the past and hope they will continue to be in the future.
It may well be that penetrating those arrangements is not possible
presently. We do think, though, that FBI covert agents are involved
in activities that are often dangerous and that they deserve to have
the protection of this kind of legislation. Thus, we believe they should
be covered when engaged in intelligence or counterterrorism activities.
Mr. FowER. Well, I just want to be careful that we don't obscure-
I would appreciate your closely looking into that question, Mr. Wil-
lard, because I want to make sure that we target the need.
Mr. MAZZOLI. Would the gentleman yield Y
Mr. FowLER. In the words of the country, you know, if the clock ain't
broken, I ain't sure we ought to fix it.
Mr. MAZZOLI. If the gentleman would yield.
Mr. FOWLER. I yield to my chairman.
Mr. MAzzori. I think he is exactly right.
Perhaps, Mr. Willard, you could convey a message to Judge Webster
from us that perhaps it would be-if there were a letter or some state-
ment that could be prepared to the point which would in a sense re-
fresh what he has already said last year of the need for the FBI cover-
age, it would be useful as we are trying to bring our information again
up to date and to make it completely timely.
Mr. WILLARD. Yes, Mr. Chairman, we will be happy to respond to
that request.
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Mr. MAzzou. Thank you.
Mr. FOWLER. Again, I got you-I was following along on your state-
ment, listening very carefully, but the Xerox machine broke down and
I didn't have page 7. So let me ask you to again help get my thinking
right on what you are proposing.
You are proposing language which would include attempts to reveal
the names of agents, or taking, I think you said, a substantial step
toward.
Is that correct, and would you elaborate on that a bit? How do we
prove that?
Mr. WILLARD. Well, what we proposed was to include an attempts
provision for 501 (a) and 501 (b), not 501(c). As we understand, 501
(a) and (b) are not particularly controversial. We don't propose com-
plicating 501(c) by proposing an attempt provision for that section.
Mr. FOWLER. Well, would that not make 501 (a) and (b) very con-
troversial if you had to prove what a substantial step toward meant?
I mean, is the call of a press conference, to use the example you gave,
the call or the setting of a press conference, is that a substantial step
toward revelation, in your opinion, to use your example?
Mr. WILLARD. I believe it would be. However, you would also have to
have proof of specific intent to commit the crime under an attempt
provision. We now have attempts provisions for most criminal laws,
and since 501 (a) and (b) are viewed as being noncontroversial
criminal statutes, we see no reason why adding an attempt provision
would make them any more controversial.
Mr. FOWLER. You see no reason under criminal law that adding an
attempt codicile to 501 (a) and (b) would in any way jeopardize their
constitutionality. Is that what you are saying?
Mr. WILLARD. No, sir, we do not.
Mr. FOWLER. That's all I have for the moment.
Mr. MAzzoLi. The gentleman's time has expired.
The gentleman from Massachusetts.
Mr. BOLAND. Mr. Willard, I appreciate your statement. I think it is
a fine statement of position on the part of the Department of Justice.
Let me ask just a couple of questions.
In Gorin v. United States, though the espionage statute involved did
contain a standard of intent or reason to believe, the Supreme Court
stated, "This requires those prosecuted to have acted in bad faith."
Is the bad faith requirement satisfied' one acts with a reason to be-
lieve that foreign intelligence activities.vvill be impeded or impaired,
but with the intention of exposing wrongdoing?
Mr. WILLARD. Yes, Mr. Chairman, I believe it would be satisfied.
Gorin involved statutory construction. The legislation now under con-
sideration by this committee is different legislation with a different
legislative history and purpose, and the test enunciated in Gorin would
not necessarily be applied by the courts in interpreting this legislation.
Mr. BOLAND. You used the phrase in your statement-and I have
seen it in many other statements, it has been bandied about-the first
amendment is not absolute.
What are you saying?
Mr. WILLARD. What we are saying is that the interest of the country
in its defense is also constitutionally-based and can be considered in
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determining whether or not the first amendment is violated. To say
that this legislation would have some effect on speech, which it obvi-
ously does, does not answer the question of whether or not it is consti-
tutional.
Mr. BOLAND. And I asked the question of Mr. Silver, and he deferred
to you, with respect to the elements of proof that would be required in
a prosecution under subsection 501(c), and the six elements of proof
are detailed, they have been detailed often for the record, and they are
detailed in Mr. Casey's statement, would those elements of proof be
required in the Senate bill, too 1
Mr. WiLLamn. Yes, Mr. Chairman. The only major difference is that
the Senate bill uses the reason to believe standard while the House bill
relies upon a specific intent standard.
I might say that what the Senate bill does is to take the two specific
intent requirements of the House bill and replace them with one spe-
cific intent requirement and one reason to believe requirement. In that
sense the bills are very similar, and their real differences are reduced
to only one of the state of mind elements.
Mr. BOLAND. Is the bottom line that it would be easier to prosecute
under the Senate bill, and the evidentiary proof would be less under
the Senate bill than it would be under the House bill?
Mr. WILLARW. That, Mr. Chairman, is our judgment as to most
cases. We certainly recognize that in a particular situation it might
be easier to prosecute under the House bill. We have talked with our
prosecutors and, based on their advice, concluded that on balance it
would be easier to prosecute under the Senate bill.
Mr. BOLAND. As you know, there is a considerable split of opinion
over whether or not 501(c) is constitutional.. There are some distin-
guished, very distinguished constitutional lawyers who say that it is.
There are others who say that it is not. I guess probably the final forum
would be the Supreme Court, if this bill is passed, to determine the
constitutionality. I am sure that it would be raised and would come
to that particular point in time, too, wouldn't you think so?
Mr. Wi.LAxn. I agree, Mr. Chairman. There is a good chance that
this bill might end up in the Supreme Court. I might add that I feel
confident that either version would be sustained by the Supreme Court
if tested on constitutional grounds.
Mr. BOLAND. Thank you, very much.
Mr. MAZZOLI. Thank you very much, Mr. Chairman.
Mr. FOWLER. Could I continue for a moment g
Mr. MAzzou. Certainly.
Mr. FOWLER. Mr. Willard, again we have got to go back-you know,
we did all this last year, so you have introduced a whole new element
for me that I-I am back here reading, which is dangerous I know,
section 501 (a) and (b) and trying to conceptualize what you are rec-
ommending about this attempt to disclose.
Now, I can conceptualize as an old two-bit lawyer, an attempt to
commit murder, an attempt to commit rape, but I am having trouble
conceptualizing an attempt to make a revelation, an attempt to speak.
You lmow, until somebody speaks, we don't know what they are
going to say, and in both section (a) and (b), we have-those are
the sections, as you well know, these are people that have had access
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to classified information, so we are assuming that they are one of
us, No. 1. Second, we have got not only the attempt to disclose
but intentionally disclosing. I think there are two different stand-
ards in there that are needed to protect, and I just can't figure
out how in the world we would ever prove on the basis of your
example or many others how we would show an attempt to reveal,
or substantial step toward a revelation under 501(a).
Mr. WILLARD. Well, I think the example Mr. McClory gave might
illustrate the most realistic possibility. I can foresee a situation wnere
our counterintelligence officers were able to detect a forthcoming dis-
closure by a renegade agent and intercept it. Now, those counter-
intelligence officers might well be authorized to receive classified infor-
mation. Thus, if the renegade agent gave someone who was actually
one of our counterintelligence officers a list of names, that would not
be a violation of the bill as it is now drafted because the recipient
would in fact be authorized to receive the information. But the rene-
gade agent would have intended fully to disclose those names. It
would have been only good counterintelligence work that prevented
the crime of disclosure from being completed under the terms of the
statute.
Mr. FOWLER. Now, wait a minute. But that is not an attempt to
disclose to one not authorized to receive it, is it?
Mr. WILLARD. I think that is the type of situation where an attempt
provision could be useful. Otherwise it would not be a violation of
the statute.
Mr. FOWLER. Well, I don't think-what I would like for you to do,
what I would like to ask you to do is simply to look at that again, if
that is what you are asking us to do.
Mr. MCCLoRY. Would the gentleman yield?
Mr. FowLER. I will in just a second, Bob, thank you.
And especially, again, we are in this area of speech. The chairman
has raised some of those questions. I just want to make sure that we
are clear on what we are trying to protect, No. 1, before we legislate,
and second, that we are not buying far more problems in a worthy
attempt to cover every possibility, but by doing, to cloud the real
problems that have arisen.
Mr. WILLARD. Well, I agree, Mr. Fowler. I think that the bill, as it
is presently drafted, is a good one, and the Justice Department does
not want to do anything to endanger its speedy passage, and I think
that is a judgment your committee will have to make.
Mr. FOWLER. Well, just check for some hidden torpedoes in your
proposal. We look forward to hearing from you.
Mr. MAzzoLi. Bob, 5 minutes.
Mr. FOWLER. I yield.
Mr. MCCLORY. Well, thank you.
I think you make an important suggestion or contribution to this
legislation by suggesting that perhaps an unfulfilled public identifica-
tion of an agent operating under cover should nevertheless be covered
by the statute, just as you have indicated that with regard to other
types of criminal activity, that the attempt to commit such activity
is generally covered as well.
Iam thinking now, for instance-and I don't know what the CIA
has in its most secret vaults, but if there is a document there which
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would contain the names and identities and addresses of every agent
who is operating under cover, including perhaps foreign nationals who
are extremely important to our national security interests, or if there
is possibly the information in an encrypted form, which would be use-
ful if purloined and marketed or disclosed abroad if the attempt was
fulfilled by resulting in the identification of agents operating under
cover, it would seem to me that those kinds of activities, which I assume
we have to anticipate in connection with this legislation, should be
covered.
Are those possible actions which could occur?
Mr. WILLARD. Yes; Mr. McClory, and I appreciate your suggestions.
Obviously the members of this committee have lived with this legisla-
tion a lot longer than I have. Last year I was in private practice and
you were conducting hearings on this bill. I think you probably are
in abetter position to come up with examples of this kind than I am.
But as I told Mr. Fowler, we will look into this matter further and
will try to provide the committee with more information in support
of our suggestion.
Mr. MCCLORY. I assume that what we are talking about really only
relates to section 501 (a) and 501(b) essentially.
Mr. WILLARD. Yes, sir.
Mr. MCCLORY. And it would also then, of course, require a more
modest penalty for attempts to commit crimes under 501 (a) or 501(b)
than the penalties that are there for the full commission of the act.
Mr. WmLaw. I think that would be appropriate.
Mr. MCCLORY. Thank you.
Mr. MAZZOLI. The gentleman's time has expired.
Mr. Chairman.
Mr. Willard, thank you very much for your help today.
Of course, you have already received certain requests for informa-
tion. Because of the need to move this along, we yould appreciate your
handling those requests as speedily as you can.
Mr. WILLARD. Yes, Mr. Chairman, we will.
Mr. MAZZOLI. Thank you very much.
The subcommittee will meet again tomorrow morning at 9 o'clock.
Thank you.
The committee stands adjourned.
[Whereupon, at 3:12 p.m., the subcommittee recessed, to reconvene at
9 o'clock a.m., Wednesday, April 8,1981.]
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H.R. 4, THE INTELLIGENCE IDENTITIES PROTECTION
ACT
WEDNESDAY, APRIL 8, 1981
U.S. HOUSE OF REPRESENTATIVES,
PERMANENT SELECT COMMITTEE ON INTELLIGENCE,
SUBCOMMITTEE ON LEGISLATION,
Washington, D.C.
The subcommittee met, pursuant to notice, at 9:01 a.m., in room
H-405, the Capitol, Hon. Romano Mazzoli, chairman of the subcom-
mittee, presiding.
Present: Representatives Mazzoli (presiding), Fowler, Hamilton,
Boland (chairman of the committee), McClory, and Robinson.
Also present : Thomas K. Latimer, staff directors; Michael J. O'Neil,
chief counsel; and Bernard Raimo, Jr., and Ira H. Goldman, counsel;
Herbert Romerstein, professional staff member; and Louise Dreuth,
secretary.
Mr. MAzzobI. The subcommittee will come to order.
This morning the Subcommittee on Legislation resumes its hearings
on H.R. 4, the Intelligence Identities Protection Act.
Our first witness this morning is John Warner, former General
Counsel of the Central Intelligence Agency. Mr. Warner is now en-
gaged in the private practice of law. He appears before us, as he has
frequently in the past, as Counsel to the Association of Former Intelli-
gence Officers.
We are now delighted to welcome him, and Mr. Warner is accom-
panied this morning by Mr. John Greaney, formerly the Associate
General Counsel at CIA, and now the Executive Director of the Asso-
ciation of Former Intelligence Officers.
Mr. Warner and Mr. Greaney, we welcome you.
Your statements will be made a part of the record, and you may talk
from them or however you wish to proceed.
[The prepared statement of Mr. John S. Warner follows:]
STATEMENT OF JOHN S. WARNER, ESQ., LEGAL ADVISOR TO THE
ASSOCIATION OF FORMER INTELLIGENCE OFFICERS AND FOR-
MER GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY,
ACCOMPANIED BY JOHN K. GREANEY, EXECUTIVE DIRECTOR,
ASSOCIATION OF FORMER INTELLIGENCE OFFICERS
Mr. WARNER. Thank you, Mr. Chairman.
No. 1, we do appreciate the opportunity of being here. Mr. Maury,
our.president, is out of town. He hopes to join us in a few minutes. But
again, we do appreciate the opportunity to speak to this legislation
because we regard it as very important.
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I will not read the statement. It will be in the record. I would like to
summarize a few of the points in it which I feel need highlighting.
Since your committee first initiated this legislation well over 2 years
ago, we have watched it very carefully and worked with your staff and
testified to it. We testified on January 30, 1980, and I will not repeat
that testimony, but would like to have it included in the record, and I
offer a copy here.
Mr. MAzzoLI. Without objection, that statement will be made a part
of the record.
Mr. WAxxza. Thank you, sir.
[The information referred to follows:]
STATEMENT OF JOHN F. BLASE, PRESIDENT, AssOCIATION OF
FORMER INTELLIGENCE OFFICERS
Mr. Chairman and Members of the Committee. I wish to thank you for re-
questing me to appear before this Committee on behalf of the Association of
Former Intelligence Officers (AFIO) to give our views on HR 5615, the "In-
telligence Identities Protection Act." I note that this bill is sponsored by all of
the members of the House Permanent Select Committee on Intelligence.
We in AFIO fully support this bill and urge early Committee action looking
toward enactment into law. The need for this legislation is clear and com-
pelling-it is appalling that the names of confidential employees, agents and
informants of our intelligence services can be spread about or published with
impunity. There must be a law to deter those who would disclose those identities.
Not only is the safety and well-being of such employees and agents put in
jeopardy but there is significant harm to on-going intelligence activities.
In the aftermath of excessive charges and the many ill-founded allegations of
the mid-70's, this legislation is a concrete step to enhance the effectiveness of
intelligence. Against the back-drop of world events, positive action will be seen
as well-timed. Furthermore, the men and women engaged in intelligence activities
will see this as a positive effort to protect them in their daily work and the
resulting boost in morale will be immeasurable.
Many times, legislative objectives are shared, but the proposals when drafted
caused difficulties. We recognize the considerable effort and care which have
gone into the specific wording of H.R. 5615. We wish to express our appreciation
to the Subcommittee on Legislation. Mr. Murphy, which sent to AFIO in March
of last year preliminary drafts dealing with the subject matter of H.R. 5615 and
requested our critical appraisal. Prior to forwarding our written comments,
AFIO representatives met with your staff for candid discussions. We believe
these efforts were worthwhile and produced an excellent result.
The problem, Mr. Chairman, addressed by your Committee today is both very
real and very current. I should like to call your Committee's attention to the
most recent edition of "Covert Action Information Bulletin". Dec. 1979-Jan.
1980. This Bulletin is published by Covert Action Publications, a District of
Columbia non-profit organization. Its Board of Advisors is listed on Page 2,
and prominent among those mentioned is Mr. Philip Agee. A regular feature
of this Bulletin is a section entitled "Naming Names and Sources and Methods".
In this particular most recent issue, three pages are devoted to names. The
Introduction to the names says. in part :
"As a service to our readers, and to progressive people around the world, we
will continue to expose high-ranking CIA officials whenever and wherever we
find them."
In this particular issue, sixteen names are mentioned. I will not address myself
to the accuracy of the identifications because to do so would only give aid and
comfort to the enemy. The potential harm to the individual and his family stands
the same, whether the identification is correct or not. The impediment to the work
of the Government, let alone the potential damage to the individual and his
family, screams forth if the identifications are correct.
I would also call your attention, Mr. Chairman, to the latest edition of "Counter
Spy" magazine. This masterpiece of journalism ceased publication for a period
but now has resumed. In its current issue, under the title of "U.S. Intelligence" It
lists the names of 34 individuals resident in five different foreign countries as
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U.S. intelligence operatives. Everything I said previously about names in the
"Covert Action Information Bulletin" applies with equal force to the situation
here. In the two issues of these magazines alone you have fifty potential examples
of U.S. Government employees who today are bereft of protection from their
Government. Swift passage of H.R. 5615 would remedy this egregious wrong.
In conclusion, Mr. Chairman, I would merely state that the membership of the
Association of Former Intelligence Officers is grateful to this Committee for its
collective sponsorship of legislation so necessary to protect the best interests of
this country and to protect the welfare of those who in circumstances that can be
both trying and dangerous, labor in the best interests of the Republic. We hope the
enlightened leadership shown here by the Congress will also be followed in mat-
ters pertaining to the protection of sources and methods, modifications to the
Hughes-Ryan Amendment of the Foreign Assistance Act of 1974, and more reason-
able treatment of sensitive information under the Amendments to the Freedom of
Information Act.
STATEMENT OF JOHN S. WARNER, LEGAL ADVISOR, AssOCIATION OF FORMER INTELLI-
GENCE OFFICERS AND FORMER GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY
Mr. Chairman and Members of the Committee, I wish to thank you for the oppor-
tunity to testify today on H.R. 4, the Intelligence Identities Protection Act. Since
your Committee first initiated consideration of this type of legislation over two
years ago, the Association of Former Intelligence Officers has watched the devel-
opment of the precise language culminating in the bill reported last year.
AFIO testified on that bill on January 30, 1980, supporting it and demonstrating
the need for such legislation to improve the effectiveness of our intelligence
effort. That testimony is equally valid today and I shall not repeat it here ; it is
already in the record, but we do urge that the need is still there. No one who has
gained information concerning names of protected identities, or the techniques
or knowledge to ascertain such names by virtue of employment with the U.S.
Government should be permitted to publish with impunity those names. Those who
would so publish with intent to impair or impede the foreign intelligence activi-
ties of the United States should also be brought within the prohibition of law.
We support H.A. 4 as written and urge early enactment. While there is legiti-
mate room for discussion about the precise wording, this version was hammered
out after most careful consideration. As to Sec. 501(c) there are some who prefer
the Senate wording in S. 391. It may well be that if a conference results there
could be word changes-but within the framework of the two versions, I am hope-
ful that this year effective legislation will emerge.
It has been asserted in the past, and doubtless you will hear it again, that this
section is "flatly and facially unconstitutional." But this is an assertion only, and
not supported by any directly relevant case law. Supporters of this view include
those who also assert that the first amendment is an absolute-and we all know
it is not. The Supreme Court of the United States has repeatedly held that under
narrow and carefully crafted statutes the right to speak or print anything one
desires can be limited. Certainly, H.R. 4 has received the most searching review
and skillful drafting with the participation of the Executive and the Legislative
branches and other interests.
Among some of those who urge the absolutist view of the first amendment were
those who asserted in court that Marchetti and Snepp could not be held to their
secrecy agreements-that the higher law was the first amendment. The Supreme
Court clearly and firmly stated that the U.S. Government can take steps to protect
its intelligence secrets, specifically stating that the first amendment privilege did
not prevail in all circumstances. Those who lost their first amendment argument
at the bar of the Supreme Court are now trying to win that argument in these
Committee rooms. Well articulated assertions of unconstitutionality cannot sub-
stitute for legal reasoning as pronounced by our highest Court.
We hear too often about the "chilling effect" of this 'legislation. In our view that
is the purpose of H.R. 4-to chill those who would put lives in jeopardy by identi-
fying covert agents either by violating their trust or with the intent to impair or
impede the foreign intelligence activities of the United States. I fervently hope
their efforts are chilled.
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We have spoken before of the tremendous investment in dollars and time It
takes to develop cover for intelligence officers. This Committee has authorized this
effort and the Congress has provided the funds to accomplish this. Dedicated men
and women and their families are carrying out this mandate. Imagine their feel-
ings when in a possibly hostile or semi-hostile environment they are identified,
including car license numbers, street addresses, telephone numbers, and directions
on how to locate the front door of their apartment. The U.S. Government has an
obligation to protect its investment and the safety of these people and their
families.
Another fall-out one might note is the fact that many of the people listed In
these unauthorized disclosures of names of alleged CIA personnel, are actually not
CIA personnel and never have been. Yet this untrue designation will follow them
from post to post throughout their careers.
We should be able to say to covert informants or agents more than "just trust
us" to keep your name a secret. We should be able to say in addition-you are pro-
tected by a law which will send someone to jail who violates this trust.
It Is a misreading of the Constitution to say that the Government is powerless
to preserve the laboriously constructed network of intelligence officers and agents
and also powerless to provide a degree of protection for the physical safety of the
persons concerned.
In last year's hearings you heard testimony that activities prohibited by this
legislation are already covered by the old espionage statutes, 18USC 793 and 794.
Clearly this is not true-as evidenced by the fact that there have been no indict-
ments or prosecutions under these statues (18USC 793 and 794) of past egregious
cases. That's why we have H.R. 4. Either the statute covers the action and you
prosecute or you don't prosecute because the acts are not covered by the statue.
The so-called espionage laws require action with an intent-either to harm
the US. or to provide an advantage to a foreign country. In other words, an
otherwise lawful act is prohibited if couple with an evil intent. Those laws were
challenged as unconstitutional and in the Gorin case the Supreme Court firmly
rejected such assertion. The Heine case was tried under these laws and was cited
last year by a witness who termed H.R. 5615 unconstitutional. Why it was cited,
I don't understand because the Court simply held that Congress had not intended
to cover the specific acts, i.e. collecting unclassified information. The Court did
not disturb the ruling in the Gorin case that the laws were constitutional.
Assertions that H.R. 4 would prevent legitimate news stories citing the Gary
Powers case and the Alan Pope case don't stand up under a reasonable reading of
the careful wording of the bill. With any criminal statute one can construct a
theoretical or hypothetical set of facts which appear not to meet the intended
purpose of the law. Language is an art not a science. But in this bill there has
been a skillful choice of words to accomplish limited purposes.
It is recognized by all that H.R. 4 does not purport to solve all disclosure prob-
lems. A specific problem has arisen and this bill addresses only that problem and
does so very well. Those who urge that this should be a part of an overall revision
of the espionage laws or should be a part of charter legislation are in effect saying
let's do nothing about this problem. We urge action on this matter now and then
move on to the next bill.
The time is overdue when the U.S. Government should act to protect a vital
part of its national security machinery and provide some protection to our men
and women devoting their lives to the defense of our nation. Enactment will also
provide a powerful signal to those dedicated men and women that the Congress,
on behalf of the American people, is making an effort to support them.
Mr. WARNER. We support H.R. 4 as introduced, having in mind that
the committee reported the language in H.R. 5615. Reasonable men
can disagree on precise wording. We, for example, would prefer that
the penalties of 501 (a) and (b) be the same. We feel that the degree
of duty is the same. The committees found otherwise. As I say, reason-
able men can disagree.
We concur on the stiffer fine and prison term for 501 (c) as the com-
mittee reported over the original H.R. 5615. We would prefer coverage
of confidential informants of the United States, in the United States,
also coverage of persons. preparing to go overseas. We note the com-
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mittee has considered these carefully. We simply indicate our prefer-
ence to have included those.
We note the differences in S. 2216 as reported by the Senate Intelli-
gence Committee in H.R. 4 on 501(c). While either would be accept-
able, from my study of the law over a lot of years, I prefer the language
in H.R. 4. I think in some ways it might be a tough case to prove in
court, but I think it is a more clearcut assignment of a crime.
I think the addition of 503(a) to 5615 as reported, requiring the
President to prescribe procedures for cover arrangements is an excel-
lent provision. While of course the President has that authority, it is
a difficult subject, and for the statute to require the President to estab-
lish such procedures focuses attention on a very important matter
which has been one of the weak links in conducting clandestine opera-
tions, and that is cooperation of other government agencies in the cover
business. So I think this is a significant improvement in adding to your
bill.
Now, it has been charged that 501 (c) is unconstitutional. I disagree
with that view. It has been said that it is factually and facially uncon-
stitutional, but this is a view that is held by those, some of those who
believe that the first amendment is absolute. Well, this is simply not
true. The Supreme Court has repeatedly held that there are limits on
the first amendment and that carefully drawn statutes can prescribe
certain types of speech.
Further, we have seen that the Supreme Court has paid considerable
deference to intelligence in the sense of constitutional prerogatives.
We begin, for example, with the Totten case which arose out of the
Civil War where a former agent sued for salary, and the Supreme
Court simply took the view that judicially this is not a matter for
the courts to be involved in ; this is a matter for the executive branch.
That case is still cited as good law in current litigation.
We had many wiretap cases where courts consistently drew a dis-
tinction between wiretaps for domestic security and foreign intelli-
gence purposes, again showing deference to the constitutional pre-
rogatives of the President in foreign intelligence matters.
The other famous cases, such as the Waterman Steamship case, the
Detjun Leather case, again stress the constitutional prerogatives of
the President.
More recently we have had the Marchetti and Snepp cases. The view
that the first amendment is absolute is simply too narrow. The Su-
preme Court has has repeatedly held that under narrowly and care-
fully drawn statutes, the right to speech can be limited. I think H.R.
4 fits that category. It has been carefully worded, it has been gone over
most carefully, and I think it is a model of drafting.
Among those who have testified on H.R. 5615 and will testify on
H.R. 4, and asserting unconstitutionality of 501 (c) are those who
asserted in the courts that Marchetti and Snepp were protected by
the first amendment. The Supreme Court rejected those assertions
saying that the U.S. Government can take steps to protect its intel-
ligence secrets. Those who lost their first amendment arguments at
the bar of the Supreme Court are now trying to win it in these com-
mittee rooms, and I hope you don't let them.
The chilling effect argument. Well, from my view, those who would
violate their trust and give out lists of names of agents or who, with
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intent to impair or impede the foreign intelligence activities would
give out lists of names, putting those persons in physical jeopardy,
t think there should be a chilling effect, and I fervently hope it does
chill them.
We do have tremendous efforts in dollars and time invested in our
clandestine apparatus and the cover provided for these clandestine
operators. This committee has authorized those activities, and the Con-
gress has appropriated money to carry out this mandate. Think of the
men and women who are fulfilling that mandate. How would you feel
in a semihostile environment abroad if your name appeared on a list
of CIA agents, giving your telephone number, your address, the license
number on your car, and even directions of how to get to your house
or to the front door of your apartment. Think how your family feels.
This is tough.
I think in the area of informants and agents that we ought to be
able to say to them more than trust us. We ought to be able to say there
is a law that will punish those who give out your names if they do.
You do have some protection in law. It is not just trust us. Do trust
us, but there is law behind us.
I just think it is a misreading of the Constitution to say that there is
no way that this Government can protect this tremendous investment
or protect the lives of our agents and informants who are doing what
the Congress has said you must do.
There have been assertions in previous hearings that these potential
crimes are covered by the espionage laws, 18 U.6.C. 793 and 794. This
is simply not true. Clearly there have been instances which would have
been prosecuted if the laws covered them, and the Justice Department
has been asked to look at these cases, and time after time they have said
the law simply isn't broad enough to cover these particular acts, and
we cannot successfully win a prosecution. That's what they tell the
intelligence agencies when they ask for prosecution, and yet they come
up here and urge that they are already covered by law. It is just not so.
There have been challenges to the espionage laws, and I would like to
comment for just 1 minute on the famous Garin case arising out of
World War 11, and here the statute was challenged as being unconsti-
tutional on the ground of vagueness. The court resoundingly held that
it was constitutional and convicted Gorin and his associate.
Now, in these hearings last year someone brought up the Heine case,
which was another case brought under the espionage statutes. Why it
was brought up I am not quite certain because even though Heine was
not convicted, the court held that the laws were constitutional. He was
not convicted because the court said the breadth of the statute did not
cover his effort which was simply to collect unclassified information.
Now, I suppose there is some sort of farfetched analogy there. I don't
know. But the laws were held constitutional.
Now, it has been said that this will prevent legitimate criticism
of the intelligence activities. Well, we all know this is simply not so.
There have been references to the Gary Powers case and the Alan
Pope case, that these couldn't be discussed in newspapers. Well, this
is simply not true because the statute is so carefully drawn, as you
gentleman well know. Discussion of the Powers case and the Pope
case would certainly not begin to stir tremors in the Department of
Justice to prosecute under this statute because it just doesn't fit. The
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plain wording of the statute doesn't cover those. This is simply a red
flag. There has been plenty of criticism of the intelligence agencies,
and there will continue to be, and there should be.
Again, we recognize that H.R. 4 does not solve all of the problems
inherent in clandestine operations and the intelligence business. How-
ever, it is targeted at a specific problem, and I say let's get on with
the job and meet that particular target. Those who say, well, let's
wait for an overall revision of the espionage statutes or let's wait for
charter legislation are in effect saying let's don't do anything right
now because it is going to be a long time before those happen. I say
meet the problem that has been identified and let's get on with the
job, get to the next problem.
Now, concluding, then, I feel that the time is overdue when the
U.S. Government should act to protect a vital part of its national
security machinery and provide some protection to our men and
women devoting their lives to the defense of our Nation. Enactment
will also provide a powerful signal to those dedicated men and women
that the Congress, on behalf of the American people, is making an
effort to support them.
Thank you, Mr. Chairman.
Mr. MAzzora. Thank you very much, sir.
I would yield myself 5 minutes for perhaps a couple of questions.
First, Mr. Greaney, you adopt and endorse everything that Mr.
Warner said ?
Mr. GREANEY. Yes, sir. He is the legal adviser to the Association
of Former Intelligence Officers, and this is the position of our orga-
nization.
Mr. MAZZOLI. Right, I was going to precisely follow it. This is the
position of the organization, and how was the position arrived at?
Mr. GREANEY. With a meeting between the executive committee and
myself, which included President John Maury, Walter Pforzheimer,
Mr. Warner, and myself.
Mr. MAzzOr r. And that would be the normal, standard practice
under your charter for adopting a position by the entire organization,
is that correct?
Mr. GREANEY. Yes, sir.
Mr. MAZzom. Thank you.
Mr. Warner, as a man who has had a long, distinguished career
in the intelligence field, and the legal side, do you believe that the
adoption of H.R. 4 would help?
Mr. WARNER. Yes, I do.
Mr. MA ora. In what fashion would it help to solve the problem
that we see of disclosure of names which render these people ineffec-
tive in their profession?
Mr. WARNER. Well, to be very honest about it, Mr. Chairman, I be-
lieve that the principal targets of this kind of legislation will attempt
to get around it, but I feel that they are not going to have the temerity
to do the blatant things that they are doing today, that is, to name
names and lists. They may publish one or two here. They may plant
it in a story here. But that lessens the damage.
So I feel it will have a deterrent effect. They will be advised that it is
unconstitutional, but we can be wrong, they will be told.
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Mr. MAZZOLI. Well, if H.R. 4 is adopted and it does indeed cutoff
this outrageous behavior of divulging names, will that inhibit the free
discussion of overreaches by the CIA, of misbehavior, maybe even il-
legal conduct?
Mr. WARNER. I don't think so in any way will it do that. The
present-
Mr. MAzzoLi. Some tell us, I might say, and I would like to have
your observations, some say that naming names is essential to making
this kind of public debate.
Mr. WARNER. Naming lists of names with intent to impair or impede
the foreign intelligence activities is a far different factual situation
than describing a le timate situation such as the Powers event. Here
was a very newsworthy story, and it was discussed in detail. The criti-
cism of the Agency, Operation CHAOS, they got their story on Oper-
ation CHAOS, and they didn't name agents.
Mr. MAZZOLI. You don't think the Powers case, then, would fit into
the sanctions here and cause some legitimate reporters some apprehen-
sion about going to the slammer for talking about-
Mr. WARNER. No reporters that I know of, legitimate or illegitimate,
would be deterred by this law in reporting a Powers case or an Alan
Pope case.
Mr. MAzzoLi. Thank you.
Do you think that false identification should be covered by the bill 4
It has been stated that the names that are being divulged are not in
each and every case truly CIA officers but in fact are innocent members
of the Embassy staff. There was some suggestion that we cover those
instances of where individuals are falsely identified.
Mr. WARNER. I think that is a very interesting point, and I have not
studied precisely how one would phrase that, but I think it would be a
useful addition to this bill.
Mr. MAZZOLi. I would ask you if you could, sir, when you have time
to focus on it, maybe you and Mr. Greaney might supply us with
this
Mr. WARNER. We would be happy to do that.
Mr. MAZZOLI. And some observations you might have on wording
and the pluses and minuses of that type of an approach.
You mentioned, sir, the fact that cover people operate in hostile and
semihostile circumstances under cover, and this brings us to the topic
we talked about a bit yesterday, and that is the availability of cover
to CIA people.
We understand that there are some cover difficulties.
Would you describe them to some extent 4
Are we, by H.R. 4, trying to solve a problem that could be elimi-
nated by a governmental decision to provide better cover for agents
posted abroad $
Mr. WARNER. I don't believe that the problem would ever be elimi-
nated. Certainly there are problems in the cover field. You have heard
many others talk to this. As you know, official cover is an essential part
of the cover picture, but it is only a part. When you are operating in
foreign countries you simply have to have an inviolate place for files,
for communications. So you are goingto have to have official cover as
long as you are operating clandestinely.
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And I think that there can be improvements in that. The State De-
partment has been very difficult to work with on this, and they have
their reasons, and good reasons, too. Other agencies have been some-
what more cooperative. But that is why I welcomed the addition to
H.R. 4 of this provision that the President shall establish procedures
because this will lay out a pattern by which all Government agencies
will be governed, then. It won't be left to the whim and the caprice of
whoever is making policy in a particular department as to how much
cover the agency will be afforded.
Mr. MAZZOra. I have one last question before my time expires. There
is a tendency on the part of people, reporters, for example, or political
activists in foreign countries, to have pegged the people in our Em-
bassy who are likely to be intelligence officers. They seem to know them,
and they watch them just as we know and watch them.
Where it the harm in stating it publicly what is known implicitly or
what is known privately?
Mr. WARNER. There may not be harm in a particular case. What we
are concerned with is the ability of groups or individuals to choose
their targets in particular countries or other areas where it can do
serious harm.
Of course we know that in certain situations the chief of station is
well known to the press circles and so forth. But legitimate press gen-
erally respects that and they don't make them a target. And conditions
do change in countries. What may be a relatively benign environment,
tomorrow may be a hostile environment. And so just those change of
conditions could change the potential harm to the individual.
Mr. MAZZOra. My time has expired.
The gentleman from Illinois is recognized for 5 minutes.
Mr. MCCLORY. Thank you, Mr. Chairman.
First of all, I want to applaud you, Mr. Warner, for your earlier
service as General Counsel to the CIA and for your countinuing effort
to combat those who would undertake to destroy it. And, I want to
commend you and your organization for your very effective efforts at
rebuilding and restoring the strength of the CIA and of our other
intelligence agencies.
Mr. WARNER. Thank you.
Mr. MCCLORY. The question has been raised as to what effect this
legislation would have where it is claimed that the information with
regard to persons operating under cover is obtained through public
sources; for instances, sources abroad or even sources that are planted
for the purpose of securing such information and then publicizing it.
I think in a sense you answered that when you said the responsible
press doesn't jeopardize any of our national security interests.-with
respect to the New York Times and the Pentagon Papers, some infor-
mation never was disclosed and has not been to this day because they
respected their responsibilities.
Mr. WARNER. That's right.
Mr. MCCLORY. However, how do you feel about a defense which
would be raised to the effect that the information that was published
was secured from public sources?
Mr. WARNER. Well, Mr. McClory, as I have followed these hearings
and the careful provisions that have been built around this particular
section, whoever with an intent to impair or impedge engages in an
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53,
effort to identify, and then in fact with such intent also discloses.
I think this goes beyond simply collecting unclassified information.
It is a conscious effort to impede or destroy the intelligence effort, and
I think this is protected by the Constitution. When you add in the fac-
tor of physical jeopardy, I think it is clearly constitutional, and I say
let's don't fight that here in these committee rooms, let's eventually
fight it in the courts.
Mr. MCCLORY. A recommendation was made yesterday in the hear-
ing. that we should also add to the bill the attempt to commit this of-
fense of disclosing, for, just as murder is a crime, attempt to commit
murder is a crime. Do you feel that we should also add the attempt,
even though the person that attempts to disclose or reveal the names
is unsuccessful?
Mr. WARNER. That is an interesting concept and it poses technical
difficulties because how do you know what one is attempting to do if it
is speech until he speaks? So I see a problem here.
But I would not be against an effort to try that. If in some manner
the Government were to learn that someone was on the verge of pub-
lishing something, I think that the same reasons that govern attempts
in other types of criminal law should apply here. I don't see why we
shouldn't try it.
Mr. MCCLORY. As you know, the Senate version provides the lan-
guage "reason to believe" and in the House version it is "intent". I
agree with your support of the House version. However, would you
have any objection if we put in "either/or", that if the person charged
had reason to believe "or intent?"
Mr. WARNER. I think that would be a very interesting compromise,
and I would have no problem with that, Mr. McClory.
Mr. MCCLORY. Thank you.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Georgia is recognized for 5 minutes.
Mr. FowLER. I have no questions, Mr. Chairman.
Mr. MAZZOLI. Thank you very much.
Perhaps we can go around for a second round. I recognize myself for
a couple of minutes.
Mr. MCCLORY. Mr. Chairman, I am terribly sorry, I have another
meeting to go to.
Mr. MAZZOLT. The bill, I am told, which was reported by the Senate
last year exempted from sanction an individual who had disclosed
himself or herself as having been an agent.
Mr. WARNER. Yes.
Mr. MAzzoLT. And I wondered what your reaction to that would be.
Mr. WARNER. I have a bad reaction to it, Mr. Chairman, because
it is not up to the individual to determine when his status is no longer
classified. As you know, the Agency does retire people under cover.
So it is not just that individual that is involved; it is his entire series
of contacts over the years, and he should not be, in my opinion, the
judge. of when he may jeopardize those with whom he has been in
contact over 20 or 30 years. That should be a governmental decision,
not his.
Mr. MAZZOLI. Out of curosity, I have never been in the intelligence
agencies, but the contracts that are signed deal with publication. Do
they deal with this kind of thing, of making disclosures?
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Mr. WARNER. Well, it deals with it in the general sense that they
may not disclose classified information without authorization from
the Director.
Mr. MAZZOLI. Classified information would be their under-cover
situation.
Mr. WARNER. That's correct. As I say, many people are retired un-
der cover and don't draw a green check for their retirement because
of their associations.
Mr. MAZZOLI. Thank you.
You mentioned in your statement serving in hostile situations, and
there's probably not a lot of argument at least on this panel and prob-
ably in the Congress on that type of situation. There is some good
faith difficulty with the concept of people who are not in hostile cir-
cumstances; for instances, those in the United States or having served
abroad in hostile environment but now back home. Could you address
yourself to that? Does this make the bill overbroad and
Mr. WARNER. No ; I don't think it makes it overbroad. As I indi-
cated, we might have a preference, for example, to have the bill ex-
tend to people who are under cover in the United States. Granted, the
element of physical jeopardy is not as great, but they are in training
preparatory for going overseas, so that listing them does frustrate the
Government effort to conduct clandestine activities. But I can see the
wisdom in the way the committee has constructed the bill.
Now, granted, at particular overseas posts the environment is such
that the element of jeopardy today is not as great as in another coun-
try, but as I indicated earlier, tomorrow those conditions can be quite
changed when the individual is there and the family is there, or we will
have somebody else being posted into a hostile environment. So I think
you have to look at the overall picture of rotation into environments or
circumstances changing the environment. So you have to use a stand-
ard, and the standard is overseas.
Mr. MAZZOLI. Thank you.
My very last question is, if not a jot or a title of this bill was
changed, would you support it?
Mr. WARNER. I would support it as written.
Mr. MAZZOLI. Thank you very much.
Thank you, very much, Mr. Greaney.
Mr. FOWLER. Let me ask one question.
Mr. Warner, I take it from your response to one of the chairman's
questions that you are not totally satisfied that our Government is
doing everything that it could to protect the identities of our people
overseas, is that correct?
Mr. WARNER. Yes ; I feel that way.
Mr. FOWLER. What specifically could it do that it is not doing that
would be greater insurance that our undercover agents were protected?
Mr. WARNER. Well, I think the Government could do several things,
Mr. Fowler. No. 1, they could pass this bill or something like it. No. 2,
the
Mr. FOWLER. I am talking about aside from legislation. I am talking
about protection through adequate cover.
Mr. WARNER. All right. Well, I think that this legislation, even if it
doesn't pass, has certainly alerted the executive branch that get your-
self together on this matter of cover, that this is an official Government
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mission and )therefore, Mr. State Department, Mr. Department of De-
fense and other agencies, cooperate with the Central Intelligence
Agency and the other agencies, the few that do have cover assignment,
and work out a way that will protect these people better than you have
in the past.
Even today, you know, the people in the Department of State don't
welcome the. CIA people coming over asking to provide three slots in
country x. They don't welcome it. They grudgingly work with them,
but to have an executive mandate saying this is what you, Mr. Depart-
ment of State, will do, it is going to help over a long period of time.
It takes time to build these things, build mechanisms.
Mr. Fowi. . Would you support statutory authority for CIA to be
provided with cover designations in any full-time career U.S. Govern-
ment position $
Mr. WARNER. I don't believe I would, Mr. Fowler.
Mr. Fowi&R. Why not?
Mr. WARNER. I think that is too rigid. I think that a cover position
within a department has to fit within their administrative require-
ments, policy and history of positions, and I think to try to mandate
it by statute is gong to be too rigid. I think that this approach that
H.R. 4 takes of having the President issue an executive order on a
classified basis, of what the departments do, is probably a better step
to take in the meantime. Let's see how that works, and maybe, if that
doesn't work, then possibly legislation would be required.
But I think this interim step of an executive order mandated by the
Congress should be tried.
Mr. Fowzns. Would you support statutory authority for withhold-
ing of the State Department's Biographic Register I
Mr. WARNEa. I think I might. It would depend on the wording of
that legislation. Again, I being a lawyer and having worked with Con-
gress for a lot of years, I feel there are too many laws, in principle.
Mr. FowimL You won't get much debate there.
Mr. WARNER. Right.
And so I am reluctant to concur in another law to mandate some-
thing. Again, this could fit within the rubric of this executive order,
and I would rather try that and see how it works, and then have the
departments come back and report to you at the committees, look we
are still hav' problems despite an executive order, then maybe took
at some type of legislation.
Mr. Fowraa. Thank you, sir.
Mr. WARNER. Thank you.
Mr. Mezzos. Thank you very much, gentlemen. We appreciate
your time.
Mr. WARNER. Thank you.
Mr. MAzzoLi. Now, our second witness is Mr. Kenneth Bass, former
counsel to the Attorney General for intelligence policy. Mr. Bass has
appeared before our committtee a number of times, and he has always
been very helpful to our thinking. And this is, I guess, the first appear-
ance though, the first appearance in your new capacity. So we certainly
welcome you.
Of course, your statement will be made a part of the record, and
you may address yourself to the issues however you wish. And we
welcome you.
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STATEMENT OF KENNETH C. BASS III, FORMER COUNSEL TO
THE ATTORNEY GENERAL FOR INTELLIGENCE POLICY
Mr. BASS. Thank you, Mr. Chairman.
Before I begin, let me make my presence here clear in terms of the
capacity in which I speak. I speak solely as an individual based on
my prior experience both us as a lawyer and as counsel for intelligence
policy.
While my presence was suggested, I think, to the committee and
to myself by the American Bar Association's Committee on Law and
National Security, I do not appear as an official representative of that
committee. Indeed, it is fair to say that the consultations I had with
people associated with the committee revealed only that, as one expects,
lawyers disagree.
My consultants did not agree with my statement, nor did they agree
with each other, and there were as many different views as there were
lawyers in the room.
I would ask, Mr. Chairman, that my statement be made a part of
the record. I will not read it nor summarize it.
Mr. MAZZOLI. Without objection, it certainly will be a part of the
record.
Mr. BASS. Thank you, sir.
[The prepared statement of Mr. Bass follows:]
STATEMENT OF KENNETH C. BASS III
Mr. Chairman, members of the Committee, I appreciate the opportunity to
testify today on H.R. 4, the Intelligence Identities Protection Act. The views
expressed are my own and do not represent the position of any other person
or organization. My views are informed by my recent experience as Counsel
for Intelligence Policy at the Department of Justice, a position which I held
from 1979 when it was created by Attorney General Bell until the recent change
in administrations. This statement has been prepared in consultation with rep-
resentatives of the American Bar Association's Committee on Law and National
Security, but is not an official position of the Committee or the ABA.
,The Committee has, of course, received extensive testimony in prior sessions
on the issue of unauthorized disclosure of the identities of intelligence person-
nel. It is not my intention to review that record nor discuss the necessity for
some legislation in this area. Given the broad support for some such legislation
which was evidenced last year, I assume that some version of H.R. 4 will be
favorably reported. It is my Intention to focus on proposed Section 501(c) of
the National Security Act, a section which would make it a crime for any person,
under certain circumstances, to disclose the identity of an Intelligence agent,
even if that disclosure is based only on publicly available information.
Section 501(c) raises the most difficult issues-both of law and policy-pre-
sented in the proposed legislation. Both concerns are legitimate, and proper
resolution of the competing arguments is difficult. My focus will be on the legal
issue-the constitutionality of Section 501(c).
We begin the analysis with the observation that this law would apply crimi-
nal penalties to "pure speech." Some, but few, would contend that that fact
ends the analysis since the First Amendment provides that "Congress shall
make no law . . . abridging the freedom of speech, or of the press." Mr. Jus-
tice Black often stated his view that "no law" means "no law", a view he re-
peated in the national security context in the Pentagon Papers Case, New York
Times v. United States, 403 U.S. 713, 716-24 (1974). Mr. Justice Douglas shared
this view and presumably they would both have viewed Section 501(c) as un-
arguably unconstitutional on its face. But those views have not been accepted
by a majority of the Supreme Court. The majority rule has always been that
the First Amendment is not absolute and that some "pure speech" can be
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abridged through criminal prosecution. Criminal prosecutions-or obscenity (Roth
v. United States, 354 U.S. 476 (1957) ), and use of "fighting words" (Chaplinsky
v. New Hampshire, 315 U.S. 568 (1942)) have been upheld. Mr. Justice Holmes
stated his view of the governing principle in Schenck v. United States 249, U.S.
47 (1919) :
"The most stringent protection of free speech would not protect a man in
falsely shouting fire in a crowded theater and causing a panic ... The question
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
the substantive evils that Congress has a right to prevent." More recently, the
Supreme Court has stated : "It has long been recognized that the First Amend-
ment needs breathing space and that statutes attempting to restrict or burden
the exercise of First Amendment rights must be narrowly drawn and represent
a considered legislative judgment that a particular mode of expression has
given way to other compelling needs of society." Broderick v. Oklahoma, 413
U.S. 601, 607 (1972). I view these statements as the proper standards against
which to measure Section 501(c).
So viewed I believe some version of 501(c) would withstand constitutional
challenge, at least insofar as the issue is one of "facial" constitutionality.
Phrased differently, one cannot conclude on the basis of prior decisions that
Section 501 (c) is unconstitutional on its face, though its application in a specific
case might well be deemed unconstitutional. However, I do not believe the
formulation of Section 501(c) contained in H.R. 4 is the one most likely to be
held constitutional. Certain amendments would, in my view, increase the chances
that the statute would not be held unconstitutional on its face.
This legislation seeks to prevent two distinct "substantive evils that Congress
has a right to prevent." One is the possibility of physical injury, personal trauma
or even death which could be caused by disclosure of an agent's relationship with
an intelligence agency. The second is the. probability that such disclosures will
interfere with the intelligence activities of the Government. The more difficult
issue is whether mere disclosure of identities, unaccompanied by advocacy of
action to harm agents or to interfere with intelligence activities, presents a case
where the danger is so "blear and present" as to sustain criminal sanctions. The
record developed by Congress and its own judgment as reflected in the legislation
will, I believe, be given considerable weight by the courts.
This Committee and others which have considered similar legislation have ob-
viously attempted to limit Section 501(c) to a narrow class of cases which present
the greatest chance that the substantive evils will in fact occur. H.R. 4 attempts
to strike the proper balance by punishing only those individuals who act "in the
course of an effort to identify and expose covert agents" when both the effort and
the specific disclosure are made "with the intent to impair or impede the foreign
intelligence activities of the United States." This two fold reliance on the
speaker's own intentions, in my opinion, increases the risk that courts will hold
the statute unconstitutional on its face. I reach this conclusion with trepidation,
understanding the desire of the Committee to deter only those who personally
intend to interfere with intelligence activities.
But I am convinced that there is too slight a connection between the Speaker's
own intentions and the likelihood'of one of the substantive evils occurring to
justify making that intention an element of the crime. The risk of such disclosures
producing personal injury or disruption of intelligence activities is more depend-
ent on the intentions of the speaker's audience than those of the speaker himself.
A disclosure intended to improve intelligence activities could in certain circum-
stances provoke exactly the same reaction as the same disclosure made with a
subjective intention to produce disruption of those activities. The speaker's in-
tention seems to bear little connection to the probable risks of harm.
True, the element of intent narrows the class of persons to whom the section
applies, but it does so in a manner that conflicts directly with the goal of the First
Amendment. The intent element means that only those who are opponents of
intelligence activities can be punished. Inclusion of this element focuses the sec-
tion on the personal views of the speaker, not the objective risk of harm which the
statute seeks to prevent. Disclosures of identities for "good" reasons are per-
mitted, while equally dangerous disclosures for "bad" reasons result in
prosecution.
The risk of substantive evil arises whenever there is an objectively demon-
strable reason for the person making the disclosure to believe that such a risk is
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present. This fact suggests that the section should apply whenever the speaker
"has reason to believe" that intelligence activities would be impaired, whether
or not the speaker personally intends to impair those activities. If this approach
were taken, the statute would then apply to "critics" as well as "supporters."
I previously mentioned that this statute tends to prevent two distinct evils,
but the current provision reflects only one of these evils in the terms of Section
501(c). The section would more closely relate the proscribed speech to the
substantive evil if it encompassed cases where personal harm to agents was
foreseeable as well as cases where intelligence activities would be affected.
These conclusions indicate that the constitutionality of Section 501(c) might
be enhanced were it revised to apply to any person who "in the course of a
pattern of activities intended to disclose covert agents discloses any information
that identifies an individual as a covert agent in circumstances where there is a
reason to believe that such disclosure could cause injury or harm to the covert
agent or impair or impede the intelligence activities of the United States," if
the person knows the information so identifies the agent and that the government
is trying to conceal the intelligence relationship.
Mr. Chairman, there are undoubtedly other ways to resolve the tension be-
tween the First Amendment and the dangers caused by disclosing agents' identi-
ties. All of the suggested solutions produce different balances and would poten-
tially affect different classes of individuals. Congress must decide which alterna-
tive strikes the best balance. The judicial precedents appear to leave considerable
latitude in making this decision. There is no single solution.
Mr. BASS. Mr. Chairman, my purpose in appearing is to comment
specifically on the constitutionality of the proposed section 501 (c) of
the National Security Act, which as the committee well knows, has
become the most controversial, both in policy and constitutional terms,
proposal in the legislation. That is the section that deals with persons
who are not former Government employees, and would criminalize
the disclosure of agents' identities, even if that disclosure is based en-
tirely on publicly available information.
There has been a great deal of debate about the constitutionality
of any such effort. I believe it is constitutional to pass a statute
criminalizing that form of conduct, but that some versions of that
criminal provision are more constitutionally sound than are other
versions.
In specific, I am concerned about the present formulation in H.R. 4
insofar as it would criminalize those disclosures only when they are
made with intent to impair or impede the intelligence activities of the
United States. I think that formulation of intention, one that is a
subjective formulation and rests on the individual views of the
speaker-the speaker or publisher's own personal intentions-does
raise additional constitutional issues that render the legislation more
vulnerable to judicial invalidation than other formulations.
To make that general statement more concrete, let me hypothesize
a specific situation. Suppose there were to be a broad public debate
about the wisdom of covert action on the part of the CIA, and in the
course of that debate two private commentators of differing personal
persuasions decided to talk specifically about past CIA activities. One
of them, a supporter of covert action, manages through diligent inves-
tigative reportorial efforts to come up with a list of half a dozen past
covert actions which would widely be regarded within the United
States and abroad as laudatory, things that saved lives, things that
accomplished the inhibition of dictatorial efforts widely regarded as
such, things that helped obvious freedom fighters, matters of that
nature. Whereas the other commentator decided that covert action
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was always inimical to the interests of the United States and impaired
intelligence analysis, and engaged in a similar effort of investigative
activities to come up with* a list of horribles, things that would be
widely regarded as mistakes on the part of the CIA.
Both commentators decide that in order to make their stories credi-
ble, it is necessary for them to name names, to identify agents and
disclose the operatives who engaged in the particular activities, and
they undertake an effort to publish those stories repeatedly, with a
few instances in one, a few instances in another.
As I read H.R. 4, the commentator who opposes covert action could
be prosecuted. The commentator who supports covert action could not
because the former has an intention to impair or impede intelligence
activities; the other has an intention to foster intelligence activities.
I don't think such an outcome is the safest in terms of constitutional
analysis or wise policy enactment. To me, the dangers that flow from
that conduct are the same regardless of the intention of the com-
mentator. In both cases there is a clear and obvious risk to the per-
sonal welfare of the agents who were involved in those activities, as
well as to the ongoing ability of the United States to conduct such
activities in the future, and it should not be up to the private spokes-
man to decide when to disclose the identities of agents.
So I would prefer a statute which does not draw a distinction based
on the intention of the publisher or of the speaker or of the writer but
instead deals with the circumstances in which the disclosure is made.
There are many ways of formulating such a test. I suggest in my
prepared statement one version. The Senate Intelligence Committee
has another approach to the problem, but there are various ways to
have the statute apply whenever there is an objective reason to believe
that the disclosure might lead to the danger that the Congress wishes
to prevent.
My second point deals with that danger. As I read the congressional
intent and the legislative history in previous sessions, there really are
two separate and discrete substantive evils which concern Congress.
One is the safety to the officers and agents of the intelligence commu-
nity who, history shows, have clearly been endangered or harmed in
terms of their personal welfare, their families' psychological welfare,
or their future careers, through unauthorized disclosures of their
identities.
A second concern is the integrity of the intelligence process itself,
the ability of the United States to engage in the sometimes necessary
but lawful clandestine activities abroad and in the United States.
All forms of the legislation presently before the Congress, I believe.
deal only with potential harm to intelligence activities. They do not
specifically relate to disclosures which might result in harm to the indi-
vidual agents. I believe that second element, the harm to the agents,
should be put in the statute in the disjunctive. That is, the statute
should be phrased to apply to any disclosures in circumstances where
there is reason to believe the disclosure of identity might cause harm to
an agent or impair or impede the intelligence activities of the United
States. I think such a statute would more clearly proscribe the conduct
that poses the substantive risk that is concerning the Congress. I believe
it also would strengthen the chances that judicial review would result
in decisions that such statutes are constitutional.
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Mr. Chairman, with those comments I will conclude my formal pres-
entation and stand welcome to answer any questions the committee
might have.
Mr. MAZZOLI. Thank you very much, Mr. Bass.
I yield myself 5 minutes at this point to ask a few questions.
When we set up in the committee the dual intent standard, intent to
impair and impede, and part of a pattern and a program or a course of
effort, it was done with respect to 501(c) because we felt that was a
little different situation than when there has been violation of trust,
either in the case of knowledge of names or having access to classified
information. We said this is where the press might have a legitimate
problem, this is where constitutional experts and civil libertarians
might indeed have some problems. So we said as to 501 (c) we would
make it a fairly tough standard which would have to be met and sur-
mounted before a prosecution could be made.
Now, if I understood at all-and you have a brilliant background
here-if I understood your challenge of the subjective standard and the
substitution of an objective standard, it would seem to me from the out-
side that the reason to believe either that the safety of agents was jeop-
ardized or that the ability of the United States to do clandestine intelli-
gence activity was impaired, would be easier to reach and therefore
more prosecutions could be developed than when we have the double
intent standard.
And I wonder if maybe, am I misreading, misunderstanding what
you are saying, which I gather, at least I believe, seems to say that the
better constitutional language would make for easier prosecutions.
Mr. BASS. Mr. Chairman, you do understand my views correctly, and
you correctly state the result of the difference between the two stand-
ards.
The standard in the committee's bill does, in my judgment, reach a
smaller group of potential defendants than would the standard I pro-
pose, but I don't think that is the crux of constitutionality. T don't
think the issue under the first amendment is have we reached the small-
est possible group of speakers. I think there is, if you will, an element
of equal protection analysis that is in the first amendment.
If Congress determines that a particular form of pure speech, which
this is-this is not action, in my judgment, it is pure speech-if Con-
gress determines that that form of pure speech poses a risk of creating
another substantive evil, not the speech itself but some other conse-
quence, in this case injury to agents or to the intelligence activities, the
focus of Congress, I believe, under the Constitution, must be on the
connection between the speech and the substantive evil, and it must at-
tempt to criminalize that speech and only that speech which has a
clear and present danger of producing the substantive evil. But in
order not to discriminate among speakers based on their own political
persuasions or viewpoints, I don't think Congress can single out within
that category of speech likely to produce substantive evil only a par-
ticular form of speech. I don't think you could make it a crime for
only Democrats or only Republicans or only Communists or only Fas-
cists to engage in this particular type of speech, even though such a
bill would tend to be directed at a more limited, smaller class of people.
Legislation which limits the class of people who otherwise are equal,
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that is, people whose speech poses the same risk, by reaching down into
that class and picking up only critics or only supporters or only people
of particular political or ideological persuasion, I think begins to tread
very closely on the core of the first amendment.
Mr. FOWLER. What form of speech are you talking about?
Mr. BASS. It could be oral speech, written speech, publication of
articles, speeches, or whatever, but it's pure speech. I'm talking about
any law that punishes people not because their speech has a likelihood
of producing a particular consequence alone, but because their speech
is of a particular type, that it is a speech intended to impair or impede
intelligence activities as opposed to a speech intended to support intelli-
gence activities. And I think the risk of substantive evil is the same in
both cases.
Mr. MAzzOLI. That is very interesting. In other words, you would
say that if I would unwittingly name some names of agents and there-
fore either put them in some degree of jeopardy for their safety or im-
pair their ability to perform a clandestine operation, that I should be
as sanctionable and as subject to prosecution, and far be it that I would
ever want to hurt the United States or hurt this agent, but I should be
in the same category as someone whose mission in life was to destroy
the Nation's capability to protect itself or to generate information
about the enemy or to make sure that every agent is impotent.
And your theory is that that is the only way that constitutionally
you probably would be safe.
Mr. BASS. Mr. Chairman, I would not be so bold as to say that is the
only way.
Mr. MAZZOLI. Thank you.
Mr. BASS. I don't think constitutional law is sufficiently clear to say
that any of these versions are unconstitutional on their face. I think it
is safer if you don't get to the intention of the speaker, and the reason
for that is as follows : I think intention is relevant to issues of prosecu-
torial discretion and to issues of sentencing but not to criminal liabil-
ity. If the risk is the same then there should be a potential liability re-
gardless of the motivation of the person making the disclosure.
Mr. MAZZOLI. Well, my time has expired.
Very interesting. Thank you.
The gentleman from Georgia is recognized for 5 minutes.
Mr. FowLER. I find it very intersting, too, because I didn't under-
stand it. You two constitutional lawyers are going to have to go back
and help me out.
Did you agree with the Chairman's analysis of your remarks? Is
that what you are saying, that an inadvertent disclosure should be
treated equally as criminal activity as a deliberate, intentional
disclosure?
Mr. BASS. No, Mr. Fowler.
Mr. FowLER. That's what he said that you said.
Mr. BASS. It proves the difficulty of the issues, I think, and the com-
munications on them.
Mr. FOWLER. Well, I know I am right in interpreting what he said.
Now, you tell me what you really said.
Mr. BASS. I am undoubtedly misinterpreting the Chairman's com-
munications.
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I don't believe that the statute should criminalize any inadvertent
disclosure, regardless of intention. We, are talking about many dif-
ferent meanings, I think, of the word "Intention." The statute should
apply only to intentional disclosures; that is, a disclosure made with
knowledge of the fact that the person is making a disclosure and with
intention to make that disclosure. If it is inadvertent, if it is un-
knowing, if it is just rambling speculation that someone is an agent
and not owledge, I don't think any statute should apply.
Mr. FOWLER. I follow you there. You want intention. I thought
you said in your prepared remarks that you wanted to eliminate in-
tention. That's what I wrote down.
Mr. BASS. The intention that I am speaking of in my prepared re-
marks and in my oral presention is the element of H.R. 4 which deals
not with the intention to disclose but with the intention to impair or
impede intelligence activities by that disclosure. That is a different ele-
ment of intention as I read the statute. It isn't the type of intention
which the law refers to as objective intentions. One intends the neces-
sary and reasonable consequences of one's act. It is an intention which
focuses, as I read it, on the state of mind of the person making the
disclosure. What result in terms of reaction following the disclosure
does that person intend? Does the person intend that the disclosure
will lead to an impairment of intelligence activities or does the person
intend that the disclosure will lead to something else?
And I think that translates in practical terms into an element of
proof which focuses on the political persuasion or ideological persua-
sion of the person making the disclosure.
Mr. FOWLER. Specifically, what is it in H.R. 4 that you propose to
cure? What would be the language that you would use?
Mr. BASS. The language which concerns me is in proposed section
501(c), page 3. It is lines 1 through 5 of the proposed section which
reads:
Whoever, in the course of an effort to identify and expose covert agents,
with the intent to impair or impede the foreign intelligence activities of the
United States, discloses with the intent to impair or impede the foreign intelli-
gence activities of the United States ...
And then it continues.
Mr. FOWLER. How would you change it?
Mr. BASS. I would change it to read as follows, and this is in my
prepared statement on page 6:
Whoever in the course of a pattern of activities intended to disclose covert
agents discloses any information that identifies an individual as a covert agent
in circumstances where there is a reason to believe that such disclosure could
cause injury or harm to the covert agent or impair or impede the intelligence
activities of the United States.
And then would continue as the present version does, so that
Mr. FOWLER. Are you familiar with the so-called Kennedy com-
promise?
Mr. BASS. Yes, sir.
Mr. FowLER. Would that do the same thing, in order to impair or
impede the effectiveness of covert agents, or with reckless disregard for
the safety of covert agents? Is that the same as what you are trying to
do?
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Mr. BASS. The first part of it, I think is the same. There is another
part of the Kennedy compromise, the portion that deals with the
affirmative defense for one engaged in scholarly or news reporting
activities which I think reaches a totally different point. But the first
part up to the reckless disregard portion of the formulation I think
does attempt to accomplish the same purpose or reaches the same result.
Now, again there is a distinction, I think, between the Kennedy
compromise and what I am proposing here on this second element
which is to include as an alternative substantive risk the injury to the
agents as opposed to the impairment of the intelligence activities.
I understand and agree with the rationale that the bill should not
be limited to disclosures which pose a risk of harm to agents, but if
one phrases it in the alternative, that is, a risk of harm to agents or a
risk to intelligence activities, I think you reach both of the substantive
evils and do so in a way that strengthens the constitutionality of the
legislation.
Mr. Fowi.E$. Under your proposed standard, what proof would the
Government offer to show reasonable belief, reason to believe that
harm would result to intelligence activities?
Mr. BASS. I think the evidence in most cases would be comparable to
the type of evidence used under current espionage prosecutions, and it
is almost a common-sensical type of evidence to the jury. That is, you
traditionally put on a Government witness who would testify based
on his knowledge, expertise and experience that disclosure of identities
impairs intelligence activities because it makes it more difficult for
agents who operate in clandestine undercover capacities to carry out
their activitiy if they are known than if they are unknown, and it is
a relatively simple element of proof, I think, for the Government to
meet. It does give the defendant an opportunity to come back and say
that is nonsense. The defendant could argue that in the course of this
case, this particular disclosure, he could not possibly have impaired or
impeded intelligence activities because the identities had already been
widely disseminated informally and unofficially throughout the coun-
try, everybody knew, common knowledge, at cetera, et cetera, and that
leaves it up to the jury to decide.
It does not seem to me to be a terribly difficult burden on the Gov-
ernment or an unusual one in these cases.
Mr. MAzzoI I. The gentleman's time has expired.
Let me recognize myself for 3 minutes and perhaps pursue one
point, or two.
First, do you think the FBI and other more broad definitions of
the covert agent should be in the bill? Do you have a position on that
or feel free to talk about it?
Mr. Bass. I think, Mr. Chairman, as a policy issue, it is clearly up
to Congress. As an issue of constitutional law, to me it is an analogous
and similarly difficult program. I don't think this problem of dis-
closure of identities is limited to intelligence agents. As the committee
may recall, a DEA informant was placed in a position of extreme
jeopardy by disclosure of that identity, and that was in a criminal
case. It has nothing to do with intelligence activities. The common
law has recognized informants' privileges, intended to protect the
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identity of informants, recognizing that they are indeed threatened
by unnecessary disclosures of their identity.
So I think the inclusion of FBI agents is entirely appropriate from
a constitutional standpoint. It does raise additional policy risks and
I think the risk of unconstitutional application of the statute is prob-
ably greater in the context of FBI activities within the United States
than it would be with respect to CIA or other foreign intelligence
agencies outside the United States.
Mr. MozzoLI. Thank you very much.
I would like to get back into what I had originally mentioned for one
final question, and that is that the intent standard which we have put
in the bill and appears in the version of H.R. 4 before us, was put in,
again, in an effort to be sure that we narrowed the focus and really
tried to get the bad guys and not the serious journalists or the people
who have some different political philosophy with the Government,
and let them do their number.
Your indication is that the double intent is too subjective and that
there needs to be a more objective standard, which is reason to believe,
and I would ask you, do you think eliminating the intent, the malicious
intent from 501(c) would snare serious people, serious journalists?
Mr. BASS. It might, and if it did, I think that is only the result of
the application of an even handed and equal justice. It is the same
first amendment for Sy Hersch as it is for Louis Wolf, and I don't
think that we can enact a statute or should enact a statute which says
that responsible or respected journalists have more first amendment
protection than irresponsible or critical journalists. If the risk is the
same, it is the same risk if the New York Times makes the disclosure
as it is if the Covert Action Information Bulletin makes the disclosure.
If it is unnecessary for the Covert Action Information Bulletin to
make those disclosures in order to carry out its journalistic purposes,
then it is equally unnecessary for the New York Times to do so, and I
don't think legitimate ]Journalists have anything to fear as long as they
exercise proper journalistic discretion when they make the disclosures.
If it is a case in which there is a clearly outrageous, illegal, politically
volatile situation of an abuse of power, I think a disclosure of an
agent's identity in that case will ultimately go unsanctioned, whether
it is by Covert Action Information Bulletin or the New York Times.
Mr. MAZZOLI. Thank you. My time has expired.
The gentleman is recognized for 3 minutes.
Mr. FOWLER. Mr. Bass, I am very interested in your alternative defi-
nition of the standard, but it looks to me like why would not the
example that you gave, even a television broadcast or a "serious" news-
paper story, a series in the New York Times, fall under your defi-
nition?
The New York Times runs a series of stories, it is a pattern of activi-
ties intending to disclose covert agents. They will, you know, they
decide that we have got a bunch of people in X country that are doing
something wrong, and in order to make the story appear as factual as
possible, they name names. They disclose. And it wouldn't be very
difficult to come up with a reason to believe that such disclosure would
cause injury or harm and impair the intelligence activities.
What is it that would protect that newspaperman from being cov-
ered by your standards?
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Mr. BASS. Mr. Fowler, in the two hypotheticals I presented, under
the version I am suggesting, both stories would be covered by the stat-
ute and both stories would be subject to prosecution, the well-intended,
establishment, if you will, New York Times story, as well as the ill-
motivated, critical story. Indeed, if the two stories appeared on the
same page in the same edition of the New York Times, on the op ad
page, they would both be sanctionable under the version I propose. I
think that is the proper result.
My concern is that under the present version, I believe only the story
which is intended to impair covert action would be sanctionable,
whereas the story which is intended to bolster and support covert ac-
tion would avoid prosecution, and that is a result I just don't see as a
fair, equitable, even-handed application of first amendment values
and concerns about substantive evils.
Mr. FOWLER. Well, just for purposes of discussion, because I do think
it is an intriguing example, I think that using any reasonable man
standard, a journalist of whatever stripe, using your analogy, would
have to be pretty naive to think that to do a story, even for the most
laudatory of motives, that that would not automatically, by those
revelations, make those agents inoperable, compromise cover, and im-
pair and impede the intelligence activities of the United States.
Mr. BASS. I agree.
Mr. FOWLER. So that in theory I understand that that might cause a
double standard. But I just think the chance of that happening is so
remote.
But be that as it may, I am still interested-and I tried when you
were discussing it, about the form of speech now. There isn't any ques-
tion of anybody, whether they are for or against this bill, that we don't
want to be in a circumstance where somebody can say that we are-
that the speaker is the one that has been classified, and that this catches
certain speakers who reveal, and would not catch others
Mr. MAzzoLI. The gentleman's time has expired. I'm sorry. If
Mr. FOWLER. Are we in a big hurry, Mr. Chairman.
Mr. MAZZOLI. Well, the only way to keep the thing moving is to stay
on time.
I would at this point yield myself 3 minutes, and I would recognize
the gentleman from Georgia if he wishes to use my 3 minutes to wind
up on that topic.
Mr. FOWLER. Well, I don't see any other questioners, so if I may
Mr. MAzzoLi. I yield 3 minutes.
Mr. FOWLER. Again, take me through what is it in the bill that is
now drafted that you think would not apply the standard equally to
anybody who made these revelations. That is the standard I could not
follow, when you were saying the Democrat said and the Republic
said, and this person or that person.
Mr. BASS. I think, Mr. Fowler, that particular example, the Demo-
crat or Republican example,. does not shed any light on the problem
with the bill as I see it.
The example I gave in my oral statement, that is, a simultaneous
publication of stories in the context of controversy over covert action,
one of which, driven by an intention to support-
Mr. FOWLER. Well, 'I understand that, but give me another example.
I understand that example, and I will admit to it, that to follow your
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theory, I think you are probably right, though a jury of reasonable
men might say otherwise. But I will concede that point, and if we
need another standard in 501 (c) to make sure that that kind of ac-
tivity is protected, then I think that we would be able to do that.
But you still come back-what I just want to make clear because
you have given a very intelligent presentation, obviously have worked
on an alternative standard to support your thesis, if there is anything
else in the standard that you think would criminalize the speech of
the opponents of CIA activities and not make that form of speech
criminal to any speaker?
Mr. BASS. No, sir. The only element in H.R. 4 that I think poses
that risk of improper discrimination is this element of intention to
impair or impede the foreign intelligence activities of the United
States. It appears, as the Congressman is aware, in two places in
501(c) as presently formulated, and I think the risk is the same in
both places. But it is the only element that distinguishes between
critics and supporters.
Mr. MAZZOLL My time has expired.
Congressman McClory, Mr. Bass could not be with us. His counsel
has two questions which, with the permission of the committee, he
will ask now.
He will be recognized for 3 minutes to ask the questions.
Mr. GOLDMAN. Doesn't the law distinguish in other ways, in other
areas, between people who commit acts with intent and people who
commit acts with other states of mind? For instance, if an individual
drives a car down the street drunk into a crowd and kills someone,
that would be reckless or negligent homicide, but if he intentionally
drives the car into the crowd, that would be murder.
What allows the Government to distinguish in that instance be-
tween the states of mind of the individual and prevents it from doing
so here?
Mr. BASS. I think the difference is the First Amendment. The other
areas in which intention is an element of the crime, insofar as I am
aware, are action crimes. They are not pure speech crimes. Indeed, if
one looks at the espionage laws which are frequently cited as sort of a
precedent for this type of legislation, the espionage cases that have
reached the courts have not been pure speech cases.
They have been cases of speech plus, if you will, or action cases
where information has been transmitted clandestinely to foreign
powers, and I think maybe even Mr. Justice Black's views of speech
versus action would recognize the transmission of information covertly
to foreign governments as action. It is not speech.
So I don't think one can draw much support for an intention ele-
ment from other crimes which are not pure speech content as this
statute is, because this statute as I have indicated earlier, does deal
only with speech, pure and simple.
Mr. GOLDMAN. You mentioned that the one thing we must look at
here is the risk of harm, and we must not distinguish on the basis
of what the intent of the individual might be.
Would it therefore follow under your analysis that if a risk of
harm came to not only an agent but to his family or to any other
individual, that that should be culpable under H.R. 4? For instance,
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67
if a disclosure is made that an individual in a country is a CIA officer,
and that person happens to be out of the country, but it is known to
the person making the disclosure that his family is there and then
the home is bombed, isn't the risk the same and therefore shouldn't
the penalty be the same ?
Mr. BASS. There certainly could be risk to others, and from a con-
stitutional standpoint. I think it comes close to the issues that have
been raised in the libel context where there is harm to an individual
caused by disclosures, and nothing to do with national security, and
Congress, if it saw fit, could regulate that form of activity. It relates
to a question asked of Mr. Warner in terms of false disclosures, the
injury to people that comes when their own careers, be it in the For-
eign Service or otherwise, are impaired by having been accused of
engaging in things that they have not engaged in, whether it is
intelligence activity or anything else. Mr. Korry is an example.
Certainly if that is a problem which Congress seeks to address, it
could do so, but perhaps more appropriately in that case, through
civil penalties than through criminal penalties, if it is an issue of
false identification.
Mr. MAZZOLI. The gentleman's time has expired.
Mr. Bass, thank you. You have been a stimulating and provocative
witness that caused us to put our thinking caps back on. We thank
you.
There may be some followup questions in writing, and we would
solicit your help on that.
Mr. BASS. Thank you, Mr. Chairman. I appreciate the opportunity
to testify.
Mr. AZZOLI. Thank you.
We now welcome a panel composed of Mr. Jerry Berman and Mor-
ton Halperin of the American Civil Liberties Union.
You gentlemen are welcome to come forward. They have been wit-
nesses before us many times, and in many cases have given us the
benefit of interesting and important evidence and helped us a lot in
drafting the bill.
I would like, as the Chairman's prerogative, to have a 2-minute
break at this point, just 2 minutes.
You gentlemen can be seated and we will be right with you.
[A brief recess was taken.]
Mr. MAZZOLI. The committee will now come to order.
As I mentioned a moment ago, we welcome Mr. Halperin and Mr.
Berman.
Gentlemen, you have been with us many times. You may proceed in
whatever fashion you wish, and we look forward to your testimony.
[The prepared statement of Messrs. Halperin and Berman
follows:]
STATEMENT OF JERRY J. BERMAN AND MORTON H. HALPERIN, AMERICAN CIVIL
LIBERTIES UNION
Mr. Chairman : We appreciate this opportunity to testify on the version of the
Intelligence Identities Protection Act as it was marked up and reported by this
committee in the last Congress and as it is before you again as H.R. 4. We appear
before you on behalf of the American Civil Liberties Union, which is a nonprofit
organization of over 200,000 members dedicated to defending the Bill of Rights.
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We would like, Mr. Chairman, to ask you to step back and to consider with us
what this legislation was designed to do and what it does do. Despite the diligent
efforts of the committee and its staff, the bill before you will not accomplish
what you seek-an end to the publication of the names of CIA employees. How-
ever, it will chill public debate on important intelligence issues and is unconstitu-
tional. This failure is not for lack of drafting skill ; it is because there is no
practical or constitutional way to accomplish the objectives of this legislation.
Thus, what we have is a bill which is merely symbolic in its protection of agents
but which does violence to the principles of the First Amendment.
The driving force behind this legislation is, of course, the desire of the Con-
gress to provide protection for Americans serving their country abroad under
cover and to prevent their identities from becoming known to foreigners who
may seek to harm them or neutralize their work. We do not condone the practice
of naming names and we understand Congress' desire to do what it can to protect
those serving abroad, sometimes in situations of danger.
However, the record on this issue as it has developed in hearings before two
committees of each House establishes clearly that most of the information Con-
gress is seeking to make a crime to publish is already available to the public.
The information which is needed to identify most of those whose names are
published, is available, the CIA now admits, from public sources-primarily the
Biographic Register and the diplomatic lists. The Biographic Register is, of
course, a United States Government publication whose back issues are available
in libraries around the world. Although the issues for the past few years have
not been released, the State Department has not classified them, and the Gov-
ernment may be forced to release them as a result of a pending FOIA lawsuit
brought on behalf of diplomatic historians. Simpson v. Vance, No. 79-1889 (D.C.
Cir., Sept. 25, 1980).
The techniques for determining the identities of CIA employees under light,
diplomatic cover from these publicly available sources have been explained in
several widely-published articles. Thus, nothing that Congress does now can
prevent any group in a foreign country which seeks to disrupt American intelli-
gence activities or to harm CIA employees from learning the identities of the
CIA employees stationed under diplomatic cover in its capital.
That the executive branch has failed to establish an effective cover system is
as clear as the need for better cover in the future, but no criminal statute passed
by Congress now, and necessarily limited in its application to Americans or those
in the United States, can prevent the release of identities abroad, where it could
pose a threat to the safety of agents.
While this legislation would not stop foreigners from learning the identities of
CIA employees under diplomatic cover, it would clearly succeed in chilling public
debate about intelligence matters in violation of the First Amendment. The legis-
lation before you could make criminal the publication of identities in circum-
stances fully protected by the First Amendment and in many circumstances
where the publication of intelligence identities is essential for understanding or
debating important public policy issues.
Although the rhetoric accompanying this legislation and the motive for it is
the desire to give protection to Americans serving the CIA abroad in a covert
capacity, the definition of covert agent is far broader. It includes foreigners
who may have served the intelligence agencies in the distant past and who are
now residing in the United States and it includes foreigners who may receive
support from the CIA to pursue their own objectives including leaders of for-
eign governments and foreign factions.
At the last moment in the 96th Congress the definition of covert agent was
expanded without any hearings to include FBI counterintelligence agents serv-
ing in the United States. Since such FBI operations are conducted without any
congressionally established standards and under guidelines contained in a se-
cret Justice Department directive, and, since the definition of covert agent could
apply to informants in organizations composed entirely of American citizens,
there is understandably grave concern about this addition. We urge the commit-
tee to look carefully at this issue and to exclude FBI informants operating at
home.
The committee has sought to narrow the scope of the legislation by requiring
proof of both a continuing effort to identify and expose covert agents and an
intent to impair or impede intelligence activities. Both of these additions are
commendable in that they narrow the coverage of the legislation. However,
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neither assures that the bill will not chill news coverage of intelligence activity
or public debate on intelligence issues.
The course of conduct required by the bill is precisely that engaged in by any
enterprising investigative reporter. A reporter doing a story on U.S. intelli-
gence activities will be engaged in an effort to uncover the identities of covert
agents. Moreover, many reporters have written articles or made comments
critical of some intelligence functions and would fear that a jury could be per-
suaded that their intent was to impair intelligence activities. Needless to say,
the First Amendment permits any individual to use criticism to inhibit the ac-
tivity of any agency of the government and to pursue that criticism by all lawful
means, including publication.
Mr. Chairman, the vigorous opposition to this bill on the part of every major
press organization should remove any doubt that its passage would chill public
debate. We offer two of many possible scenarios in the hope that it will lead the
committee to reconsider the bill's wisdom, or at the least to assure us that the
bill will be drafted more narrowly than it is now.
Assume in each case a reporter who has published several articles in a weekly
magazine of opinion calling for greater limits on intelligence activities. In the
course of researching the reporter seeks to learn the identities of covert agents :
The reporter suspects that the new administration in its eagerness to give aid
and assistance to the Savimbi-led effort in Angola has interpreted the Clark
Amendment to permit aid which is used for other than military operations. He in-
vestigates and then publishes a story that Savimbi is receiving such aid. He re-
ports also that the intelligence committees were not notified of the aid, in appar-
ent violation of the oversight provisions of the National Security Act as amended.
The reporter suspects that the FBI has infiltrated the Catholic Church, seek-
ing evidence that the Catholic groups opposing U.S. policy in El Salvador are
part of an international network controlled by Cuba or the USSR. She consults
with members of the church who search for and uncover the FBI informants in
the church. The newspaper then prints the story, giving their identities.
These scenarios and a number of others make clear that the scope of the bill
would often cover both legitimate newagathering activity and public debate on im-
portant intelligence issues. We understand the committee to be saying that it
has no intention of covering such situations, but the plain language of the bill re-
mains very broad and would clearly chill public debate.
Two efforts to deal with this problem were explored very briefly in the clos-
ing days of the session in the other body. The first was the language added to the
bill by the Senate Judiciary Committee and the second was the so-called Kennedy
compromise suggested by Senator Kennedy to the Department of Justice. Both
of these revisions were aimed at making it clear that the bill would not cover dis-
closures which are an integral part of an activity protected by the First Amend-
ment. If the committee remains determined to retain section (c), which we
strongly oppose, we urge you to give these proposals serious consideration. The
addition of language of this kind is essential to avoid interfering with news-
reporting and public debate and also to avoid grave constitutional problems if
section (c) is not dropped from the bill, as we advocate and as H.R. 2589 does.
The question of whether H.R. 4 and other versions of this legislation are con-
stitutional is one that has produced much debate ; we understand that you will
be exploring this question this afternoon. As you know, the overwhelming weight
of legal opinion outside the government is that the bill is unconstitutional because
it seeks to punish the publication of information derived entirely from public
sources. On his point we would refer the committee in particular to the testimony
of Floyd Abrams and to the letter sent to the Senate Judiciary Committee by
Professor Laurence Tribe of Harvard Law School. More than 60 law professors
told the House Judiciary Committee that they believed the text now before you
is unconstitutional.
It is by no means settled that Congress has any power to punish the publica-
tion of information by private citizens who have not had authorized access
to classified information. It is striking how infrequently Congress has sought
to legislate in this area. Indeed, only in the Atomic Energy statute, 40 U.S.C.
2274, and communications information statute, 18 U.S.C. 798, has Congress
sought to penalize such publication, and the constitutionality of those statutes,
as they purport to prevent publication by innocent Americans, has never been
tested.
Where Congress seeks to penalize publication of information it must at the
very least seek to draft a narrow statute serving an important interest and
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not covering activity protected by the First Amendment. In this regard, H.R.
4 seems most clearly unconstitutional in its coverage of situations where the
identity of an agent is derived entirely from public sources and particularly
when it is derived entirely from information placed in the public domain by
the government. Additional concerns center on the nature of the subjective
intent required.
In interpreting the espionage statutes, Judge Learned Hand overturned the
conviction of a German spy because all of the information that he analyzed
was from public sources.' Indeed, what Heine, the convicted German spy, did
was the same as what those who publish names now are said to do ; he read
published material and conducted private investigations without trespassing
or violating other laws. Although it can be argued that Heine simply involves
statutory interpretation, analysis of published information cannot constitu-
tionally be made a crime, even where deliberately undertaken to aid a hostile
foreign nation.
More recently, the Supreme Court, in several cases outside the national secu-
rity area, has struck down statutes that seek to restrain or punish the publica-
tion of information derived from information placed in the public domain by
the government' A number of constitutional scholars, including Professor Tribe
and Professor Thomas Emerson of Yale, as well as Floyd Abrams, read those
decisions as prohibiting punishment of the publication of information derived
entirely from public sources.
The very serious problems raised by efforts to punish disclosures based on
public sources is compounded by the novel language in the bill related to the
bad purpose which must be demonstrated. As the Supreme Court suggested in
Gorin v. United States,3 a statute which might otherwise be held to be over-
broad or vague and therefore unconstitutional in As prescription of certain ac-
tivities might be cured by requiring that the activities be undertaken for a bad
purpose. However, the bad purpose required by the existing espionage statute
is, in critical respects, different from that contained in H.R. 4.
The bill now before you requires proof of an intent merely to impair or
impede intelligence activities, while all of the previous statutes enacted re-
quire proof of an intent to injure the United States or give advantage to a
foreign power. We believe that this distinction is crucial.
As the Justice Department testified in the last Congress, one has a clear
constitutional right to impair or impede intelligence activity by speaking and
writing about such activities on the basis of lawfully acquired information. A
statute that makes such an intent the test of criminality would discourage
people from doing what they have every right to do, i.e., seek to impair or
impede specific intelligence activity by wirting and speaking. The cure, however,
is not to strike the requirement of a bad purpose, as the Justice Department
has argued and as the bill now before the Senate does. The absence of a bad
purpose renders the bill both vague and overbroad because one cannot easily tell
which disclosures are covered. Thus, the bill reaches conduct which is fully
protected by the First Amendment and cannot be made Criminal.'
Mr. Chairman, we cannot close without reiterating our respect for the efforts
by the committee to develop a constitutional bill. We are confident that you
have failed only because you set out to do the impossible.
AMERICAN CIVIL LIBERTIES UNION,
Washington OBlce, April 1981.
To : Interested parties.
From : American Civil Liberties Union.
Re: Questions and answers concerning the constitutionality of H.R. 4 (Intel-
ligence Agents Protection Act of 1981).
Four questions have been raised about the constitutionality of the bill:
1. Can Congress establish criminal penalties for the publication of national
security information?
1 United States V. Heine, 151 F. 2d 813 (2d Cir. 1945).
2 Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975); Oklahoma Publishing Co. v. Dis-
trict Court, 430 U.S. 308 (1971) ; Landmark Communications v. Commonwealth of Vir-
ginia, 435 U.S. 829 (1978) ; Smith v. Daily Mail, 443 U.S. 97 (1979) ; and Houchina v.
KQED, Inc., 438 U.S. 1 (1978).
312 U.S. 19 (1941).
* For further discussion, see attached memorandum from The American Civil Liberties
Union, re : The Constitutionaity of H.R. 4 (Intelligence Agents Protection Act of 1981).
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2. Is a statute constitutional which on its face prohibits publication of infor-
mation as a part of a protected First Amendment activity?
3. Can Congress establish criminal penalties for the publication of information
derived entirely from public sources?
4. Does the bad purpose required by the bill-"intent to impair or impede
intelligence activities"-cure the problems of constitutionality raised by the
other questions or does it compound the problem?
CAN CONGRESS ESTABLISH CRIMINAL PENALTIES FOR THE PUBLICATION OF
NATIONAL SECURITY INFORMATION?
Only in the statutes relating to atomic energy and cryptography has Congress
explicitly made publication of national security information a crime. Whether the
general espionage laws cover publication has been a matter of considerable de-
bate. The Justice Department asserts that it does, but most scholars agree with a
comprehensive Columbia Law Review article' which concluded that Congress
did not intend to cover publication.
Daniel Ellsberg is the only American ever indicted for actions intended to lead
to the publication of national security information. Because the Ellsberg case
was dismissed before going to the jury, there is no appellate court decision on the
constitutionality of the statute as relates to publication. There are no other
Supreme Court decisions which shed much light on this question.
The Justice Department has consistently argued that Congress can penalize
the publication of information provided the statute is otherwise narrowly drawn.
Many others take the position most recently expressed by outgoing Associate At-
torney General John Shenefield in urging Congress to limit this legislation to for-
mer officials : "The Constitution envisioned that the press would provide the pub-
lic with such of the government's secrets as should come its way, including secrets
that are arguably harmful to genuine security concerns."
IS A STATUTE CONSTITUTIONAL WHICH ON ITS FACE PROHIBITS PUBLICATION OF
INFORMATION AS A PART OF A PROTECTED FIRST AMENDMENT ACTIVITY?
Although it is often stated that the bill is not intended to cover the activities of
the press and those who may disclose names in the context of a news story, in
fact the statute on its face covers the activities of the press and those exercising
their right to criticize government policy.
The Justice Department originally argued that there was a serious overbreadth
problem, but then testified that the requirement of "a course of conduct" cured
the problem. Since the course of conduct required is one that investigative report-
ers routinely engage in, it is not clear how this addition cures the overbreadth
problem, and the Justice Department has never spelled out its reasoning.
In any case, the statute would impermissibly chill public debate and freedom
of the press because of its scope. The Senate Judiciary Committee sought to cure
this problem by stating explicitly that publication which was an integral part of
a First Amendment activity would not be covered. Senator Kennedy then offered
a compromise which was intended to have the same effect. Justice did not express
any formal position on this proposal.
CAN CONGRESS ESTABLISH CRIMINAL PENALTIES FOR THE PUBLICATION OF
INFORMATION DERIVED ENTIRELY FROM PUBLIC SOURCES?
The statute is explicitly drafted to cover situations where the identity disclosed
is derived entirely from public sources, and even when the identity is derived
entirely from official U.S. Government publications.
In a 1945 case involving a German spy active inside the United States during
World War II, United States v. Heine, Judge Learned Hand reversed a conviction
under the Espionage Act because the spy had only examined information which
was publicly available. Even though Heine had rearranged and analyzed the
information so that it was much more useful to the Germans, Hand held that he
must go free. Hand's opinion can be read as simply being an interpretation of
Congress' intent under the espionage laws ; however, most scholars have concluded
that the opinion has constitutional overtones and raised doubts about whether
Congress can make it a crime to rearrange public information.
Most of these who have argued that Congress cannot make it a crime to punish
disclosures based on public information have relied on Heine than on a series of
i Edgar & Schmidt, "The Espionage Statute and Publication of Defense Information," 73
Col. L. Rev. 929 (1973).
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72
cases outside the national security area which struck down statutes which punish
disclosure of information obtained lawfully from information disclosed by the
government. First Amendment scholars have read these cases as establishing a
rule that what the press learns (at least from information made public by the
government) it imust be free to publish.
DOES THE BAD PURPOSE REQUIRED BY THE BILL-"INTENT TO IMPAIR OR IMPEDE
INTELLIGENCE ACTIVITIES"-CURE THE PROBLEMS OF CONSTITUTIONALITY RAISED
BY THE OTHER QUESTIONS OR DOES IT COMPOUND THE PROBLEM?
The committee included a requirement of a bad purpose in the legislation in an
effort to overcome the constitutional problems discussed above. Questions have
been raised not about the need for such an intent requirement but whether it
cures the other problems and whether the bad purpose required is an appropriate
one.
The requirement that the individual intend to impair or impede intelligence
activity has no counterpart in any other statute. All of the existing statutes, even
those which cover a specific category of information such as atomic energy, refer
to injury to the United States or advantage to a foreign power rather than injury
to a particular program.
The difficulty with the language in the bill, as the Justice Department points
out, is that it could well chill speech. A reporter, for example, who thought that
he might want to include one or more names in some future story would be
reluctant to write an opinion piece expressing the view that some intelligence
activities should be curtailed.
Others who agree that the existing bad purpose language raised difficulties do
not agree with the Justice Department that the solution is to eliminate any
requirement of bad purpose. Rather they suggest that language of the kind used
in previous espionage statutes should be substituted. One possibility is the lan-
guage which the Supreme Court in the leading espionage case (Lorin) not only
found to be constitutional but also to cure the potential overbreadth problems
created by the rest of the statute. That language reads :
with intent or reason to believe that it is to be used to the injury of
the United States or to the advantage of a foreign nation, communicates, ..."
MATERIALS CITED IN THE MEMORANDUM
STATUTES
Atomic Energy Statute, 40 U.S.C. 2274. Cryptography Statute, 18 U.S.C. 798.
Espionage Statute, 18 U.S.C. 794.
Edgar & Schmidt, "The Espionage Statute and Publication of Defense Infor-
mation," 73 Col. Law Rev. 929 (1973). Shenefield, John, "Intelligence at a Time
of Transition," remarks before NYU Public Policy Series, Nov. 20, 1980.
Espionage.-Gorin v. U.S., 312 U.S. 19 (1941). U.S. v. Heine, 151 F.2d 813
(1945).
Public Domain.-Cos Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). Okla-
homa Publishing Co. v. District Court, 430 U.S. 308 (1971). Landmark Com-
munications v. Commonwealth of Virginia, 435 U.S. 829 (1978). Smith v. Daily
Mail, 443 U.S. 97 (1979). Houchins v. KOED, Inc., 483 U.S. 1 (1970).
Overbreadth.-Village of Schaumburg v. Citizens for a Better Environment,
444 U.S. 620 (1980). Grayned v. City of Rockford, 408 U.S. 104 (1972).
STATEMENT OF JERRY J. BERMAN, ESQ., AND MORTON HAL-
PERIN, AMERICAN CIVIL LIBERTIES UNION
Mr. HALPERIN. Thank you, Mr. Chairman.
I want to begin by expressing our appreciation for the careful con-
sideration that this committee has given this bill in the past session and
in this session, and to say that we believe that substantial improve-
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ments have been made from the original version which has narrowed
the point of controversy, and we appreciate those efforts.
I want to make three points. They are in the statement, but I will
try to make them briefly.
First, it is our view that the statute will not work to accomplish
what we understand to be its primary purpose. If the purpose is to
keep those in foreign countries who might do harm to foreign agents
or foreign intelligence activities from learning the identities of CIA
employees abroad, we submit that the statute will not do that and can-
not do that. The information which is necessary to identify CIA
employees serving in embassies is available overseas, in the Biographic
Registers, in the diplomatic lists and so on. Any foreign group,
whether it is a foreign government or a terrorist organization, that
wants to do harm to Americans serving abroad in embassies can learn
those identities; this legislation simply cannot stop that in any effec-
tive way. That can only be done by providing more effective cover.
Therefore, we believe that this legislation is essentially symbolic. I
think the testimony today and yesterday supports that, that the pur-
pose of the legislation is to express the concern of the Congress that
these lists not be published, that Congress be seen to be doing some-
thing to stop the publication of these lists. We understand that con-
cern, and I think it is a legitimate one, but I think we have to proceed
with the understanding that that is what we are talking about here.
We are not talking about something which will actually keep a Greek
terrorist organization or a Jamaican terrorist organization or the
Mozambique Government or any other government from learning
identities if they want to learn them.
Second, it is our view that this legislation in its current form will, in
fact, chill legitimate debate on intelligence issues, that it does cover
many situations in which the publication of names is necessary for
news stories.
Now, I agree that publishing lists of names does not accomplish, as
far as I can tell, any first amendment purpose. But the statute is not
limited to cases in which lists of names are published outside of stories.
It includes situations where even a single name is published in the con-
text of a story; if it is part of the pattern of activities, if there is the
necessary intent.
We have presented many such episodes in our previous testimony.
We have some in this testimony. We can find no way in which those
episodes and those hypothetical examples and the real historical exam-
ples are not covered. If the committee believes that they are not cov-
ered, we would urge you to change the bill to make that clear, or at the
very least, to do what was not done last year, which is to explain in the
committee report that those episodes are not covered, and to explain
why they are not covered so that you give guidance to the court in in-
terpreting. the statute as to what the language intends and why it is
and how it is that you do not intend to cover the situation of Powers or
Pope or the hypotheticals that are in our testimony.
Our third point is that the bill, as now drafted, is unconstitutional.
Now, it is the position of the American Civil Liberties Union that no
legislation that purports to punish the publication of information
relating to national security can constitutionally be made a crime, and
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in that sense I guess we plead guilty to the charge that we are first
amendment absolutists. I would point out that there is no court deci-
sion on that issue at all. There is no court decision that I am aware of
either upholding or challenging or overruling a statute which punishes
the publication of information relating to national security. Daniel
Ellsberg is the only person in the history of the country who has been
indicted for publishing information relating to national security, and
of course that case did not go to a conclusion. So there are no cases. I
agree that it is an open question.
But our position on the unconstitutionality of this statute does not
rest on that "absolutist" position. It rests rather on the assertion that
if Congress is going to legislate to make it a crime to publish informa-
tion, the statute must do three things. One, it must limit itself to access
to classified information, information which the Government has suc-
ceeded in keeping secret. There must be some unauthorized access to
that which the Government seeks to keep secret. Second, it must relate
to some precise and specific and immediate injury to the United States
or to its employees, such as physical jeopardy to the lives of agents.
And third, there must be a bad purpose. That is, the disclosure must
be made for a purpose which is illegitimate and which Congress can
in fact punish.
This brings me to comment on what Mr. Bass has said. I think that
I would agree with everything that he says except the solution for it.
He says that you cannot have a statute which distinguishes among
people on the basis of first amendment beliefs, so that the distinction
that he draws between driving the car into the crowd intentionally or
unintentionally, and what is in this bill is that you don't have a con-
stitutional right to drive into a crowd. The problem with this bill is
that the bad purpose which is included here, namely, the intent to
impair and impede intelligence activities is one that one has a constitu-
tional right to engage in by speaking or writing. The Congress cannot
make the distinction between those who are covered and not those who
are covered, an activity such as being a Democrat or Republican, or
advocating by speech the impairment of particular inteligence activi-
ties.
Therefore, I would suggest that the cure to the problem is not to
eliminate the need for a bad purpose, because I think that would make
the bill unconstitutional, it would make it absolutely clear that it
covered the legitimate news stories that the committee has been trying
to avoid. I think the solution to that is in the espionage laws. Congress
has on many occasions dealt with the problem of bad purpose. The
Supreme Court has dealt with it in the Gorin case. There it said that
it was the bad purpose that cured the problem of overbreadth, but the
bad purpose in that case was injury to the United States or advantage
to a foreign power.
If we are talking about situations where somebody gives the name
of a covert agent to a foreign government so that they can expel Ameri-
can intelligence officers, or gives the name to a foreign terrorist group
so that they can do injuy to the person, that is giving advantage to a
foreign power, and those situations I think would be covered. You do
not have a constitutional right to injure the United States or to seek
to give advantage to a foreign country that might injure the United
States with that information.
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So I would urge you to keep the bad purpose in the bill. I think it is
essential to the bill's constitutionality, but to make the bad purpose
one which is not an activity protected by the first amendment.
I just want to make two other points about things that have come up
in the course of the last 2 days. First, as to the question of false identifi-
cation, I would point out that including false identification, at least
within the context of the current statute, would eliminate half of that
famous list of protections that are now in the bill. Under the bill as now
written, the Government must prove that the disclosure identifies a
covert agent, and that the United States is taking steps to protect the
identity of that agent. That is, the Government cannot prosecute you
for revealing an identity if it hasn't done anything to protect it.
Well, if the identity can be true or false, all of those protections go.
If you simply name a person in a story, the Government no longer has
to prove that it was protecting the person because he could take the
position that this is a false identification, and therefore you don't get
any of those protections.
I think that if the statute was rewritten so that it limited itself to
disclosures which placed lives in jeopardy, which seems to be at'least a
primary purpose of this legislation, and which the majority leader
seemed to be focusing on in his discussion, then including true or false
in the context of a statute which required evidence of an intent or risk
of jeopardy to lives would, I think, be an approach that would be worth
looking at. But where you are not talking about that specific kind of
injury, I think adding false identifications would raise very serious
constitutional and practical pro blems.
As far as attempts are concerned, I would offer the committee the
prediction that an attempt to write in an attempt section as regards (a)
and (b) would make those sections, which thus far have been noncon-
troversial or relatively noncontroversial, controversial, because in the
area of speech crimes-and as has been pointed out here, we are talking
about speech crimesuestions of adding attempt raise much more
serious questions than in the case of action crimes. If you attempt to
murder somebody, you are taking steps, physical steps to do it. If you
are talking about an attempt to speak, it raises, in our view, very seri-
ous constitutional issues. So we would urge you to avoid getting into
that dilemma.
Finally, I would point out in connection with (a) and (b), we are
not attempting to reargue the Snepp issue. The Snepp issue had to do
with people that were placed in positions of trust, and we have not
objected to the sections of this bill that deal with people who were
placed in positions of trust. The Snepp decision did not go to and has
no relation, as far as I can see, to situations covered by (c) where indi-
viduals are not in positions of trust.
Let me conclude as I began by expressing appreciation for the care
with which the committee has been proceeding, and we would be, of
course, delighted, Mr. Berman and I, to answer your questions.
Mr. MAZZOLI. Thank you.
Mr. Berman, did you have anything you wish to say 8
Mr. BERMAN. If there's a couple of minutes.
Mr. MAZZOLI. Certainly.
Mr. BERMAN. I just want to emphasize, I think, the three points that
Mr. Halperin has made. One, in terms of the argument that it is not
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going to solve the problem, we are referring to testimony by the CIA
last year before the House Judiciary Committee where the CIA testi-
fied that because of disclosure of sensitive information, the public has
become aware of indicators in these documents that can sometimes be
used to distinguish CIA officers, and that at another point, that other-
wise it is from and I quote,
A regurgitation of some compendium, others could be taken from reports or
other kinds of documents that may have been unclassified context. In short, what
they are taking it from is a garden variety biographical compendium.
So foreign groups can have access to this information even if this
legislation is passed.
The second goes to the overbreadth of the bill. Yesterday Mr. Wil-
lard testified that even where there was a bad purpose and there was
a disclosure, an intent to impair or impede, or there was a disclosure
of illegal activity by a newspaper publisher, that that would he covered
under the bill.
Third, there is the problem that the bill is not limited to CIA officers.
There was an original purpose, to protect CIA officers serving abroad.
Yet, as we read the bill, it covers foreign leaders, sources of opera-
tional assistance abroad, which I think could have a greater impact
on public policy discussion. So that, for example, a disclosure by the
New York Times that an illegal covert operation was going on in An-
gola today and aid was, for example, being provided to the Savimbi led
faction would be covered under this bill. So that I think there is over-
breadth, it is not going to solve the "cover" problem, and I don't think
that it is narrowly drafted to solve the constitutional problems.
Mr. MAZZOra. Thank you very much, gentlemen, and let me say as I
begin my 5 minutes of questions that-and I say this sincerely. We may
not always agree, and we haven't, certainly, over the years, but in each
and every case you have come in well prepared, you have given us food
for thought, and I think as a result of that, the bill is in, I think every-
body would say, admittedly a better position than it was in before we
began this exchange 2 years ago.
Having said that, let me perhaps, Mr. Halperin, start with von. Your
first point is that it won't work, and you suggested that maybe cover is
underneath this all, one of the major problems.
I would ask you a twofold question. What kind of cover and what
changes in cover would you suggest, which is not an either/or proposi-
tion, and we may have to get into this even if H.R. 4 passes.
And second, would you answer the contention of Mr. Warner and
others that just changes in cover may not be totally enough to solve
the problem?
Mr. HALPERIN. Well, let me start with that. I think that is true.
Given that for various administrative and procedural reasons, the
CIA wants some of its employees functioning out of Embassies, I think
cover can never be absolute. When you are putting somebody in an
Embassy in a cover job, you have the problem of his career pattern
and so on, and I think you cannot provide absolute cover, and often
you don't want to. Allen Dulles writes in his memoirs, for example,
that I wanted everybody to know that I was the OSS person in Switz-
erland because then they came to me with information. And often
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station chiefs are in the same position, they want the press to come to
them for background, they want people to come to them with informa-
tion so that you can't provide absolute cover for those people.
But I think the Government can do more than it has in the past. It
can, for example, not publish compendiums of data on the backgrounds
and lives of people in the Biographic Register, which is the major tool
that is used for this purpose. And if that volume in fact helps to
identify covert agents, it can classify it, which it still has not done for
reasons that are not entirely clear to me.
So I think that is one kind of step that can be taken, and there may
in fact be others which involve CIA people when they are home not
revealing the fact in their private lives that they are CIA agents,
which again could be used when they go overseas.
It would add to the administrative inconvenience, and I think there
is clearly a tradeoff there, but I think the Government has the obliga-
tion to do that before it comes in and asks for legislation as that applies
to the press.
Mr. MAzzoLI. Well, let me just say I would appreciate any advice
you can give us, because cover will be-if the bill passes, the President
will be discussing the matter. We have had some discussions in our
committee.
I assume that you would not extend the possibility of cover to aca-
demics or clerics or news people?
Mr. HALPERIN. No. Indeed, I would urge you to prohibit such.
Mr. MAZZOLI. Your second point of contention was that H.R. 4 would
chill legitimate debate on intelligence matters, and you suggested that
sometimes naming names is necessary. And Mr. Berman a moment ago
suggested that in the case of the leader of Angola, of the opposition
leader, if aid supplied, let me ask both of you maybe to address the
point. I am not convinced-and you have heard me say this before-
that you need to name names in order to convey dissatisfaction with
the national policy, in order to dismantle this policy.
Tell me why you have to name names, and I would only say one
thing. In Angola you have got two leaders, the leader of the ins and
the leader of the outs. So if you say the leader of the out party, you
know, in a sense it is naming without naming, and you could still
probably write your story.
Mr. HALPERIN. That would be covered.
Mr. BERMAN. That would be covered.
Mr. HALPERIN. Because it says reveals any information that identi-
fies a covert agent. In other words, if the statute said
Mr. MAZZOLI. That would be a much different situation there than
with names, but tell me about the naming of names, and why is it so
essential ?
Mr. HALPERIN. Well, let me say, I think if the bill was limited to
CIA employees serving under diplomatic cover in embassies, the
number of cases in which naming a name would be essential to the
story would be quite small. If you had that very narrow definition,
which is what we think of the bill being about, and what those lists
of names are that are in the magazines, I think one could invent cases,
I think there are some cases where publishing names lends credibility
to the story.
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If you say, for example, that the CIA may be planning covert inter-
vention in country x, and one of your pieces of proof is that nine new
CIA employees have been sent to the embassy, the credibility of that
story is substantially increased if you say and the names of those
nine people are the following.
So one could imagine stories in which that is true. But I think a
substantial portion of the problem comes from the fact that the defi-
nition of covert agent is substantially broader than CIA employees
serving under diplomatic cover in embassies.
Mr. MAZZOLT. So your suggestion, if I understand it, is that if you
change the definitions, this would solve some of the problems?
Mr. HALPERIN. Yes ; absolutely.
Mr. BERMAN. Yes.
Mr. MAZZOLL My time has expired.
The gentleman is recognized for 5 minutes.
Mr. FOWLER. Gentleman, are you saying that if we put a test in that
said all disclosures which put lives in jeopardy, that you would
support that as the test? Is that what you testified?
Mr. HALPERIN. Well, I think I have to say, speaking on behalf of
the ACLU, that I am not sure we would ever reach the point where
we would support any legislation. But I think the vigor of our opposi-
tion might well vary.
Mr. FowLER. Breaking out of the institutional symbolic, ideological
boundaries which contain us all, I am interested in that.
You said all disclosures which put lives in jeopardy, that would
cure the true or false accusation problem.
Mr. HALPERIN. Right.
Mr. FOWLER. But would it not be also an essential test that would
cure the majority of your other criticisms, and if that is true-and
I will try to get it all in here
Mr. BERMAN. It becomes a solution as long as it doesn't become
501 (d) of the bill. In other words, let's not keep adding on.
Mr. FOWLER. But would not that also specifically, to address the
point-and I am serious-would not that also, would not the mere
revelation of an undercover agent of this country automatically be
a disclosure which put his or her life in jeopardy?
Mr. HALPERIN. Not necessarily. For example, the statement the
Washington Post made a year or two ago that Willy Brandt many
years ago received CIA support was published in the newspaper, was
widely believed. I don't believe it placed his life in jeopardy. The
statement that the CIA burglars had previously worked
Mr. FOWLER. Had not placed whose life in jeopardy ?
Mr. HALPERIN. Mr. Brandt, but he is covered by the bill.
Mr. BERMAN. He is covered by this bill. He is a covert agent under
this bill.
Mr. HALPERIN. Absolutely covered by this bill.
Mr. FOWLER. Where?
Mr. IALPERIN. The definition of covert agent in the bill is an indi-
vidual other than a U.S. citizen whose past or present intelligence
Mr. FOWLER. Where are you reading? I have got the bill?
Mr. HALPERIN. Section (c), 506(c).
Mr. FOWLER. 506?
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Mr. HALPERIN. 506 (4) (c).
Mr. FOWLER. All right.
Mr. HALPERIN [reading] :
All Individual other than a U.S. citizen whose past or present intelligence
relationship to the United States is classified, and who is a present or former
agent of, or a present or former informant or source of operational assistance'to
an intelligence agency.
Now, I don't know whether the story is true, and I don't mean to
confirm it, but if Brandt in fact received money from the CIA to do
things for us, he is either an informant or a source of operational
assistance. There is no time limit on that. He is covered forever. And
I don't think his life was placed in jeopardy.
Mr. BERMAN. That is why we keep mentioning the King Hussein
story. He is covered as a source of operational assistance who re-
ceived
Mr. FOWLER. Well, I'm not sure I agree with that. But let's leave
that for a second.
Mr. HALPERIN. We would be delighted to have you change the
definition so it clearly excluded those people, but I would say that if
you required an intent to jeopardize lives or reckless disregard that
the disclosure would jeopardize lives, you would be legislating with
a very narrow, specific purpose of defending U.S. Government em-
ployees sent overseas in situations where their lives might be laced
In jeopardy, and that that would in fact clear a substantial portion of
the problems.
Mr. FOWLER. And you are saying that an intent to disclose-you
support the intent standard in the bill.
Mr. HALPERIN. Well, we think there needs to be, there has to be an
intentional disclosure andwith a bad purpose.
Mr. BERMAN. A narrow, bad purpose which would be placing some-
body's life in jeopardy. Recklessly placing somebody's life in jeop-
ardy with intent to impair or impede intelligence activities can cover
criticism of illegal intelligence activities.
Mr. FOWLER. You don't think that the deliberate, intentional dis-
closure of an undercover CIA operative would not result in the bad
purpose of injury to the United States?
Mr. HALPERIN. Well, if it did and the Government proves that-
Mr. FOWLER. Well, ipso facto, whatever the Latin is, what. am I
looking for, ab initio, instanta.
Mr. HALPERIN. Well, I think you may be right. What I am saying is
constitutionality. There is enormous difference in my mind between
placing lives in jeopardy or injuring the United States or giving ad-
vantage to a foreign power and the new standard which has been
invented for this bill of the intent to impair or impede intelligence
activities. If you go back to the first two which have frequently been
used and which are standard in the statutes, I think that they substan-
tially reduce the constitutional problem.
Mr. MAZZOLI. I'm sorry, the gentleman's time has expired.
We will have a second round. I recognize myself for 5 minutes.
I believe, Mr. Halperin, if I got my notes correctly there, you said
that Congress-and we talk about the bad purpose, and that Congress
cannot make as an illegal and therefore bad purpose, the impairing
or impeding of national intelligence, or of the intelligence function.
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Am I correct in that?
Mr. HALPERIN. Well, the specific intelligence activities, which is
what the bill does, impair or impede intelligence activities.
Mr. BERMAN. We are talking in the context of public information
or which is, I think, arguably in the public domain. There is a born
classified part of this which cannot be ignored.
Mr. MAZZOLI. Maybe that is the part I don't understand, because it
seems to me that the Congress could declare illegal the fact that some
individual, for whatever righteous or miserable motive is going to
destroy the nation's intelligence capability, and it would seem to me
that we could make that illegal.
Mr. HALPERIN. Well, you can make physical acts that do that illegal.
I don't think there is any question about that. You can make a con-
spiracy to do things illegal. But if you are talking about speech and
you have an article that is written and the intent to narrow the scope
of this statute is by talking about the purpose with which the person
speaks, that is the standard that determines whether the persons con-
duct is illegal.
Mr. MAZZOLI. So we don't have a bad purpose, in your judgment, by
simply saying impairing or impeding national intelligence.
Mr. HALPERIN. No ; because I think you are entitled to have that. I
think you are entitled to utter statements whose purpose it is-
Mr. MAZZOLI. For the purpose of impairing or impeding, of destroy-
ing, not just for
Mr. HALPERIN. If it is destroying the intelligence of the country, if
my purpose-as I understand this bill, if my purpose is to say that we
should not be conducting a covert operation, the specific covert op-
eration of overthrowing the current Government of Nicaragua or
Britain, that you have a right to speak out and say I don't think we
ought to be trying to overthrow, you know, the British Government,
and the Congress cannot make it a crime to do that.
Now, if you are talking about destroying the intelligence of the
country overall, then I think you are talking about injuring the United
States or giving advantage to a foreign power, and that I think Con-
gress can make it a crime. I think that is a bad purpose which the Su-
preme Court has said makes the statute constitutional.
Mr. MAZZOLI. But you say that is not the bad purpose which you
find in this bill.
Mr. HALPERIN. Yes; because it talks specifically about impairing,
for the purpose of impairing or impeding the foreign intelligence ac-
tivities of the United States, and as I understand the testimony, that is
meant to include impairing a specific intelligence activity, overthrow-
ing a particular Government, infiltrating a particular domestic or-
ganization, and that I think, those things you are entitled to do.
Mr. MAZZOLI. Well, it would seem to me that making the bad pur-
pose, targeting on the reckless disregard for the health and well being
of an agent abroad, an officer, or intentionally releasing information
which causes harm would be really easier. It would seem to me that if
I were a prosecutor, I would rather have a case like that than to try
to go in and talk about impairing and impeding national security or
whatever. I mean, we set this up, of course, with the idea that in the
501(c) cases we are on that border which we don't want to step across
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81
if we need to to get the legitimate, even though I would very de-
lightedly get the Covert Action Information Bulletin. But we stood
this side of the line by having two very hard intents to prove and
patterns to prove and a lot of other things, and I think as a prosecutor
I would like to take the case of whether or not, as my friend from
Georgia said, ipso facto, as you have revealed the name., you are jeop-
ardizing that person's health.
Am I right or wrong? Do you think that would be an easier case
to make ?
Mr. BERMAN. Maybe in some circumstances it would be an easier
case, but overall I think it narrows the focus of this bill, and we have
discussed, you know, recommended or talked to the Justice Depart-
ment about why they don't consider this possibility, and they have
always rejected it on the ground that it is for some reason more diffi-
cult to prosecute.
Mr. HALPERIN. I think I would also say what Ken Bass said, that
the criteria for the constitutionality of a statute is not whether it
makes it harder or easier to prosecute somebody in a particular case; it
is whether it makes conduct a crime which can constitutionally be made
a crime.
Mr. MAZZOLI. My time has expired.
The gentleman is recognized for 5 minutes.
Mr. FOWLER. Can the Congress, in your opinion, constitutionally do
the following: State that it is in the national security interest of the
United States for us to have undercover operatives abroad in order
to provide our Government warning of possible enemy activities
against our citizens? And because it is in that interest, we make it
specifically a crime for anyone under our jurisdiction, under the laws
of our country, to publish the names of any such person?
Is that constitutional?
Mr. HALPERIN. No.
Mr. FOWLER. Why?
Mr. HALPERIN. Well, substitute for the name information which
makes it harder to conduct that activity, and then I think-which is
constitutionally the same thing-what you have done is to say that
because Congress thinks a particular activity is important to the na-
tional security, you can't publish information which interferes with
that activity. If you can do that about covert intelligence op-
erations-
Mr. FOWLER. You have lost me.
Mr. HALPERIN. Well, if you can do that about
Mr. FOWLER. Why isn't it-by Congress defining the fact, including
in the definition that the mere fact of this person's activity and the
reasons for this person's activity being in the national interest not to
be revealed, therefore, without any intent, without any anything, just
say thou shalt not publish that man's name? Where is that protected?
Mr. HALPERIN. By the first amendment, because what it is saying
is that-suppose Congress decided you needed a draft and passed a
statute drafting people, and it said that anything which interfered
with the draft interfered with the national security, and I wrote an
article saying the draft is bad, we should not have a draft
Mr. FOWLER. No, I may be-I just don't see how that is relevant to
this. We are not talking about whether or not the intelligence activity
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of the country is right. They can write all the articles in the world
about whether there ought to be a CIA, whether or not there ought
to be a CIA operating in Britain, whether or not you ought to have
more blacks or Jews or Greeks in the CIA, they can write about any-
thing, have a complete national debate on any purpose, whether or not
it is in our national security or not, but I don't see anything uncon-
stitutional in the Congress defining the fact that we have a CIA in the
embodiment of this person who has to be protected or the whole pur-
pose of the CIA has been vitiated, then with that preface in the law,
that this is the reason, it seems to me that you can say you shall not do
it.
Mr. HALPERIN. But then suppose Congress also decided that pub-
lishing the fact that we have a covert operation in a particular
country
Mr. FOWLER. Well, again, I would never support that. There is no
question about that.
Mr. HALPERIN. But then you are saying there is something different
about the names.
Mr. FOWLER. Yes.
Mr. HALPERIN. I am saying what is different about the names
Mr. FOWLER. And you can define it by any sort. You can define it by
the nature of their business, that is, dangerous and subject to jeopardy,
and their families, you can define it in the national interests of the
country. You can define it all without ever getting into all of this in-
tent stuff unless you are trying to tell me-and again I guess we are
back to the pure speech question, that our country-I mean, what can
our country and the embodiment of the Congress say thou shalt not do,
thou shalt not publish? Is there anything?
Mr. BERMAN. Troop movements in time of war.
Mr. HALPERIN. I think information that is narrowly drawn.
Mr. FOWLER. It couldn't be more narrowly drawn than the name of
a person. How do you get more narrow than that?
Mr. HALPERIN. I think there has to be a bad purpose.
Mr. FOWLER. There is unquestionably, there has to be a-there is a
bad purpose.
Mr. HALPERIN. Well, I think you have to prove it.
Mr. FOWLER. Well, let's not argue that because I don't see any way
around. We have got a bad purpose to protect lives, the national se-
curity. You have got jeopardy to the United States, injury to the
United States. I mean, I don't see where there is any room to argue.
I mean, your case hangs together, but I think the only question-and it
might work to substitute all of this of intent-as you say, maybe even
limiting it a little bit further, undercover agents under diplomatic
protection.
But the more I think about it, admittedly just thinking out loud,
not really knowing where this is leading, that we just say you can't
publish the name.
Mr. MAZZOLI. The gentleman's time has expired.
Mr. FOWLER. Could I have some more time?
Mr. MAZZOLI. I will come back. I would like to proceed myself. It is
an interesting point the gentleman from Georgia is on. I would like
to carry it one step further, if I could, please.
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The gentleman suggests that we have certain things that you simply
can't do, a list of shall nots, which is a shall not, you shall not identify
publicly the name of an intelligence agent. You say that can't be done.
I think that as an ancillary to that question, one of the standards that
Mr. Halperin said before would have to be shown in any bill which is
to be constitutional is that it be limited to classified information, not
unclassified. So even if we had this list of names, I gather from what
you are saying that unlessthose names were themselves classified infor-
mation, not derived from unclassified or public information, even that,
subjecting those people to that kind of danger, identifying them for
the s
ecifi
f h
p
c purpose o
aving their heads blown off, destroying them,
you say that still wouldn't be a sanctionable act?
Mr. HALPERIN. No, I don't think I would say that, and if the stat-
ute was limited to cases where you intended to place lives in jeopardy,
I mean, to take a hypothetical, if you stand up on a street corner and
say to an unruly crowd, that man walking by is the CIA station chief
and he is trying to overthrow your government, I would not tell you
that
Mr. MAZZOLI. You say that, if I understand, if Wolf did that, you
say that that would not be a protected act?
Mr. HALPERIN. Well, I don't want to get-
Mr. MAZZOLI. All right, say
Mr. BERMAN. It amounts to an incitement in that circumstance.
Mr. HALPERIN. You come to a situation where you are dealing with
something different.
Mr. MAZZOLI. But if that same publisher, if I understand you, were
to take a piece of paper, publish it on all the bulletin boards down-
town, in kiosks and telephone polls, that is not inciting the people to
the same thing
Mr. HALPERIN. Well, it may be. If the Government can prove the
purpose of the disclosure was to place lives in jeopardy or it was done
with reckless disregard for the safety of lives
Mr. MAzzOLI. And just as a hypothetical, you think posting it on a
bulletin board downtown
Mr. HALPERIN. In downtown Jamaica?
Mr. MAzzobI. In downtown Kingston, that was reckless disregard?
Mr. BERMAN. Perhaps under the circumstances.
Mr. MAZZOLI. Do you think publishing it in a newspaper in Kings-
ton would be reckless?
Mr. BERMAN. It depends on the circumstances. That would be, you
know
Mr. MAZZOLI. But that information, although we would have a dif-
ference of opinion on what constitutes clear and present danger to the
safety, but the information would still have to be derived from classi-
fied information.
Mr. HALPERIN. Not in that circumstance.
Mr. MAZZOLI. When would it? I am curious.
Mr. HALPERIN. If you did not have it linked to a very specific, direct
and immediate injury.
Mr. MAZZOLI. Well, say, for instance, this information was derived
from the Biographical Digest, it is published in the Covert Action
Information Bulletin, it is shipped down to Kingston, that page of
Naming Names is then redone and printed and circulated.
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Mr. HALPERIN. I would say you would be pnuch closer to a consti-
tutional statute if you were talking about intent to injure or reckless
disregard for the safety of individuals, even if you left it with publicly
available information.
Mr. MAZZOLI. And even if the proclamation is we are not trying to
hurt John Jones or Mary Smith, what we are trying to do is to hurt
the United States, and to have it off this insanity of having a clandes-
tine activity ?
Mr. HALPERIN. That is why you need not only an intent to injure
but a reckless disregard, so that-
Mr. MAzzoLI. Well, it is an interesting point.
Let me ask you, if you could, about attempts, and I have some con-
cern about putting attempts in this bill. I think we discussed that a
bit yesterday.
But even though this is a speech case, I don't think you have to say
that the words have to come out before you know that an attempt has
been made. It seems to me that if you have an activity in which an
FBI is penetrating some organization and they have this list of names
and they arrange for the drop and the guy is there and he hands that
piece of paper over, and you nab his hand before the paper is unfolded,
why would that not be an attempt?
Mr. HALPERIN. I think it is a conspiracy.
Mr. MAZzou. A conspiracy to do it rather than an attempt?
Mr. HALPERIN. It is already covered. The prohibition on conspiracy
in 502(b) (1) and (2) does not apply to a person with authorized
access. In other words, a person who is coverd by section 501 (a) and
(b) can be convicted of conspiracy.
Mr. MAZZOLI. So that sort of situation, as you understand it, is cov-
ered by this bill already.
Mr. BERMAN. We don't think the Justice Department has thought
this thing through. They say how about "attempts" since there is no
controversy surrounding these sections. But I think under conspiracy
or the fact that if you make a drop to someone who is posing as a for-
eign agent, you are certainly not giving it to someone who is author-
ized to receive classified information, attempts are unnecessary.
Mr. MAZZOLI. Except that the person may himself be a receiver of
top secret information. The guy is going to pick it up from a tree
stump.
Mr. HALPERIN. There is actually case law on that, that if you give
it to somebody who you believe to be an agent of a foreign govern-
ment, you are not protected by the fact that he is actually a CIA agent.
Mr. MAZZOLI. My time has expired.
The gentleman from Georgia is recognized for 5 minutes.
Mr. FOWLER. Let's go back to where we were. Help me through this.
Back to where we all began in law school.
Mr. HALPERIN. I never had that privilege.
Mr. FOWLER. Well, that is why you are head of the union.
You can't cry fire in the theater.
Mr. HALPERIN. Falsely.
Mr. BERMAN. Falsely.
Mr. FOWLER. Falsely, that's right. That is principle No. 1. Because
of the jeopardy to the people. Well, we all know that.
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Principle No. 2, the court has said, has it not, that you can't publish
the names of juveniles in certain circumstances.
Mr. HALPERIN. Yes, not if-you could
Mr. FOWLER. Well, let's leave that for a minute, and then I will let
you distinguish the cases. But I know I didn't dream that. Sometime
where the-you cannot publish, we have got a law that says-
Mr. HALPERIN. But there is case law saying that if it gets out and it
is published, you can't penalize
Mr. FOWLER. All right, but let's do not-I don't want too long a
lei al
legal brief here. We can go hack. We have got that precedent.
we have got something about that trials of judges or dis-
ciplinary hearings or something, that the judge's name can't be pub-
lished, isn't that right? Some case along that line? There are some cir-
cumstances where you don't even publish the judge's name, and I don't
know why. You know, it will undermine the great moral force of the
judiciary or something.
OK, now, back to my example. Whereas the Congress of the United
States has deemed it necessary to protect the national security of all
of our citizens, it is necessary to have a CIA; whereas if that CIA,
through its operatives abroad, are revealed to be such operatives of
our land, it will place them, their families' lives in jeopardy, and ulti-
mately the jeopardy of the United States of America; whereas it is in
the interest of ever? citizen to have such protection abroad; it shall
be unlawful to publish, to knowingly publish the name of such person
so situated.
Now, in light of the examples and everything, -why is that uncon-
stitutional ? Why cannot the Congress do that?
Mr. BERMAN. Because as they said in the case of the information
about the judge, that once it is out, it can be-
Mr. FowLER. Now, wait a minute. It isn't out. It isn't out until some-
body publishes.
Mr. BERMAN. We have got to presume that you can pass that statute,
but I do not think it will pass constitutional muster.
Mr. FOWLER. Why ?
Mr. BERMAN. The court, first of all, in the first amendment area is
not going to take the findings by Congress just on its face. It is ing
to explore those in the context of that case. It is going to ask: Have
you placed a life in jeopardy? Is this a compelling interest? Do you
have interests which you are trying to protect which are so broad that
it is outweighed by the first amendment right to publish? There is a
whole range of cases which are in our memorandum and which will be
discussed by constitutional scholars this afternoon which would hold
that that statute would not stand up in court.
Mr. HALPERIN. And all of those cases, the Supreme Court, the cur-
rent Supreme Court has declared to be unconstitutional.
Mr. FOWLER. All of which cases?
Mr. HALPERIN. All of the cases involving efforts to punish the publi-
cation of information about juveniles, about judges. It is cited on page
8 in the footnote in our statement.
Mr. FOWLER. Well, you mean all those examples I have given have
given have been held to be unconstitutional?
Mr. HALPERIN. In all'of those cases Congress has tried-the court
has said once the information reaches somebody who is not in a posi-
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tion of trust, a reporter or a citizen, that person is free to publish the
information without fear of criminal penalties.
Now, those cases leave open the possibility in my view that in nar-
row circumstances where there is some direct and immediate substan-
tial injury of a direct kind, the Congress might be able to cover them.
They don't settle that. But there is no case, there is no case at all that
anybody has cited in this debate that I am aware of where the court
has upheld the constitutionality of a statute that punishes a reporter,
somebody not being in a position of trust, for publishing information
which he lawfully acquired.
Mr. FOWLER. Leaving aside, I just don't see how-I mean, we inevit-
ably get into the debate, it is the fringe of the debate, you kept very
close, about whether there ought to be a CIA and this stuff, but if the
CIA, if the activity of the United States is defined carefully, I don't
see this is any different than publishing material under the Atomic
Energy Act or anything else.
Mr. HALPERIN. That statute requires intent to injure the United
States or give advantage to a foreign power. The communication stat-
utes dealing with revealing codes
Mr. FOWLER. I know, but what I am saying is it is obvious-I don't
know how we define it statutorily, but it is obvious that you don't
have-,the very definition of the CIA is secrecy.
Mr. HALPERIN. But you may be saying that it is
Mr. FOWLER. You vitiate the whole purpose of having a CIA as
defined by the law if you reveal it under any circumstances. I can't
think of any circumstance that is furthered under the statute by hav-
ing a public CIA. By definition it is secret.
Mr. BERMAN. And by definition Congress shall make no law
abridging freedom of speech, and the two collide, and just by that
assertion I do not think you have resolved the balancing interests
there.
Mr. FOWLER. Well, but the protection there
Mr. MAZZOLI. The gentleman's time has expired.
Mr. Halpern, you state that the specific intent provision of H.R. 4-
and I alluded to this earlier-is unconstitutional because everyone has
a constitutional right to impair and impede, more or less.
Would there be any change to this position if we say : "Lawful in-
telligence activities?"
Could you talk to that point?
Mr. HALPERIN. Yes. I think you have a right to impair or impede
intelligence activities if you do so by intending to influence public
debate. That is, I would draw a distinction which is drawn in the
Kennedy compromise which has been raised several times which talks
about impairing or impeding the effectiveness of covert agents or the
activities in which they are engaged by the fact of such uncovering
and disclosure, and distinguish that from a disclosure whose purpose
it is to influence congressional or public or executive branch delibera-
tions.
I think you have a right to publish articles and include in them, if
you think it is necessary to make them effective, the names of agents
if your purpose is to influence the robust and open debate which the
first amendment protects. If your purpose is simply to label somebody
as an agent and thereby render them ineffective, not through the mech-
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anism of public debate or governmental action, but simply by the act
of disclosure, then I think you are close to something which Congress
can in fact penalize.
Mr. MAZzoLI. Thank you.
I guess what I get from all of this discussion today and what we
have had over a period of time is two things. One, even as we have
narrowed the bill we have made it even less constitutional in one re-
spect. I mean, it appears like putting intent in there in order to focus
it on a certain breed of bad guy, we are now finding that this effort
is not necessarily the most reliable constitutional way to approach
it because we might be discriminating among and between. And that
is one thing I get out of it. I hope that you all can disabuse me of
that feeling because we are trying to do the right thing.
The second part is that after we get through all of this discussion,
we reach the point that basically I don't think there is any reasonable
way we are ever going to proceed against these people if we believe
your position. I mean, I think that by the time you get through all
the constitutional discussions and the intents and the reasons to believe,
and we are close to the mark, we probably reach a point where in fact
the ACLU position, it appears to me, is that you really will not permit
an of these people ever to be proceeded against.
go taken on that basis, have we focused it too far, and should we
broaden it, and second, do you think that these people should be
moved out?
Mr. Berman, perhaps I interrupted you on the first part.
Mr. BERMAN. Well, let me say I think your first was I don't think
that the intent standard has-I don't agree with Mr. Bass. I think that
the intent standard narrows the constitutional problems, and I read
Gorin to that effect and Heine, I mean, attempts to say that bad pur-
pose is essential. I think that what Congress is trying to get down to is
to narrow the bill to cover only placing lives in jeopardy, for example,
in circumstances where there is no redeeming social importance. So it
can use intent, to try and distinguish between communicating to the
public and simply, on its face, trying to neutralize an agent in a par-
ticular circumstance.
The bill, however, I still believe is not drafted to reach that narrow
purpose that the Congerss keeps articulating it would like to reach,
and I think that taking the present intent standard is not going to help
you. But I do think that more work could be done on focusing the
definition of covert agent, focusing the purpose that you are trying to
reach in terms of placing lives in jeopardy or reckless disregard of a
person's life, or neutralizing an agent by the very fact of the disclosure
itself, and that you have no communication purpose. I think that can
be better articulated in the statute and in the report language. I just
think it is-or the House report says "an area fraught with first amend-
ment problems." I think that there is a lot of concern going both ways,
but I think that there is still work that could be done to try and narrow
it.
Mr. MAZZOLI. Mr. Halperin?
Mr. HALPERIN. Let me make it clear. If we have to choose between the
current House version and the current Senate version, we have a vast
preference for the current House version of the bill.
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Second, I think that if you limit it to the kinds of people who are
named in those lists, that is, CIA employees serving abroad, and if you
limit it to the purposes which have always been talked about in all the
discussions about this bill, protecting the lives of the agents or protect-
ing against the interference with the covert activities by the very act
of disclosure itself, if you limited it in those two ways, we would not be
here supporting the bill, but our view of it would be very different.
Mr. MAZZOLLI. Thank you.
My time has expired.
The gentleman is recognized for 5 minutes.
Mr. FOWLER. Well, the second part about covert activities, I mean I
don't see how, I just can't see how you can't have a full and robust
debate and prevent-do anything you want to knock out a discovered
covert activity without naming names.
Mr. HAPERIN. Well, I think-I mean, I will give you two answers to
that. One is I could go through lots of scenarios-we have them in our
documents-where we think it is essential to name a name, at least as it
is now broadly defined, for the purpose of properly influencing the
debate.
The second point, I would say, as the Chief Justice has said in a
number of issues, it is not for the courts or the Congress to tell reporters
or writers what they need to put in their stories to communicate what
they have a right to communicate, and I think that is a judgment that
Congress cannot make for a reporter absent a bad purpose or narrow
interest.
Mr. FOWLER. But you are just suggesting that we could narrow it, in
your opinion, to make it constitutional; did you not?
Mr. HALPERIN. Yes, I think that the first amendment protects your
right to speak and say anything for the purpose of influencing public
debate. If you do not have that purpose, if your speech is designed as
an action which is designed to directly affect what is going on, like
shouting at somebody kill that guy because he is about to do something
terrible to you, that is not the kind of speech, in my view, that the first
amendment is designed to protect. If somebody stands on a street cor-
ner and says that's a CIA agent, and the purpose that he has in saying
that is either to try to encourage you to kill him, or knowing that you
may very well take out a gun and kill him, or his purpose is to put the
label on the forehead of that person, CIA, so that he can't do his job,
not because he has persuaded Congress that he ought not to do it, or the
President that he ought not to do it, or the public that he ought not to
do it, but just by the act of saying he is a CIA agent is the equivalent
of painting the word CIA on his forehead with a can of paint that
can't come off, and so nobody will talk to the person. He can't do his
job.
My view is that that activity is not protected by the first amendment.
Mr. FOWLER. That's all we are trying to do here.
Mr. HALPERN. Well, I would say if you-my answer to the question
is if that is what you are trying to do, I think there is a language that
can do that that will, I think, have the practical effect of stopping the
naming of the names until that statute is tested in the courts. I think
that statute
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Mr. FowLER. I would very much like for you to-it is hard to ask an
organization that doesn't support the bill to come up again with some
language, but I would certainly like to see your recommendations, and
then I will put you in the dilemma, in your full and robust free speech
to write the bill and then not support it.
Mr. HALPERIN. We have done that before and I am sure we will do it
again.
Mr. FOWLER. The truth of the matter is I have, too. And I am serious,
because that is all we are trying to do.
Mr. HALPERIN. I understand
Mr. FOWLER. And nobody wants to chill free speech, but it does seem
to me quite apart from the abstract and the purist theory of first
amendment rights. And it is beginning to look a little ridiculous that
we cannot-again, secrecy and the CIA are hand in hand. If you are
going to have folks named, for whatever reason, there is no need to
have a CIA. Do it all open. And a lot of people in the country of course
would applaud that. That's what got us in this trouble, people who were
doing what they are doing, deliberately, intentionally, don't think we
ought to have a CIA. That is their purpose. And because secrecy and
CIA, clandestine operations, are inextricable, their publication is com-
pletely effective. They don't have to do any more. That's all they have
to do to put the lepers brand on that individual.
And that first of all renders him completely ineffective; secondly,
puts him in danger of some sort--nobody is going to argue with that-
and thirdly, thereby vitiates the whole purpose of them having a
clandestine operation.
Mr. HALPERIN. But that is the key. It is the "thereby." As long as it
is limited to thereby, I think the problems are very different. This bill
is not limited there.
Mr. FowLER. OK. I would thank you for the work you have done, and
if you could help me on some of those sections, I don't want to make
Willy Brandt covered by the bill. So help me with that section.
Mr. HALPERIN. We have moved forward.
Mr. FowLER. Let's see what we can do.
Thank you.
Mr. MAZZOLI. The gentleman's time has expired.
Gentlemen, let me thank you very much for another stimulating day.
You make us dig down deep to come up with the combinations, but any
information you wish to share with us from now on out will be looked
at very carefully.
Thank you.
Mr. HALPERIN. Thank you.
Mr. MAzzoLI. Our last witness for the morning session is Mr. Robert
Lewis who represents the Society of Professional Journalists, Sigma
Delta Chi. Mr. Lewis is familiar to the committee as the chairman of
the Freedom of Information Committee of the Society, and he has
testified before the committee, and he is accompanied, I am told, by
Mr. Bruce Sanford, counsel to the Society.
Gentlemen, we welcome you and your statements will be made a part
of the record.
You can address the issues however you wish.
[The prepared statement of Mr. Robert D. G. Lewis follows:]
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STATEMENT OF ROBERT LEwIS, SOCIETY OF PROFESSIONAL JOURNALISTS, SIGMA
DELTA CHI
Thank you, Mr. Chairman, for this opportunity to comment on H.R. 4, the
Intelligence Identities Protection Act of 1981. My name is Robert Lewis, and
I am Chairman of the National Freedom of Information Committee of the Society
of Professional Journalists, Sigma Delta Chi. The Society, as you may know, is
the oldest, largest, and most representative organization of journalists in the
United States. Founded in 1909, the Society has 300 chapters and more than 25,000
members in all branches of journalism.
The Society of Professional Journalists, Sigma Delta Chi deplores the conduct
of those who would reveal the identities of United States intelligence agents for
the indefensible purpose of endangering their lives and the lives of their families
and associates. As journalists, we condemn such irresponsible actions as alien to
the accepted standards of our profession. As Americans, we believe that such dis-
closure violates the moral obligations of all citizens to their countrymen.
In the last analysis, however, we must conclude that this conduct, abhorrent as
it is, cannot be penalized by legislation without forsaking the freedom of expres-
sion guaranteed by the First Amendment.'
Mr. Chairman, the Society commends this Committee for its persistent and
conscientious efforts to draft a bill that would safeguard the freedoms of speech
and of the press. Nevertheless, this experience has served to reinforce our belief
that the Constitution deprives Congress of the power to declare by statute that
truthful information about the workings of government shall not be published.
Despite the efforts of committees in both houses to steer clear of unconstitu-
tional restrictions on First Amendment rights, all versions of the Intelligence
Identities Protection Act would make it a criminal offense to publish the identity
of a covert intelligence agent. By its very nature, such a statute would extend
far beyond Mr. Agee and Mr. Wolf to encompass the work of responsible profes-
sional journalists. It would punish the publication of news reports concerning
illegal activities by the CIA in the United States and abroad. It would make it
a crime to disseminate articles about CIA use of academics, clergy, and even
journalists for intelligence gathering purposes. And it would render illegal news
reports on a whole range of breaking news events, including the assassination
of a covert United States intelligence agent by foreign terrorists. We submit,
Mr. Chairman, that such information should be published and that the First
Amendment protects our right to publish it.
Had H.R. 4 been the law in 1972, the best example of investigative news re-
porting in this nation's history would have constituted a criminal offense. The
initial press reports about Watergate, you will recall, focused squarely on the
burglars' relationships with the CIA, a path of investigation that would be
illegal under H.R. 4. In addition, Mr. Chairman, had H.R. 4 been the law in
1979, the most important breaking news story of the last decade could not have
been reported accurately and fairly without violating a federal penal statute.
When the American embassy was captured in Teheran, the Iranian militants
sought to convince the world that our hostages were covert intelligence agents.
If H.A. 4 had been law, the American press would have been prohibited from
reporting these allegations to the American people, even in the context of refuting
them.
These very real restraints on the dissemination of newsworthy information by
professional journalists would be realized despite the attempts of H.R. 4's drafts-
men to distinguish legitimate news reporting from senseless exposure. I have
no doubt that there are those who would equate investigative reporting about
illegal CIA conduct with "an effort to identify and expose covert agents." In-
deed, it is not difficult to imagine a charge that, for example, news reports about
the CIA connections of a foreign dictator were made with "intent to impair
or impede the foreign intelligence activities of the United States."
There can be no doubt, Mr. Chairman, that such legislative restrictions on the
dissemination of news violate even the most narrow construction of the First
Amendment. The CIA and other intelligence agencies are components of the gov-
ernment of the United States. As such, uninhibited public scrutiny of their con-
duct lies at the heart of the First Amendment. In a democracy, it is the job of
the citizens, not their governors, to determine what information is necessary to a
1 The Supreme Court has characterized this right as "the foundation of free government
by free men." Marsh v. Alabama, 326 U.S. 501, 509 (1945).
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self-governing society. As the Supreme Court has repeatedly emphasized, "speech
concerning public affairs is more than self-expression ; it is the essence of self-
government."'
Justice Hugo L. Black once explained that "in the First Amendment, the
Founding Fathers gave the free press the protection it must have to fulfill its
essential role in our democracy. The press was to serve the governed, not the
governors."' Thus, the First Amendment deprives the Congress, the President,
and the Courts of any role in determining what information about public institu-
tions "is relevant to self-government." 4 At bottom, H.R. 4 is an attempt to sub-
stitute the Congress for the press as a kind of "super editor;"' a well-intentioned
effort to declare legislatively that a species of information is irrelevant to citi-
zens in a democracy. The Society believes such legislation is unconstitutional.
The Supreme Court has held in countless decisions that the publication of
truthful information about government is absolutely protected by the First
Amendment and cannot be subject to criminal sanctions. In 1940, when this
nation was on the verge of entering a world war, the Supreme Court affirmed
this "central meaning" of the First Amendment :
The freedom of speech and of the press guaranteed by the Constitution em-
braces at the least the liberty to discuss publicly and truthfully all matters of
public concern, without previous restraint or fear of subsequent punishment.'
More recently, the Court reemphasized the fundamental First Amendment
doctrine that "[t]ruth may not be the subject of either civil or criminal sanctions
where the discussion of public affairs is concerned." ?
So strong is the constitutional commitment to the principle that truthful pub-
lications concerning government affairs cannot be punished that the Supreme
Court has mandated a degree of protection for false speech in order to afford
"breathing space" to truth' Even commercial speech, expression that the Court
has stated is entitled to a lesser "degree of protection" than is due "news report-
ing," cannot be regulated if it is true.' In a 1976 decision involving commercial
speech, the Court held that government cannot enact criminal statutes that
punish the publication of truth because :
It is precisely this kind of choice, between the dangers of suppressing informa-
tion, and the dangers of its misuse if it is freely available, that the First Amend-
ment makes for us.1O
Mr. Chairman, the Society recognizes that the regime of free political expres-
sion entails risks that, on occasion, this freedom will be abused. Nevertheless, in
the interest of the greater public goods, the First Amendment mandates that
these risks be taken. The Congress cannot intervene to suppress truthful informa-
tion about government in the name of some other competing interest because, as
James Madison explained, in our form of government "the censorial power is in
the people over the government, and not in the government over the people." it
Indeed, there is no greater exposition of the resolution of the precise constitu-
tional issue posed by H.R. 4 than the classic 1927 statement of Justice Louis D.
Brandeis which, although lengthy, is worth reiterating in full :
Those who won our independence believed * * * that public discussion is a
political duty ; and that this should be a fundamental principal of the American
government. They recognized the risks to which all human institutions are sub-
ject. But they knew that order cannot be secured merely through fear of punish-
ment for its infraction ; that it is hazardous to discourage thought, hope and
imagination ; that fear breeds repression ; that repression breeds hate ; that hate
menaces stable government ; that the path of safety lies in the opportunity to
discuss freely supposed grievances and proposed remedies ; and that the fitting
remedy for evil counsels is good ones. Believing in the power of reason as applied
S Garrison v. Louisiana, 379 U.B. 84, 74-75 (1964).
'New York Times Co. V. United States, 403 U.B. 713, 717 (1971) (Black, J., concurring).
4 Gertz v. Robert Welch, Inc., 418 U.B. 323, 346 (1974).
8 The free exercise of the editorial function is 'Integral to First Amendment inter-
ests ' ' * because it assists the individual in his attempt to make informed choices." Note
The Editorial Function and the Gertz Public Figure Standard, 87 Yale L.J. 1723
1734
,
(1978).
8 Thornhill v. Alabama, 310 U.S. 88, 101-102 (1940).
7 Garrison v. Louisiana, 379 U.S. 64, 74 (1904).
$ New York Times Co. v. Sullivan, 376 U.S. 254. 271-72 (1964).
' Virginia State Board of Pharmacy V. Virginia Citizens Consumer Council
Inc.
425 U
S
,
,
.
.
748, 772 n. 24 (1976).
to Id.
u J. Madison, 4 Annals of Cong. 934 (1794), quoted in New York Times Co. Y. Sullivan
,
378 U.S. 254, 275 (1964).
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through public discussion, they eschewed silence coerced by law-the argument
of force in its worst form. Recognizing the occasional tyrannies of governing
majorities, they amended the Constitution so that free speech and assembly
should be guaranteed"
There are, Mr. Chairman, a number of reasons why government is denied the
power to punish the publication of truthful information about itself. Initially,
even a well-intentioned statute such as H.R. 4 can easily be misused by those
who would suppress all criticism of official conduct. Moreover, such a law can be
selectively invoked to conceal specific information that reflects poorly upon those
in power. Finally, even when not abused, the very existence of such a law will
stifle free expression by conscientious journalists fearful of possible prosecution
and conviction. While the intent of H.R. 4 is not to inhibit criticism of govern-
ment, that will be its clear effect. It is, therefore, at odds with nearly 200 years
of constitutional government.
The inability of government to punish the publication of the identities of covert
agents by third parties, including the press, does not mean that government is
powerless to protect its employees from unwarranted exposure. The First Amend-
ment merely sets forth the parameters within which government can constitution-
ally operate. The late Professor Alexander Bickel, one of this nation's greatest
constitutional scholars, explained these ground rules as follows :
[G]overnment may guard mightily against serious but more ordinary leaks,
and yet must suffer them if they occur.
Members of Congress as well as the press may publish materials that the gov-
ernment wishes to, and is entitled to, keep private. * * * If we should let the
government censor as well as withhold, that would be too much dangerous power,
and too much privacy. It we should allow the government neither to censor nor
to withhold that would provide for too little privacy of decision making and too
much power in the press and in Congress."S
Or, in the words of Justice Potter Stewart :
If the Constitution means anything, it means that government cannot take it
upon Itself to decide what a newspaper may and may not publish. Though gov-
ernment may deny access to information and punish its theft, government may
not prohibit or punish the publication of that information once it falls into the
hands of the press, unless the need for secrecy is manifestly overwhelming."
Thus, government can and should take all steps necessary to safeguard infor-
mation, Including the identities of covert agents, when necessary to an effective
foreign policy. The CIA can and should provide effective "cover" for covert
agents and improve Its system of classifying documents containing sensitive ma-
terial. Government may even, in many circumstances, punish its own employees
for disclosing such information to the press and public. But once the information
is received by the press or the public, government may not punish its publication.
Mr. Chairman, there Is one further safeguard against the unwarranted dis-
closure of the identities of covert agents that we, as professional journalists,
believe is of tremendous significance. Journalists in this nation are responsible
professionals. We are not in the business of disclosure for disclosure's sake.
The standards of our profession demand that we publish information which is
"newsworthy ;" that Is, information that has independent news value to the
public we serve.
The First Amendment mandates that journalists, trained professionals in
the selection and dissemination of news, be trusted to exercise our freedom of
expression responsibly. The Supreme Court has recognized that the editorial
decisions of the press are protected by the First Amendment precisely because
"the choice of material to go into a newspaper and the decisions made as to .. .
content and treatment of public issues constitute the exercise of editorial con-
trol and judgment." 's Such editorial discretion, the Court has held, cannot be
superseded by government "consistent with First Amendment guarantees of a
free press as they have evolved to this time."" Chief Justice Burger perhaps
said it best when he wrote, for a unanimous Court, "[f]or better or worse,
editing is what editors are for, and editing is the selection and choice of
material." 17
12 Whitney v. California, 274 U.S. 357, 375-76 (1927) (Brandeis, J., concurring).
is A. Bickel, The Morality of Consent 80 (1975).
14 Landmark Communications, Inc. v. Virginia, 435 U.S. 829, 849 (1978) (Stewart, J.,
concurring).
15 Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241, 258 (1974).
1e Id.
17 Columbia Broadcasting System Inc. v. Democratic National Committee, 412 U.S. 94, 124
(1973).
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Mr. Chairman, the Society of Professional Journalists, Sigma Delta Chi re-
spectfully suggests that editing is not what government is for. H.R. 4, we must--
conclude, is no more than an effort to constitute Congress as the judge of what
information should be published. This, we respectfully submit, is our job, not
yours.
Thank you.
STATEMENT OF ROBERT D. G. LEWIS, CHAIRMAN, NATIONAL
FREEDOM OF INFORMATION COMMITTEE, SOCIETY OF PRO-
FESSIONAL JOURNALISTS, SIGMA DELTA CHI ACCOMPANIED
BY BRUCE SANFORD, COUNSEL TO THE SOCIETY OF PROFES-
SIONAL JOURNALISTS
Mr. LEWIS. Thank you, Mr. Chairman, for this opportunity to com-
ment on H.R. 4, the Intelligence Identities Protection Act of 1981.
My name is Robert Lewis, and I am the Chairman of the National
Freedom of Information Committee of the Society of Professional
Journalists, Sigma Delta Chi. As you may know, the society is the
oldest, largest and most representative organization of journalists
in the United States and, we understand, the world. It was founded
in 1909 and now has 300 chapters and more than 25,000 members in
all branches of communications.
The society deplores the conduct of those who would reveal the
identities of U.S. intelligence agents. As journalists, we condemn such
irresponsible actions as alien to the accepted standards of our profes-
sion. And as Americans, we believe that such disclosure violates the
moral obligations of all citizens to their countrymen.
But in the last analysis, we believe that this conduct, abhorrent as it
is, cannot be penalized by legislation without forsaking the freedom of
expression guaranteed by the first amendment.
Mr. Chairman, seven other journalist groups share that belief, and
I wondered if it would be possible to include in the record a letter
dated April 6 to the chairman from representatives of the American
Society of Newspaper Editors, the American Newspaper Publishers'
Association, the National Newspaper Association, the Radio-Tele-
vision News Directors' Association, the Association of American Pub-
lishers, the Reporters' Committee for Freedom of the Press, and may
own societ ; and since this letter was sent, the National Press Club s
Board of society; has voted to associate itself with these sentiments.
Mr. MAzzoLI. Well, without objection, that will be made a part of
the record.
[The document referred to follows:]
AMERICAN NEWSPAPER PUBI.ISHERS AssoCIATIoN,
THE NEWSPAPER CENTER,
DvLLzs INTERNATIONAL AIRPORT,
Washington, D.C., April 6,1981.
Chairman, House Intelligence Subcommitee on Legislation,
Washington, D.C.
DEAR MR. CHAIRMAN : As representatives of the major, national, media organi-
zations, we are concerned about the potential effects of H.R. 4, the "Intelligence
Identities Protection Act," which will be the subject of hearings by your subcom-
mittee April 7 and 8.
Members of our groups were strong opponents of similar legislation during the
96th Congress, and are disturbed to see it once again surface this year. Of particu-
lar concern is Section 501(c) of the bill. If enacted into law, this provision would
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94
have the unprecedented effect of establishing criminal penalties for publishing
information which is publicly available. Moreover, this section extends these pen-
alties not only to those who have or have had authorized access to classified infor-
mation, but to any person who discloses such information. Such an expansive and
constitutionally-questionable restriction must not be made law.
We understand that the intent of this legislation is to protect the lives of our
intelligence agents. We concur completely and heartily with that goal.
However, the path which is being taken to reach that goal is not only ineffective
but dangerous. The U.S. Supreme Court has clearly and consistently maintained
the right of the press to publish any information which is obtained through legal
means. (See Landmark v. Virginia and Smith v. The Daily Mail.) Enactment of
Section 501(c) clearly would violate this very fundamental and historic principle.
We appreciate your expressed interest in the serious concerns which are raised
by the "Intelligence Identities Protection Act," and we look forward to a full and
public hearing on these critical issues.
Sincerely yours,
JESaY W. FRIEDHEIM,
Executive Vice President and General Manager,
American Newspaper Publishers Association.
Mr. LEwis. I would like to also offer for the record a resolution
passed at the last national convention of the Society of Professional
Journalists dealing with this subject.
Mr. MAZZOLI. Without objection, so ordered.
[The document referred to follows:]
(Adopted by the 1950 National Convention of the Society of Professional Jour-
nalists, Sigma Delta Chi, at Columbus, Ohio, November 22, 1980.)
Whereas the Central Intelligence Agency is seeking passage in Congress of
legislation to provide criminal penalties for anyone, including journalists, who
disseminates information that may disclose the identity of a CIA agent or in-
formant, and
Whereas the legislation would for the first time criminalize the publication
of information taken from public records, and
Whereas attorneys who specialize in First Amendment law say the legislation
raises serious constitutional questions because of the First Amendment prohibi-
tion against any law which abridges freedom of the press, therefore be it
Resolved, That the.Society of Professional Journalists, Sigma Delta Chi, sup-
ports the objective of preventing former CIA employees and other persons who
have had access to classified information from endangering the lives of CIA
agents or informants by disclosing their identities, and be it further
Resolved, That chapters of the Society urge Congress to reject legislation which
subjects anyone who does not have or has not had authorized access to classified
information to criminal penalties for publishing articles based on public informa-
tion, and be it further
Resolved, That chapters of the Society convey this resolution to their congres-
sional delegations and declare their opposition to the "agent identities bill" as it
applies to journalists.
Mr. LEWIS. I might also note that editorials opposing section 501 (c)
have appeared in recent months in a number of publications, including
the Washington Post, the New York Times, the Boston Globe, the
Chicago Tribune, the Los Angeles Times, and the Philadelphia
Bulletin.
Mr. MAZZOLI. And the Louisville Courier-Times, too. Be sure and
add that. I am sure you intended to, but you didn't.
Mr. LEWIS. Mr. Chairman, the society commends this committee for
its efforts to draft a ball that would safeguard the freedoms of speech
and of the press. Nevertheless, we believe the Constitution deprives
Congress of the power to declare by statute that truthful information
about the workings of Government shall not be published.
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Despite efforts of committees in both Houses to steer clear of un-
constitutional restrictions on these first amendment rights, the various
versions of the bill would make it a criminal offense to publish the
identity of a covert intelligence agent. By its very nature, such a
statute would extend far beyond Mr. Agee and Mr. Wolf to encom-
pass the work of responsible journalists. We believe it would punish
the publication of news reports, for example, concerning illegal ac-
tivities by the CIA in the United States and abroad. It would make
it a crime to disseminate articles about CIA use of academics, clergy,
and even Journalists for intelligence-gathering purposes. And it would
render illegal news reports on a whole range of breaking events,
including the assassination of a covert intelligence agent by a foreign
terrorist. We submit, Mr. Chairman, that such information should be
published and that the first amendment protects its publication.
Had H.R. 4 been the law in 1972, the best example of investigative
reporting in recent times would have constituted a criminal offense.
The initial press reports about Watergate, you will recall, focused
squarely on the burglars' relationships with the CIA, a path of inves-
tigation that would be illegal under H.R. 4. In addition, Mr. Chair-
man, had H.R. 4 been the law in 1979, the most important breaking
news story of the last decade, the Iranian hostage crisis, could not
have been reported accurately and fairly without violating this H.R. 4,
section 501(c). When the American Embassy was captured in Tehran,
the Iranian militants sought to convince the world that our hostages
were covert intelligence agents. If H.R. 4 had been law, the American
press would have been prohibited from reporting these allegations to
the American people, even in the context of refuting them.
And after the aborted rescue mission in 1980, you will recall a
number of stories, apparently emanating from leaks from highly
placed sources in the 'Carter administration, reported on a number
of details of the aborted mission in an apparent attempt to show the
American people that it had a valid purpose and a good chance of
succeeding. Shortly after those leaked stories were published, other
stories came out that the disclosure of that kind of information was
risking the cover of CIA and American supporters in Iran who
apparently were involved in setting up that rescue mission. Those kind
of stories apparently would be covered and would be prosecutable
under section 501(b) even though the source of that story, presumably
somebody in the White House, would not.
These very real restraints on the dissemination of newsworthy
information would be realized despite the attempts of H.R. 4's drafts-
men to distinguish legitimate news gathering from senseless exposure.
T have no doubt that there are those who would equate investigative
reporting about illegal CIA conduct with an effort to identify and
expose covert agents. It is not difficult to imagine a charge that, for
example, news reports about the CIA connections of a foreign dic-
tator were made with the intent to impair or impede the foreign
intelligence activities of this country.
Justice Hugo Black once explained that in the first amendment, the
Founding Fathers gave the free press the protection it must have to
fulfill its essential role in our democracy. The press was "to serve the
governed, not the governors," Justice Black wrote. And thus the first
amendment deprives the Congress, we believe, as well as the President
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and the courts, of any role in determining what information about
public institutions is relevant to self-government. At bottom, H.R. 4 is
an attempt to substitute the Congress for the press as a kind of super-
editor, a well-intentioned effort to declare legislatively that a species of
information is irrelevant to citizens in a democracy. The society be-
lieves such legislation is unconstitutional, and we hope this subcom-
mittee and committee would consider it very carefully before sending a
bill that would break 200 years of free expression precedent to the floor
of the House.
The Supreme Court has held in countless decisions, Mr. Chairman,
that the publication of truthful information about Government is pro-
tected by the first amendment and cannot be subject to criminal sanc-
tions. I won't go into all of them, but they are outlined, many of them,
in my prepared statement. I might just mention that in 1940 when this
country was on the verge of World War II, the Court affirmed this cen-
tral meaning of the first amendment by saying that :
The freedom of speech and of the press guaranteed by the Constitution
embraces at the least the liberty to discuss publicly and truthfully all matters
of public concern, without previous restraint or fear of subsequent punishment.
Mr. Chairman, the society recognizes that the free political expres-
sion entails risks that, on occasion, this freedom will be abused. Never-
theless, in the interest of the greater public good, the first amendment
mandates that these risks be taken.
There are, Mr. Chairman, a number of reasons why Government
should not criminalize the publication of truthful information about
itself, information that had already been on the public record. Initi-
ally, even a well-intentioned statute such as H.R. 4 can easily be mis-
used by those who would suppress all criticism of official conduct.
Moreover, such a law can be selectively invoked to conceal specific in-
formation the reflects poorly upon those in power. And finally, even
when not abused, the very existence of such a law will stifle free expres-
sion by conscientious journalists fearful of possible prosecution and
conviction. While the intent of H.R. 4 is not to inhibit criticism of
Government, we believe that that would be its clear effect. It is there-
fore at odds with nearly 200 years of constitutional Government.
The inability of Government to punish the publication of the iden-
tities of covert agents by third parties, including the press, does not
mean that Government is powerless to protect CIA agents and sources.
The first amendment merely sets forth the parameters within which
Government can constitutionally operate.
The Government can and should take all steps necessary to safe-
guard information, including the identities of covert agents when
necessary to an effective foreign policy. The CIA can and should pro-
vide effective cover for covert agents and improve its system of clas-
sifying documents containing sensitive material.
Government may even in many circumstances punish its own em-
ployees for disclosing such information to the press and public. But
once the information is received by the press or the public, we believe
that Government may not and should not punish its publication.
Mr. Chairman, there is one further safeguard against the unwar-
ranted disclosure of CIA agents' identities by journalists. We believe
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that journalists in this Nation, down through history., have proven
themselves to be responsible professionals and good citizens. I think
there has been only one case in 200 years of the press in the United
States disclosing a national security secret that jeopardized the United
States, and that was the report during World War II by the Chicago
Tribune of the fact that we had broken the Japanese code. And since
apparently the Japanese were not subscribing to the Chicago Tribune
at that point, I don't think the Japanese ever learned that from that
source.
Journalists are not in the business of disclosure for disclosure's sake.
The standards of our profession demand that we publish information
which is newsworth; that is information which has independent news
value to the public we serve.
The first amendment mandates that journalists, trained profes-
sionals in the selection, and dissemination of news, be trusted to
exercise freedom of expression responsibly. The Supreme Court has
recognized that the editorial decisions of the press are protected by
the first amendment precisely because "the choice of material to go
into a newspaper and the decision made as to content and treatment
of public issues constitutes the exercise of editorial control and judg-
ment." Such editorial discretion, the court has held, cannot be super-
seded by Government "consistent with first amendment guarantees of
a free press as they have evolved to this time."
Chief Justice Burger perhaps said it best when he wrote for a unani-
mous court, "that for better or worse, editing is what editors are for,
and editing is the selection and choice of material."
Mr. Chairman, the society respectfully suggests that editing is not
what Government is for. H.R. 4, we believe, is no more than an effort to
constitute Congress as a judge of what information should be published.
Thank you.
Mr. MAzzoLI. Thank you very much, sir.
I would thank you for your testimony. You have given the society a
ringing defense. I am not really persuaded by it, but that is the reason
we are here today.
My dear friend and former colleague in the House, Eddie Koch, who
is now mayor of New York, has a favorite expression which I think is
significant and probably details the situation. He says a conservative is
a liberal who has been mugged, and I would just have to think that you
would be sitting here telling me differently if you had had to suffer
what some of the CIA people have been suffering at the hands of the
people like this Covert Action Information Bulletin.
Your life, your family's life, your own career would be in shambles.
In that sense you would have been a liberal who has been mugged.
And I wondered if you could talk, you know, in sort of straight-
forward terms. It is one thing to be esoteric and it is one thing to be
theoretical, and it is one thing to talk in terms of this vantage point,
but talk about the guy who is stationed in Central America or a guy
who is stationed someplace maybe in Africa, tell me about that.
Mr. LEWIS. As I said in the statement, Mr. Chairman, we fully sup-
port the intent ofH.R. 4 and the sections that deal with prohibiting the
information that discloses the identity of an agent when it is given by
someone who has had access to classified information.
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98
Mr. MAzzoi i. Why ?
Mr. LEWIS. Because we don't agree with what a few citizens are
doing.
Mr. MAZZOLI. It is truthful information. You are saying truthful in-
formation should be protected.
Mr. LEWIS. We don't agree with the purposeful and senseless dis-
closure of the identities of agents for the purpose of undermining the
CIA and American foreign policy.
Mr. MAZZOLI. All right. Is there anything with purpose or sense
about divulging information in the category 501(c) ?
Mr. LEWIS. We think 501(c) casts such a broad net that it would both
criminalize the publication of news stories-and we listed a number of
examples-and maybe worse than that, it would have a chilling effect.
Counsel says that the advice to a newspaper or broadcast outlet on
whether or not to go ahead with a story that borders on a violation of
section 501(c)-counsel's recommendation to his client would be not
to publish, not to run the risk of a long jail term and a heavy fine.
Mr. MAZZOLI. Well, I get back to my aphorisms again. One of my
other favorites, it all depends on whose ox is being gored.
I remember when I guess it was Gay Talese tried to put the book
together on the New York Times, and they stonewalled from start to
finish, the same organization which stands four square for printing
everything and openness was, you know, was stonewalling. And so I
just have to think.that if the liberals were mugged once in a while, I
think probably there would be a different attitude about this bill.
Let me also say, are you party to the FOI suit trying to seek the
disclosure of the Biographical Registers?
Mr. LEWIS. No.
Mr. MAZZOLI. What do you think of that case?
Mr. LEWIS. I am not familiar with it.
Mr. MAZZOLI. OK, thank you very much. My time has expired.
The gentleman from Georgia.
Mr. FOWLER. Mr. Lewis, using your example about the Chicago news
story, how would the publication of keys to whatever coding system
we might now have in the national interest, the publication of missile
locations, in your opinion, be different than publishing the names
of undercover operatives of our Government?
I assume that you would take the position that the newspaper could
be rightly prosecuted for publishing our missile locations or the key
to our coding system.
If my assumption is wrong, please correct me.
Mr. LEWIS. I think the Government has the power to classify in-
formation and it has the power to punish employees who release
classified information, and
Mr. FOWLER. What if an employee doesn't release it? I'm talking
about your crack newspaper reporter who gets the story all by him-
self, he discovers what the key to the coding system is or where the
missile location is, and then publishes it?
Mr. LEWIS. I think once information is in the public sector, the
courts, as I understand-I am not a lawyer, but as I understand the
Supreme Court has prohibited attempts to prevent its publication or
prosecute or punish an organization or individual for publishing. But
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the original point is that the press, down through the years, has come
onto information that would have jeopardized American security.
And, in many cases, the press chose not to reveal such information.
Perhaps the most famous is when the New York Times had learned
in advance of the plan to invade Cuba, and at the request of the
Kennedy administration, sat on that information. I think President
Kennedy said later he had wished the New York Times had gone
ahead.
Mr. FOWLER. Well, I understand that, and you heard all the dis-
cussion this morning. I just don't-if there is a difference between
the journalist writing about our missile secrets and our coding system
and revealing CIA agents, I would like to know what it is. It seems
to me that that is a parallel, and we don't need an official secrets act
or D notices like they have in Britain for most major newspaper chains
to act responsibly. But I can't believe that you or your counsel would
toll me that you don't think the Government would have a right to
prosecute if a story was written that, based on a reporter, no inter-
vening source, came up with our missile sites and published it.
Mr. SANFORD. If I may, sir, I think the situations are not exactly
analogous. You are talking about proposed legislation here aimed at
one specific arm, and the other situation you are talking about is more
akin, maybe, to the Progressive case that we saw a few years ago. And
that established body of law has as its premise that if the Government
can establish a clear and present danger-immediate, irreparable harm
to national security-if that high burden of proof can be met, then a
conviction can be had under existing laws. I think that is what you are
talking about in the example that you posit, and here we are talking
about a piece of proposed legislation which. I would just echo some
of the comments that Bob Lewis has made, does not depend on the
existence of immediate, irreparable harm.
I think the problem that the press has with 501(c), and it is pri-
marily just that section that they have the problem with, is that the)
don't understand exactly how it is going to be effective to achieve its
intended purpose, but they do see how it is going to be effective to
achieve a host of undesirable affects for them.
Mr. FOWLER. Yes; but that is another question.
Mr. SANFORD. I understand.
Mr. FOWLER. I cannot-and I say this with absolute due respect-I
really can't believe that you believe the examples that you gave about
the Embassy takeover in Tehran and the Watergate, that those ex-
amples, publishing that you say would bmade criminal by H.R. 4,
that the double intent element that is in 501 (c) right now could have
been met in those cases.
Mr. SANFORD. The question is we don't know. They could be. That is
the problem, I think, that Bob was trying to allude to : When an editor
calls up his lawyer in advance of publication and says well-, we have
this 501(c) now, what are we going to do? The lawyer can say that is
clearly unconstitutional, or we believe that is unconstitutional. We
think that in the legislative history, many constitutional scholars told
Congress that.
Mr. FOWLER. But you do that in libel cases all the time. You have to
call your lawyer 10 times a day when you publish any story except
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about us beleaguered public servants, before you write anything. You
talk to that lawyer a hundred times.
Mr. SANFORD. I don't think that is necessarily true, at least for a lot
of publications and broadcasts. But be that as it may, the lawyer can
say that or
Mr. FOWLER. Well, it might be a little stretch of the records about
how many times a day the libel laws are consulted before a major
newspaper goes to press, but I know it is considerable.
Mr. SANFORD. Sir, in libel we are talking about an entirely non-
criminal area of the law, for one thing, and here we are talking about
proposed criminal statutes.
Mr. FOWLER. Well, one you lose money, the other you could be put
in jail, but still, the principle seems to me to be the same. There are
restraints on publication. There are serious restraints on publication.
Every responsible newspaper, you know, understands that and as to
deal with it within the framework of the law, in the libel case.
Mr. SANFORD. Yes, sir, I agree with you, with respect to false in-
formation. That, after all, when we are talking about libel, is what we
are talking about, false information.
This statute does not talk about false information or mistaken in-
formation, at least not yet, and I think here we are talking about the
publication of accurate information, and that is a different story, I
think.
Mr. MAZZOLI. I'm sorry, the gentleman's time has expired. I will
yield him a little part of my time.
Mr. FOWLER. Thank you, Mr. Chairman.
Where are we? Have you looked at it enough, do you think we can-
you know what we are trying to accomplish, and I don't think for a
minute it was all accusations, and we are not trying to suppress, we
are not trying to stifle, we are not trying to avoid full, robust treat-
ment under the first amendment. We are trying to keep people from
fingering CIA agents and getting them shot at, having to start all
over again.
Is there a way we can do that, in your opinion?
Mr. LEwis. I think our counsel and the counsel for other organiza-
tions do not know of language that would accomplish what you are
trying to do without raising the spectre of criminalization of publica-
tion of news stories. And we also have a question about whether the
CIA and the drafters of 501 (c) have thought out whether or not this
is going to stop what they are trying to stop.
What would prevent a person from--
Mr. FOWLER. Now, that is a, legitimate debate, and I agree with that
completely on any piece of legislation.
Mr. LEwis. What would prevent a person from dropping a letter
in a mailbox, an anonymous letter, making an anonymous telephone
call, arranging for the publication of these names in a foreign journal
such as a Cuban publication? It seems to me there are so many ways
a person intent on publicizing what he believes are the names of agents,
that 501 (c) is not going to stop the practice. Instead it's going to
stifle a lot of legitimate news reporting while really not stopping
Mr. Wolf, if that indeed is what his life mission is all about.
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Mr. Fowl,-ER. Well, that is where we disagree. And I won't continue
to probe it. I just won't, because I know that you recognize, and the
people that you represent, journalists that you represent, realize that
No. 1, this is a big problem, something that we all are searchinfor
how we balance these equities and address the problem, and Ito
pe
that through your-and since the power of the press is as powerful
as it is. that you will just keep looking at it.
In other words, please forgive me. I just don't want you as a really
responsible organization to make the foot in the door argument that
every other organization makes about any price of legislation. You
know, well, we can't legislate that if you do this little bit, and we are
going to throw away the whole first amendment. And we are going to,
you know, we are going to keep trying and see what we can do.
Mr. MAZZOLI. Let me reclaim the last 2 minutes of my time to re-
iterate what the gentleman from Georgia has said. I think he has been
on the right track all morning, and that is I think anyone who has
sat here and studied what we have done or are seeking to do know that
we are not trying to diminish the influence of the legitimate press and
even the illegitimate press. We are not really trying to suppress and
stifle, and overwhelm this thing. We are trying to solve a really press-
ing national problem. What do you do with those people who have
accepted their Government's call to serve aboard in positions, as was
said earlier, hostile and semihostile situations, when they are being
fingered right and left by some two-bit operation sworn to destroy
the intelligence capability of this country? That is what we are trying
to stop.
And when we hear from the legitimate press and all of the experts
that you can't do it and if you do it it is going to have all these slop-
over effects and ramifications, you know what we are going to wind
up doing is probably a further imperfect job. In other words, you are
really not helping us because then we are thrown upon our own efforts
to solve a problem that we know exists, and we are going to do it with
whatever is the means at hand.
It is just like, you know, you don't have to support the bill, but if
there is a way to draft something which approximates what the gentle-
man from Georgia has been driving at all morning long, solving the
persistent problem where people name the names. He says and I say
and I have asked this many times, I don't think you have got to name
the names. I still am not of the belief that you have to do that to get
your point across. If you insist on naming names, then it is our point
that when. that happens and certain things ensue or are likely to ensue,
then those people ought to go to the slammer. It is just that simple.
And maybe you can help us.
But in any event, you have been helpful with your observations. You
have again defended the society very well, and again, as I said, I am
not greatly persuaded, but you have done a good job and we thank you
for your time today.
Mr. LEWIS. Thank you.
Mr. MAZZOLI. We would stand adjourned until 1 o'clock this
afternoon.
(Whereupon, at 11:40 a.m., the subcommittee recessed, to reconvene
at 1 p.m. the same day.]
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AFTERNOON SESSION
Mr. MAZZOLI. The subcommittee will come to order.
This afternoon's session is the last of our subcommittee's hearings
concerning H.R. 4, the Intelligence Identities Protection Act. To cap
our discussions, which have been very interesting up to now, we have
invited this distinguished panel of scholars.
Appearing with us in sort of a left-to-right situation on the panel-
I say that just from the standpoint of geography, not political persua-
sion, Mr. Floyd Abrams, presently a partner in the New York law firm
of Cahill, Gordon & Reindel and a visiting lecturer at Yale Law
School. Of course, Mr. Abrams has been frequently before this com-
mittee and before the Supreme Court on matters of this genre.
The next member is Mr. Philip Heymann, who is a former assistant
attorney general for criminal matters at the Justice Department and
now professor at Harvard Law School. Mr. Heymann was a major
architect of the Classified Information Procedures Act, the so-called
graymail statute, and has also appeared before this committee and the
Judiciary Committee on which Mr. McClory and I also sit.
And I understand that your classmate at Harvard Law and also now
the gentleman seated to your left is the third witness, Antonin Scalia,
who is a professor at the University of Chicago and currently at Stan-
ford as a visiting professor, former assistant attorney general for the
Office of Legal Counsel.
And we again would ask the gentlemen to make their statements in
whatever fashion you wish, and then there will be questions from the
subcommittee.
Would the gentleman care to say anything?
Mr. MCCLORY. No; thank you.
I would just like to join the chairman in welcoming these distin-
guished witnesses.
Mr. BOLAND. I want to join him, too. I think we have a very distin-
guished array of legal scholars.
I might say to Floyd Abrams, you are the one man in this Nation
who can turn Pat Moynihan around easier than anybody else. I thought
he was all for this bill a year ago, and all of a sudden he quotes you in
the Congressional Record, and he did, I think, not an about face, but
I think probably your position on it convinced him that it ought to be
looked at a little bit more closely.
Anyway, we are delighted to have you. You are a distinguished
scholar and an outstanding constitutional lawyer. And I think that can
apply to both Mr. Scalia and also to Phil Heymann.
Phil, we are glad to see you again. You have been before this com-
mittee many times, and the service you have given to the Department
of Justice during your time in Washington was very helpful to this
committee.
Mr. HEYMANN. Thank you.
Mr. M &zzoLI. Thank you very much.
Mr. Abrams H
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103
STATEMENT OF FLOYD ABBAMS, ESQ., CAHILL GORDON AND
REINDEL, NEW YORK, N.Y.
Mr. ABRAMs. Mr. Chairman and members of the committee, as has
been said, I have had the honor of testifying here before, and I think
I can spare you the burden of my rereading anything I have had
occasion to say to the committee before. I have prepared a statement
which I would simply like to have submitted for the record, if I may,
today.
Mr. MAzzom. Without objection it will be made a part of the record.
[The prepared statement of Mr. Floyd Abrams follows:]
,
Mr. Chairman and Members of the Committee : Having had the opportunity
to testify before this Committee last year and having not, I must confess, changed
my own views to any significant degree as to the matters as to which I testified,
I think I can relieve the Committee at the outset of any apprehension that
I will simply re-read last session's testimony. It must, I appreciate, be difficult
enough to listen once ; to do so again might violate the 8th Amendment to the
Constitution relating to cruel and unusual punishment. To the extent my former
testimony may be of any interest to you, it is contained in the published version
of the hearings of this Committee and I respectfully refer the Committee to that
testimony for the text thereof.'
Before proceeding with a summary of my views regarding H.R. 4, I would like
to compliment the Committee for what I believe to be its most constructive
efforts at narrowing some of the more troublesome aspects of H.R. 5615 as it was
introduced last year. While you may not be surprised to hear that I do not be-
lieve the Committee has gone far enough-and, indeed, I remain of the view
that Section 501(c) raises constitutional problems of the gravest nature-the
changes already made by the Committee have been substantive and useful.
Perhaps I can be most constructive, at the outset, in offering my own brief
comparison of the operative language of Section 501(c) of H.R. 4 and S. 391. The
basic language of Section 501(c) of H.R. 4 would make criminal the activities of
any individual, notwithstanding his lack of authorized access to classified in-
formation, who "in the course of an effort to identify and expose covert agents
with the intent to impair or impede the foreign intelligence activities of the
United States, discloses, with the intent to impair or impede the foreign intelli-
gence of the United States, to any individual not authorized to receive classified
information, any information that identifies a covert agent 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 rela-
tionship to the United States...:'
The equivalent language of S. 391 would make criminal the disclosure by any-
one-again, notwithstanding the lack of having had authorized access to classi-
fied information-who "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. disclose
any 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 Sates is taking affirm-
ative measures to conceal such individual's classified intelligence relationship
to the United States...."
As is evident, the language of the two bills has much in common, far more
than any differences in the language. If I were put to choosing between the two
hills, I would have significant difficulty : S. 391 seems preferable to me in requir-
ing proof by the Government of "a pattern of activities intended to identify and
1 Hearings before the Subcommittee on Legislation of the Permanent Select Committee on
Intelligence, House of Representatives, 96th Congress, second session, at p. 45.
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expose covert agents" than the language of H.R. 4 which requires what seems to
me a lesser degree of proof of participation in "an effort to identify and expose
covert agents." However, H.R. 4 has the added protection of requiring that the
effort be made with "the intent to impair or impede the foreign intelligence activi-
ties of the United States" and that the disclosure be made wtih the same intent.
S. 391 requires, instead, nothing more than that the "pattern of activities" be
engaged in "with reason to believe that such activities would impair or impede
the foreign intelligence activities of the United States" ; it contains no require-
ment of any improper intent in disclosure at all. To this extent, H.R. 4 seems
preferable-although, as I will urge, the intent requirements of H.R. 4 do not
go far enough.
Since I view myself as free to reject some or all of both pieces of legislation,
however, I would like to address at this time some of the difficulties I have with
the drafting of Section 501(c) of both bills. My main difficulty relates to a sub-
ject about which I spoke last year : the legislation continues to make it illegal,
at least under some circumstances, to disclose (or, as I view it, redisclose) in-
formation which is already public. Section 501(c) of H.R. 4, for example, would
appear to permit prosecution of any newspaper which identifies an already
widely disclosed covert agent in the course of a news story, so long as the identi-
fication is believed to be part of "an effort to identify and expose covert agents",
the effort is undertaken with the intent to "impair or impede the foreign in-
telligence activities of the United States" and the disclosure is made with the
same intent.
My difficulty remains that many news stories published about the CIA are, by
their nature, of a sort to be troubling to that Agency and, on occasion, to the
Department of Justice itself. One does not have to stretch one's imagination un-
duly to imagine a Department of Justice which concludes that a newspaper has
the requisite bad intent and which recommends its indictment when the news-
paper has, say, denounced cartain foreign intelligence activities of the United
States and in the course of its denunciation, referred to illegal activities of CIA
agents whose identities the United States has not made public but which have
already become notoriously well known. I continue to believe that Section 501(c )
of H.A. 4 affords insufficient protection against such prosecution.
H.R. 4 does, to be sure, require proof of "an effort to identify and expose covert
agents" and I do, as I have said, take some comfort from that. Presumably, as
this Committee's Report of last year indicates, it can be argued that there can
be no successful prosecution unless the defendent had "made it a practice to
ferret out and then expose undercover officers or agents for the purpose of dam-
aging an intelligence agency's effectiveness." (Report at p. 13) While such
legislative history is of some potential future help in limiting the breadth of the
statute-and I urge this Committee, whatever else it does, to repeat and per-
haps expand it-it cannot, of course, overcome the language of the statute
itself.'
And, indeed, reading further in the Committee's Report of last year gives
me, if anything, less comfort, not more. For when the Committee reports that
"whistle blowers, those who republish previous disclosures, and critics of U.S.
intelligence would all stand beyond the reach of the law if they made their
disclosures for purposes other than the impairment of United States intelligence
activities," there is, I'm afraid, an insurmountable problem posed. It is that,
as the Department of Justice testified last year, there is a constitutional right
to intend to impair intelligence activity by writing about it based upon infor-
mation which was lawfully obtained. What is not protected-what has, in fact,
been held to be constitutionally unprotected intent-is to have the "intent or
reason to believe" that one's disclosure "is to be used to the injury of the United
States or the advantage of a foreign power. . . ." That kind of intent, which is
required by our Espionage Laws ,8 is, to be sure, difficult to prove. But it is
supposed to be. The lesser intent requirement of H.R. 4, not to say the essentially
non-existent one of S. 391, seems to me inadequate.
I wish to be clear. While I am not reassured by the intent requirements of
Section 501(c), I do take some comfort from the "effort to identify and expose"
language. It is a substantive contribution. But not enough, since I remain con-
' See, e.g., International Brotherhood of Teamsters V. Daniel, 439 U.S. 557, 558 (1979)
["'[t]he starting point in every case involving construction of a statute is the language
Itself' "].
? See generally, United States v. Gorin, 312 U.S. 19 (1941).
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cerned that the required "effort" might be deemed to have been made by virtue
of a straight-forward, extremely critical journalistic account of CIA activities
abroad, or, indeed, at home, which refers to an already identified agent.
Let me put this thought in a different way. What could be done to limit the
potentially unconstitutional effects of Section 501(c)? One view-what, in fact,
I urged last year-was that no language such as is contained in Section 501(c)
is likely to survive constitutional scrutiny. I believe that last year and I still
believe it ; the publication of public domain information cannot, I believe, be
made unlawful. But suppose I was-and am-wrong. How then could Section
501(c) be drafted so as to be more likely constitutional?
One approach might be to redefine-and further narrow-the circumstances
under which disclosure by third-parties of the names of agents is made criminal.
Perhaps it could be made clearer still that, as the Senate Committee on the
Judiciary urged last year, legislation be directed only at those "engaged in a
purposeful enterprise of revealing names- ... In short, [those] in the business
of 'naming names."' (Calendar No. 1103, Report at 17). Perhaps you could
make it clear, as the Senate Judiciary Committee attempted to last year, that
the bill does not cover disclosures which are an integral part of an activity pro-
tected by the First Amendment. Perhaps you could, as well, narrow the definition
of "covert agent," at least for purposes of Section 501(c), to import into it the
notion that that which may not be disclosed must be, at a minimum, classified
information identifying a CIA agent functioning abroad. And, of course, you
could make clear, if you agreed with my general thesis today that republica-
tion of already disclosed material is not criminal.
In offering these suggestions, I cannot, in candor, advise the Committee that
even if adopted, all First Amendment doubts about the legislation (mine in-
cluded) would be assuaged. They would not. Nor can I even assure you that with
such changes, Section 501(c) would accomplish its intended ends: the more
one takes account of First Amendment interests in drafting H.R. 4, the less
suited to its stated ends the statute may be. But if steps were taken at least
to move away from the visage of prosecutions arising out of the republication of
public domain material, you would have taken some giant steps towards making
the statute consistent with-or, at least, less inconsistent with-the First
Amendment.
Mr. ABRAMs. And if I may, I would just like to summarize a few
things from it so that we can go on to what I am sure we will all find
a more useful process of questions and answers.
First I would like to congratulate this committee on what I believe
to be its most substantive efforts and achievements already in limiting
the scope and breadth of the statutory language that have been before
it. I think the changes that have been made are significant and most
constructive, and if I for one happen not to think they go far enough.
I want to assure the committee that I think that they have gone a
good deal of distance and have made a significant difference in the
statute from that which would have existed without the current
changes.
I come to you as I did last year with one thought which sticks with
me I think still more than any other. It remains my view that it
would not pass first amendment muster to make it a crime for an in-
dividual with no connections with the Government whatsoever to dis-
close information which is already in the public domain and which
is not classified, and which may in fact have been widely repeated
previously.
I believe this is so, notwithstanding the intent of the speaker, and
notwithstanding thst the information being disclosed is part of some
broader effort to disclosure.
I don't think I will devote my time except in response to questions
to that theme, though. I think the most constructive thing that I could
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do is to offer you some thoughts with respect to section 501(c) of the
bill as you have written it, as the Senate has written it, and to as-
sume that some form of section 501 (c) is to be included. I simply assert
to the committee for whatever interest it may have that to the extent
that any version of section 501(c) continues to permit the prosecution
of a journalist, say, or a newspaper, for republishing material al-
ready published which is not classified, that I do not believe that
it can be deemed constitutional.
I would like to say a word or two about the question of intent which
is not something that my statement says much about, but which was
dealt with at some length this morning. It seems to me that you have
a few different types of choices as to what to do about this issue of
intent as you draft the statute. First, you have to decide whether to
have any intent requirement at all. H.R. 4, of course, has a double-
intent requirement, and the Senate bill really has no intent require-
ment at all. If I had to choose between those provisions, and if I had
to assume that there would be no amendments and that one of the bills
would pass, I would go in the direction that you have gone, even
though-for reasons I will indicate-I am not entirely satisfied with
how far you have gone. But I do think that it is useful and construc-
tive and creates an additional constitutional cushion to constitutional
challenge to have an intent requirement in the statute.
If you are going to have one, the question is what kind? One sort
that you might have which is more demanding than the one that you
have in your statute now would be closer to that contained in the
Espionage Act as it currently exists, and that would be some kind of
intent to cause harm to the United States or to benefit a foreign coun-
try. That at least we know is constitutional because the Supreme Court
has told us it is constitutional. It is a difficult burden for the Govern-
ment to meet. Understandably, the Department of Justice is reluctant
to take on the burden of showing that kind of intent, but if the commit-
tee were favorably inclined towards the inclusion of some kind of
difficult to meet intent requirement such as that, I think it would go
a long way towards leading a court finally to say that the statute
was constitutional.
There is another way to approach the intent question, and that is
to require a different kind of intent altogether, and that is an intention
on the part of the speaker to cause some kind of illegal conduct. There
are a wide variety of cases, starting with Brandenberg v. Ohio in
which the Supreme Court has said that it is constitutional to punish
certain types of speech which lead inevitably and almost immediately
to violent action if the intention of the speaker is to lead to that action
and if it is likely that the action will follow. Any such intent stand-
ard in the legislation would be constitutional. Whether it would serve
the ends of the statute, or to put it differently, whether it would
frustrate the purposes of the statute is something I don't really
know. But if it would not, it would certainly be a constructive way
I think for you to look at the question.
A final point, and then I will pass to my centrist colleague here.
If there were anything that you could do to make it clear that
what this statute is designed to deal with is simply naming names,
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the people, as the Senate Judioaxy Committee put it last year, in the
business of naming names-if, as I understand it, that is your in-
tent-it would have I think a very significant and positive effect.
I know, or I can suspect what it may sound like to some of you
to have either myself or perhaps people more closely alined in our-
nalistic enterprises, come before you and use the phrase "chilling
effect" in a context in which you may not be persuaded that the press
is ever chilled about anything. Nonetheless, if there are any steps that
could be taken to make it clear within the statute itself that you
don't mean to cover a journalistic expose of alleged CIA misconduct
which in the course of that article or articels refers to the individuals
who are actin ng in a way that the journalists or newspapers believe is
improper, I think it would have a very positive effect indeed.
Now, that assumes something I think I am entitled to assume, hav-
ing sat here today, having read the hearings last time, I think being
reasonably well informed as. to what everyone has said the purpose
of this bill is--of the Senate bill is-of all the bills that have been
introduced, I don't think anybody really has been seeking some kind
of mechanism which could lead to the indictment of journalists for
some story of the sort that I described. The difficulty, though, is that
it is very, very hard to draft language which does not allow that kind
posit to you as some angry
of indictment to follow from whm~t I will
administration someday at some articles such as I have just imagined
for you.
So if there were anything to be done either in the statutory lan-
guage or by way of other language at a different place in the statute-
again, there were some suggestions along that line by the Senate Ju-
diciary Committee last year-I think that would be a very useful
addition to the legislation.
So, to sum up my summing up, I come to you as someone who can-
didly has deep-seated problems with section 501(c) in almost any
form. I think I said at one point last year that it just didn't "write"
as a lawyer tries to write things, that every time someone tried to add
something on to make it more likely constitutional, you seemed to
move away from what the draftsmen of the statute wanted to accom-
plish by it. That be sometimes. Usually in that situation, if one
were writing a brief, one would say let's start all over again because
it just isn't working this way.
But if you are going to proceed with a 501(c) (3), I would urge
on you the considerations that I have set forth; I would urge on you
some way to make clear, or at least as clear as possible, that you are
dealing with the republication situation, some way to deal with the
intent problem in a fashion I would urge upon you even more vig-
ilantly than you have, .and surely more vigilantly than the Senate
version does, and some way to get out of the potential reach of the
statute the rather ordinary, commonplace, significant and first amend-
ment protected journalistic activity that I have previously referred
to.
Thank you, Mr. Chairman.
Mr. Mazzom. Thank you, Mr. Abrams.
Mr. Heymann, welcome.
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STATEMENT OF PHILIP B. HEYMANN, ESQ., PROFESSOR OF LAW,
HARVARD UNIVERSITY LAW SCHOOL, FORMER ASSISTANT
ATTORNEY GENERAL, CRIMINAL DIVISION, DEPARTMENT OF
JUSTICE
Mr. HEYMANN. Thank you, sir.
I do not have a written statement, in part because I don't have a
typist.
[General laughter.]
My views flow very nicely from Mr. Abrams' because I would like
to describe in a little bit more detail the problem of drafting, and I
think it is the exact same problem Mr. Abrams is describing, and make
a suggestion which I don't believe solves all problems. Eventually this
remains a very difficult area, perhaps impossible to be satisfactory in
drafting a statute, but my suggestion still helps some, I believe.
I am very struck in reading over the testimony in the reports with
the fact that the legislative history sharply distinguishes the two cate-
gories of people that this committee and the other committee in the
House and the two committees in the Senate are concerned about, and
everyone agrees what they want to happen in those circumstances. I
have not seen any indication that any dissenter or majority Congress-
man or Senator, speaking in a committee report, wants to see a reporter
subject to the chilling threat of prosecution, let alone conviction, for
writing a story that he has obtained either legally, from public sources,
or without inducing a breach of confidence, from an agent, that exposes
what he regards as abuses by the CIA or any other intelligence agency.
Reporting, everybody seems to agree, has to be protected.
At the same time, it is a little hard to swallow the notion that aiding,
purposely aiding or purposely encouraging foreign nationals or for-
eign powers, governments or organizations or groups, to take actions
against an American intelligence operation abroad is protected activ-
ity. In other words, if we were to pass a statute or be contemplating a
statute which said that it is illegal for an American anywhere in the
world to conspire together, to agree together with foreigners to inter-
fere with, inhibit, threaten, harass American intelligence operations
abroad, that wouldn't sound like a first amendment problem at all, and
it would sound like a rather natural thing to do.
With those two pillars that everybody agrees on, the problem be-
comes that it is strangely difficult to draft a statute that gets at the
people who want to assist foreign nationals and foreign powers to
interfere with American intelligence operations and does not get the
reporter who is writing a story describing what may be his lone, idio-
syncratic
view of intelligence abuses.
My own view is that if it is impossible to get one without the other,
I would rather see no statute. I also believe that there is a real consti-
tutional problem here. I have gone back and I have read the cases. I
don't think anyone can say conclusively that the bills as written would
be held unconstitutional, but I think that there is a 50-50 chance that
the bills as written would be held unconstitutional. There is a real
constitutiopal problem. I don't think anyone can deny that.
There are two ways that one could possibly make a distinction be-
tween the activities everyone wants to protect and the activities that
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everyone wants to prohibit. One way is to describe the actions and say
that one type of action is prohibited and one is permitted, and there is
some effort to do that in the bills, particularly in the Senate Intelli-
gence Committee, which adds a notion of a pattern of activities. I
don't think that helps much, but what they are trying to do is describe
the actions differently. You have in your bill a course of action.
Another type of distinction in activities is one that is like the final
Senate Judicary Committee bill, one that said if the action is integral
to free speech, then it is protected. That is a very broad form of pro-
tection, but again, it describes a type of activity.
The other way one could try to distinguish between the two-and
I think it is the more promising, as Mr. Abrams I think may have been
suggesting, too-is in terms of intent, the purpose.
I would like to just spend about 2 minutes walking you through the
way this is done in the different bills and then urge that I would draft
the prohibition with a requirement that there be a purpose to encour-
age or assist foreign nationals or foreign powers to impair or impede
the effectiveness of covert agents or the activities in which they are
engaged. I think that that purpose is rather cleanly stated. It is an
intent, purpose. You have to want it; you have to want to encourage
or assist foreign nationals or foreign powers in impairing or impeding
the activities of agents or their effectiveness, and you could add the
word "abroad."
I recognize that doesn't solve all problems, but I think it is better
than any of the bills there are so far-better than any of the intent
provisions so far.
I hesitate to restate the drafting problem, but I think it is helpful.
I think you all know it. The drafting problem is that if someone tips
off a reporter to the fact that the CIA is infiltrating the International
Boy Scouts or has made arrangements for a coup in Burma, both of
which I make up out of thin air, and if a newspaper puts a set of people
to work trying to find out whether that story is true, with the intent
of publishing it, it seems to fit within all the language that each of the
bills has in their drafting, and yet, as I read everything that everyone
has said, nobody wants that type of reporting to be stopped by a stat-
ute. I am talking about from public sources. <
In this committee's bill, the crucial language in the course of an
effort to identify and expose covert agents,' is the first protection, but
if the reporters were engaged in trying to find out whether Boy Scout
masters or chief Scouts around the world were CIA agents, they would
be engaged in the course of an effort to identify and expose covert
agents.
This committee goes on with a second protection in the form of "with
intent to impair or impede the foreign intelligence activities of the
U.S.," and that is required again for disclosures, but that intent lan-
guage has the following problem about it, a couple problems. It may
very well be that the newspaper, the network, the reporters do believe
that infiltrating the Boy Scouts is a bad thing, and they may want to
cause this committee and the Senate committee and the public, and
Congress as a whole to prevent that thing in the future, that type of
activity.
The language of the bills does not make clear that a purpose to cause
legitimate public and legislative action or executive action to remedy
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an abuse by the CIA is not a purpose to impair or impede the foreign
intelligence activities of the United States. It is a purpose to bring a
certain type of activity to a halt.
If the language of intent to impair or impede is really meant to say
you disapprove altogether of the United States having a CIA or an
intelligence apparatus at all, you have other problems, and they are
the problems that the Justice Department has brought up and Ken
Bass has brought up. They lead you a little bit to punishing only those
who are broadly critical of the CIA and not those who are narrowly
critical. They also create a very difficult trial problem for the Justice
Department, which it has repeatedly emphasized, of proving that some-
one is opposed to all intelligence activities. You could imagine the
authors of "Covert Action" appearing and saying : "No, we are not
opposed to all intelligence activities. We don't want to impair and im-
pede all of them. We just want different ones." That intent language
doesn't seem to me to help too much.
The Senate does two things, as you know. One, they changed the
definition of activities by requiring it to be a pattern of activities
intended to identify and expose covert agents. That suggests a plan,
but once again, the Washington Post or the New York Times or CBS
that sends out a team of reporters to find out whether a dissident group
in Burma is being backed by the CIA, or whether the Boy Scouts are
infiltrated, itself is engaged in a pattern of activities.
It has a plan to identify and reveal what the CIA is doing secretly,
and that involves revealing that certain people are working for the
CIA who are pretending not to. The pattern of activities helps a little,
but it doesn't help much.
In order to get away from some of the problems with intent, the
Senate Intelligence Committee requires there only to be a reason to
believe that it will impair or impede U.S. intelligence activities. I am
afraid that language is very broad. If you require only reason to be-
lieve that the CIA will no longer be able to use the Boy Scouts as a
cover, or will no longer be able to work in Burma effectively, whoever
pursues that story for CBS, ABC, or the Chicago Tribune, is going to
have reason to believe that it will impair those specific activities. It
will impair those activities. I know it.
There is a lot of language in the legislative history where there seems
to be a feeling that the language of intent gets you out of there. The
picture, I think, in the House legislative reports and in the Senate
legislative reports is a little bit that Agee and Wolf intend to reveal the
names of agents, whereas a reporter intends to write a story. I don't
think that really helps you when you analyze it. Agee and Wolf intend
to cause action to be taken against the CIA, or to get the CIA out of
South America or Africa or Europe. That is their ultimate intent. They
just have as an intermediate vehicle disclosing names of agents.
The New York Times has an intermediate intent to disclose the
names of agents, disclose the fact that somebody in Burma is really a
CIA agent. It has an ultimate intent of telling a story or selling
newspapers or whatever. I don't think the language of intent really
walks you away from the problem.
All right. Let me now sum up. Assuming that a purpose to bring
CIA activities to the attention of the American public and to the
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American Congress is to be protected, and that that often requires
identifying particularly foreign sources, sometimes agents, but par-
ticularly foreign sources; and assuming that a purpose of helping and
bringing an immediate response from foreign nationals designed to
interfere with and inhibit intelligence activities abroad is to be pro-
hibited-and I do not think that is protected by the first amend-
ment-the starting place I think is to define the prohibited activities
and intent clearly in terms of a desire, a purpose, an intent to encour-
age or assist foreign nationals and foreign powers to interfere with
the effectiveness of covert agents or the agents themselves abroad.
I think this definition of the criminal intent does capture the pur-
pose that the members of this committee and the members of the other
committees, have. I think that is the purpose, to prevent the type of
direct action abroad that is facilitated, encouraged by Agee, Wolf,
and those who reveal names, abroad.
It is also very helpful if that is made a part of 501(c) because it
takes the press and the legitimate functions of the press a long way
in terms of protection. It would be at least quite a reach to say that
people writing a story in a national magazine or for television or a
newspaper have as their purpose to assist foreign nationals and for-
eign groups in directly interfering with the activities of the CIA
agents abroad. It is not a very plausible purpose to attribute to a
newspaper or to a television network.
I think that is a better line and a more promising line than trying
to define the activities in different ways, in terms of a pattern of ac-
tivities. Maybe the pattern of activities is good, maybe it is bad, but
the pattern of activities doesn't take you far in distinguishing the
reporter from the name listers abroad. The purpose takes you further
and does better.
The purpose I think goes a long way to solving the first amend-
ment problems. I think it is a very close question, as I indicated, with
the present statutes. I think it would be something of an embarrass-
ment if the statute were held unconstitutional, and I think this pur-
pose which captures what you are trying to reach is far less likely to
be held unconstitutional.
It leaves difficulties. I don't want to suggest, and I do not believe,
that redefining that purpose in the bill as I suggest would solve all the
problems, but the problems it leaves behind are the problems that all
the drafts have. I think it is an improvement on all the drafts, but it,
like the others, leaves behind certain problems. If people who want to
name names abroad in order to encourage direct action do it in the
form of publishing a newsletter in Washington, D.C. and then ship it
abroad to subscribers, it is going to be hard for a court to distinguish it
effectively from Newsweek or Time.
Proving the purpose of assisting foreign nationals and foreign
groups in their efforts to interfere with U.S. intelligence activities is
going to require a recourse to the history of the people who are doing
it and the character of the information disclosed. Are they giving
names and addresses as Wolf did in Jamaica, and car models? This
would seem to me to be a strong indication that they are trying to
encourage direct action abroad. It will depend a little bit on how much
a court would reasonably conclude from the fact that there is a long
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list of names thinly covered by a story, because the names may be
thinly covered by a story.
But what you will be accomplishing if you define 501(c) in these
terms is you will be guaranteeing yourself, I believe, a constitutional
statute. You will be defining with precision what you mean to be dis-
approving, what is impermissible. You will be guaranteeing to the
press that it has less to fear from open stories. And in a significant
number of cases, maybe not every one we would hope, but in a signifi-
cant number of cases, the Justice Department will have a good chance
of reaching egregious conduct abroad.
Thank you, Mr. Mazzoli.
Mr. MAZZOLI. Thank you, Mr. Heymann.
And now we have the third person on our panel, I guess the cleanup
hitter in the baseball jargon, Mr. Scalia.
Mr. ScALIA. I think they try to bat third the fellow that hits a sin-
gle. I'll settle for one base.
STATEMENT OF ANTONIN SCALIA, PROFESSOR OF LAW, STAN-
FORD LAW SCHOOL, FORMER ASSISTANT ATTORNEY GENERAL.
OFFICE OF LEGAL COUNSEL, DEPARTMENT OF JUSTICE
Mr. ScAmA. Mr. Abrams advised me to begin by saying that the
first amendment is not an absolute. I will accept that advice, and will
add that I think that that proposition is merely a subpart of the more
general proposition that the Bill of Rights is not a suicide pact.
I don't think that anyone on the panel is going to disagree with
either the specific or the more general proposition. Sometimes, how-
ever, the terminology and the rhetoric of first amendment j uris-
prudence is tossed about in such a way as to imply an absolutism that
in fact does not exist. I refer to such terminology as "overbreadth,"
which surely accompanies all efforts at legislation and indeed all ef-
forts a human expression other than mathematical-I suppose includ-
ing my current expression. And I refer to such examples of first
amendment rhetoric as "chilling effect," which of course describes a
phenomenon that can never be entirely avoided.
I object to neither the terminology nor the rhetoric. The former is
necessary for analysis and the latter is useful as a reminder of the
fundamental importance of the freedom we are dealing with here. But
neither should be taken to represent absolutes. Some overbreadth is
permissible and some chilling effect is unavoidable.
The constitutionality of a criminal provision affecting freedom of
speech may be viewed as turning upon three principal factors : first,
the importance of the governmental interest which the provision seeks
to protect. Laws directed against incitement to riot, for example, will
fare better in the courts than those designed to preserve public taste
and decorum. Second, the importance of the type of speech that the
provision seeks to proscribe. Laws directed against commercial speech,
for example, will fare better than those directed against the propaga-
tion of political doctrines. And lastly, and most difficult, perhaps, the
extent to which the law lays traps for the unwary, or has the effect of
restraining legitimate speech. Laws which penalize, for example, a
knowing disclosure of State secrets will fare better under this criterion
than laws which penalize inadvertent disclosure.
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In all three of these respects, it seems to me the present legislation
aims for and substantially achieves the high end of the constitutional
spectrum. The governmental interest it seeks to protect is of the high-
est importance, national security and those elements of our foreign
affairs which, if not coextensive with national security, are at least
so important that they warrant the attention of our top secret intelli-
gence agencies. Indeed, the governmental interest sought to be pro-
tected is even more narrowly limited than this because it is not all
sorts of national security information against which the disclosure
restrictions here are directed, but only that type which, in addition to
impairing national security, would in the view of Congress endanger
the lives of intelligence employees, agents or assets. That, as I under-
stand from the committee report on H.R. 5615 in the last session, is
one of the purposes of the very restricted definition of covert agent in
the bill.
As to the second criterion, concerning the type of speech affected,
the bill also takes the high ground, it seems to me. It is not all dis-
closure of national security information that is affected, nor even the
disclosure of the existence of covert agents in a particular country, or
a particular sector of our domestic life-which disclosure, if such ex-
istence is undesirable, should suffice to arouse public opinion or to pro-
voke congressional inquiry. Rather, it is only the identification of par-
ticular covert agents that is forbidden. The necessity of this particular,
narrow category of disclosure to the free and open political debate
which the first amendment is intended priunarily.to assure, us, it seems
to me, negligible. In 99-point something percent of the cases, it will
surely be as effective for the New York Times to headline "Author-
itative Information Discloses CIA Has Infiltrated Roman Curia,"
as it would be to recite the particular unknown and probably unpro-
nounceable name of the specific agent. The former headline would be
enough to provoke the public debate, and the latter, the identification
of the particular individual, could be disclosed to the relevant com-
mittees of Congress under a provision contained in the bill. In the
very few cases where disclosure of the particular identity is really
essential to political debate, in my view the courts could be relied upon
to carve out the necessary exception and to find the statute ineffective
as so applied.
The third criterion of constitutionality is, as I have said, the extent
to which the law lays traps for the unwary or has the effect of deter-
ring legitimate speech. The bill seeks to assure compliance with this
criterion, and in my view, adequately does so, in two respects. With
respect to the most controversial provision, section 501(c), it requires
an actual intent to impede or impair the foreign intelligence activities
of the United States. No reporter who is not proven beyond a reason-
able doubt to have had such an intent can be convicted, and the bill
make clear that mere inferences from the fact of disclosure are inade-
quate to contitute such proof. Where a specific, malicious intent such
as this exists, there is, it seems to me, no proper concern about chilling
effect, nor are the courts going to be as inclined to strike down the
entire law on the grounds that some sort of protected speech might
be included even if the particular defendant's speech was not within
that category.
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On this aspect of the matter I do not agree with the feasibility of
Mr. Heymann's first reading of the intent language in 501(c) . I do not
read it as merely meaning an intent to impede or impair our intelli-
gence activities by calling the Congress and the public's attention to
them and enabling the Congress or the public to put an end to them.
I don't think that is the reasonable import of it. If that matter re-
quires any clarification in the legislative history, however, I am sure
that is easily enough done. But I take it to mean to impair or impede
our foreign intelligence activities by, through the act of disclosure,
rendering those activities ineffective-self-operative ineffectiveness,
so to speak. Not looking toward legislative or public action, any more
than a provision in a statute which says "intent to impair the war
effort" could be deemed to cover proposals to the Congress to sue for
peace.
Now, I acknowledge-and this is the second part of Mr. Heymann's
point-that once you accept this more limited interpretation, it is ques-
tionable how much the provision will really cover. Concededly, I think
one must say it will not cover a whole lot. I think it will cover the
activities that I have seen recited in the legislative history of the Covert
Action Information Bulletin-where there has been avowedly an in-
tent to impair or impede intelligence activities, where that was the
whole purpose of the operation. It will be very difficult to prove that
intent in other cases, and I assume that the committee is well aware
of that fact. Given, however, that limitation, it seems to me clear that
the provision is, on those grounds, constitutional.
With respect to section 501 (a) and (b) of course, which are not
as controversial, meeting the third criterion-not laying traps for
the unwary and not deterring legitimate speech-is assured in a dif-
ferent fashion. That is, those provisions are imposed upon a group
whose activities, according to the case law, are more subject to chill-
ing effect, if you will, or deterrence, if you will. Just as civil servants
as a whole may be absolutely prohibited from all political activity, so
also under 501(a) and (b) you are laying more narrow injunctions
without the intent requirement upon those who have voluntarily joined
the intelligence service.
I have several points about the language of the bill which go to
aspects of its constitutionality that I would like to raise with the com-
mittee. First of all, I am not sure what is meant by the phrase in
501(c) "in the course of an effort to identify and expose covert agents
to impair or impede the foreign intelligence activities." It is the
first part of that phrase that I am unsure about. Last year in the
committee report on H.R. 5615, there were two quite inconsistent ex-
planations of this language. At one point it was said that "in the course
of an effort" meant a pattern, and yet elsewhere it was said that a
single disclosure could suffice. I find those concepts somewhat incon-
sistent, and I think the committee should at least clarify which of the
two it means.
I do not think, by the way, that this provision is essential to the
constitutionality of the legislation. I think that the later intent por-
tion of 501(c) would suffice for purposes of assuring the constitu-
tionality. If this provision is retained, however, it should certainly
be made clear what "the course of an effort" consists of.
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Last-I have some other technical points about the bill but perhaps
I can save them for later-I am not sure what the committee means to
achieve by the provision which permits as a defense the fact that the
United States has publicly acknowledged or revealed the intelligence
relationship, and by the provision in 501(c), and in (a) and (b) as
well, that the United States must have been taking affirmative meas-
ures to conceal such covert agent's intelligence relationship. I am not
sure whether the committee conceives that those two provisions mean
that even if the matter is generally known, nonetheless, if the Govern-
ment is still trying to put -a damper on it, and if the speaker or writer
knows that the Government is still trying to put a damper on it, a
prosecution would lie. I doubt whether under such circumstances the
courts would uphold a prosecution. In other words, I think the prin-
ciple of the Heine case would continue to apply, and if indeed the
disclosure is a disclosure of generally known information, even though
the United States is taking affirmative actions to restrain further
publication of that information, I am very dubious that a prosecution
would lie.
Mr. MnzzoLi. Thank you very much, Mr. Scalia and gentlemen.
I will recognize myself for 5 minutes. It is very challenging to talk
to a panel of such eminent scholars when the subject matter is very dif-
ficult to get a purchase on. I think all of you have recognized, and I
thank you for that, that this committee is not about a witch hunt. We
are not trying to intrude upon legitimate reporting about even some
illegitimate Government activities, that we are indeed trying to limit
ourselves to the situation which presents itself where an organization
has sworn to destroy the Nation by destroying its ability to know
what its enemies are doing, and only in those areas do we wish some
action.
So I thank you all for recognizing that, that this committee is try-
ing in its own way to write a very discrete law.
Mr. Scalia put his finger on something that I have tried to talk
about over these last 3 years, and that is I remain today, despite the
efforts of a lot of people who are far more adept at the law than
I am, I remain unconvinced that you have to name names in order to
convey dissatisfaction with a Government policy, in order to try to
have that Government policy changed. And may I ask each of you to
address that.
Mr. Scalia was the only one who perhaps got into it.
Mr. Abrams, do you think as a scholar and as one who has defended
the New York Times, that you need to name names to get the point
across?
Mr. ABRAMS. Mr. Mazzoli, I think in many cases, but not all, you do.
It is possible, always, to phrase a newspaper story in a less definitive
fashion, to write it, as Mr. Scalia suggested with respect to the head-
line, without a name, and to write an article without a name. It makes
the story less real, makes it less defensible. I think it makes it less
meaningful. I can certainly conceive of some stories where there was
no name contained in the story, perhaps indeed for national security
reasons. But I can also think of situations where a story, particularly
one which was, as it were, taking on the CIA, saying, that the CIA
had done something improper, wouldn't have any life to it if you
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couldn't bolster what you were saying by identifying in a very mean-
ingful fashion what had been done, and I would urge upon you ask
part of that, who did it.
So I, do think that there are circumstances in which it just doesn't
work, it doesn't write to do a newspaper story without putting in the
who, what, where, why, how as part of the story.
Beyond that, I think it is important to respond, if I may, to
Mr. Scalia by saying that I don't believe that the essentiality of names
in a news story is a matter for congressional decision. With all respect,
I really believe that that decision has been withheld from Congress by
the first amendment.
Mr. MAZZOLI. Even though the naming of the names might and
could and probably will lead to attempts on the life and perhaps cer-
tainly the rendering of these individuals as becoming ineffective.
So your feeling is that it, the first amendment, is that strong.
Mr. ABRAMS. No, I want to be clear. All I am saying so far is that
the question of how important it is to have a name in a story is a
journalistic question. The question of whether Congress could pass a
law which bans under some circumstances some publications is I think
a different and harder question. But Mr. Scalia's point that it isn't
really essential is something which I don't think is appropriate for a
congressional decision.
If I may say finally-and I will say this very quickly-it does seem
to me that the first question that this committee has, with all respect,
has got to address, is the question of where it wants to come out, that
is to say, what it wants to do. Does it want to deal or not with Mr.
Scalia's example? Does it want to even have the potential of a prose-
cution of the New York Times in the hypothetical that Mr. Scalia
offers you? Even if you think that it is not essential for the Times
or another newspaper to have the name in the story, do you want to
as a matter of policy adopt legislation which could lead to that kind of
prosecution.
I would urge on you that you shouldn't, and I don't think from
what I heard, if I may say so, from any of you, that you do.
Mr. SCALLA. But may I correct my hypothetical? The hypothetical
was made to illustrate solely part 2 of my discussion. You have to add
to the hypothetical when you finish examining the whole bill the fact
that the New York Times in making that publication intended to im-
pair or impede the intelligence activities of the United States. That
would be the full hypothetical.
Mr. MAZZOLI. Mr. Heymann ?
Mr. HEYMANN. Iwould distinguish sharply between two categories
of people covered by the bill, Mr. Mazzoli. If you are talking about
CIA employees abroad, and those are the people we are generally
talking about when we talk about danger, I think there's very few
occasions when their names would be an essential or even a very useful
part of a story.
If you are talking about what is the more difficult question, and
that is, foreigners or U.S. citizens who are not CIA employees but
are cooperating with the CIA, there the public debate may very well
depend on credibly identifying precisely who you are talking about.
Mr. Scalia said it is just as good if the story says that the Vatican
has been infiltrated-is it the Vatican?
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Mr. ScALIA. I said the Roman Curia. It is a little more precise.
Mr. HEYMANN. All right, the Roman Curia has been infiltrated
by the CIA. Well, I would want to know whether you were talking
about the bottom, the top, a lot. Otherwise I wouldn't begin to know
what to make of the story.
The CIA, as we all know, in the 1960's had an intimate working
relationship with the National Students Association. A story that
said the CIA is involved with the National Students Association
wouldn't name names, but it also wouldn't begin to tell you whether
you were dealing with a serious question, a serious problem, or not.
To know that you would have to know that a series of presidents of
NSA, as they were, were working with and for the CIA.
It is in that category of people, not the employee, that I think
it becomes important.
Mr. MAzzoLi. My time has expired unfortunately.
The gentleman from Illinois.
Mr. McCLORY. Thank you very much, Mr. Chairman. I want to
emphasize that we are interested in strengthening the intelligence
agencies. We have had witnesses on behalf of the Government and
others who have come before us indicating that in the absence of a
statute such as the one that we are considering here, that there is a
difficulty in getting persons to serve in covert activities, to serve under
cover, not only American citizens but those of other nations who
serve our interests under cover. And so we are trying to respond to a
need which is sensed by our Government.
We have tried to provide, too, for the situation where it is felt
that some egregious conduct is occurring and that it should be re-
ported. So we have provided that there can and should be a report
to the Senate and House Intelligence Committees, so that the whistle-
blower within the Government under sections 501 (a) or (b), would
have an opportunity, and any third party would have an opportunity,
to make a similar disclosure.
One of the questions that occurs to me is this, that if a person
intends to impede our intelligence agencies by identifying the indi-
vidual who is operating under cover, and if that individual is mur-
dered, unless we have this statute, I don't think there is any existing
statute which would enable a prosecution.
Am I not correct $
Mr. HEYMANN. That is correct.
Mr. McCLORY. I would like to ask this. What about the situation
where a publication identifies someone falsely, do you not feel that that
should likewise be an offense which is subject to prosecution, either by
a person in the Government or a third party?
Do you have any view on that 1
Mr. SCALIA. I don't personally see why that is any more deserving
of prosecution than falsely accusing someone of anything else that
might cause him to be endangered-for example, falsely identifying
him as a leader in mob activities. I find that a problem, but it seems to
me a problem separate from the central problem of this bill, which is to
protect national security interests and the lives of people who are pur-
suing national security interests. The problem of endangering inno-
cent people's lives through false identification seems to me to belong
to a different category of legislation.
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Mr. MCCLORY. What about the attempt to commit the crime? It has
been suggested that since we prosecute persons for an attempt to com-
mit most crimes, that an attempt provision should be added to this
legislation. Do you have an opinion on that?
Mr. SCALIA. Mr. Abrams would probably want to add it.
Mr. ABRAMS. I would have some problems with that, as Mr. Scalia
predicts. I think it is trenching awfully deeply already, even if you
were to adopt all of my suggestions to you, into a potentially protected
first amendment area, if you were to adopt some form of 501(c). If you
were to add to it a kind of attempt to do what? To speak, to participate
in the effort to identify and expose? I am not clear what the operative
act would be.
Mr. MCCLORY. An attempt to identify-well, for instance, trying to
deliver the names of persons and then being interdicted just before
the delivery, or taking the encrypted material from the intelligence
agency and then being apprehended in the course.
Mr. ABRAMS. Mr. McClory, I have no constitutional problems what-
soever in criminal prosecutions for taking things from places where
you are not allowed to get them from, and if there were any way to
prosecute the kind of entities that I think are on everyone's minds, not
for what they say but for what they do before they say it, for example,
for the surveillance activities, I would have urged that on you first if
I had come to think that that was at all a practical alternative. If
their surveillance activities or other in the field activities were subject
to criminal prosecution, I would certainly urge it on you. In any event,
it wouldn't have any significant first amendment implications.
Mr. MCCLORY. Well, attempts to identify, can you conceive of them?
Mr. ABRAMS. I am just not sure what it would mean. I think it would
confuse the area, but I may not have thought enough about it. But I
just don't know what you would have to prove.
Mr. MAZZOLI. Mr. Heymann wants to say something.
Mr. HEYMANN. I don't see anything to be said for attempts other
than the strange type of attempt that you began with, which Mr.
MeClory, is the mistaken identification of someone who is not an agent
as an agent. I think that would have certain advantages in terms of
graymail, and I understand you brought that up, I think correctly, in
terms of a problem with the Senate bill yesterday. I think Mr. Scalia
is right that the purposes here are to prevent interference, largely, to
prevent interference with agents abroad, and those purposes don't
really go very well to the person who isn't an agent. The bill might
very well also protect disclosures with reckless disregard for the safety
of covert agents, and that purpose goes pretty well to innocent people,
too.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Georgia is recognized.
Mr. FOWLER. Were you gentlemen all here this morning?
Mr. SCALIA. I was not.
Mr. HEYMANN. I was not.
Mr. ABRAMS. I was here at the end.
Mr. FOWLER. Let me seek your advice as students to professors, back
to what you described as the (heart of the problem, Mr. Abrams.
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Why could not the Congress of the United States enact a statute as
follows : whereas we deem it necessary to protect the national security
of our country by having a clandestine intelligence gathering opera-
tion called the CIA; whereas it is necessary for this CIA to operate
in total secrecy, and that it would be rendered ineffective to protect
the national security interests of our country by any revelation; there-
fore, it is unlawful to knowingly publish the name of such an agent of
our coqntry.
Can the Congress do that? Or why can't we?
I just don't understand your very wonderful phrase, Mr. Scalia,
which I will instantly steal without attribution wherever I go-
Mr. SCALIA. I didn't give the attribution either, so you are welcome.
Mr. FOWLER. Well, in the whole area is the self-operative ineffec-
tiveness rendered merely by the act of disclosure g There is no reason-
the only reason I know, the only reason I want to have a CIA is to
have early warning of enemy activities, of enemy motivations, and
they are not going to tell you. You have got to do it in secret. But if
you reveal, then, all of our attempts at national security by having a
CIA are vitiated.
So why can't we write a simple five line statute along the lines that
I described $
Mr. Abrams. For one thing I think it would be overbroad because
it would apply to a lot of situations, some of which have been referred
to by way of hypotheticals here by my colleagues, in which
Mr. FOWLER. Excuse me, I don't want to argue with you, because I
am really seeking the information, but what reason-I can't come up
with-I mean, I know we could all come up with a hypothetical, but I
just do not see how, if you said-we are going to get on a different sub-
ject, and I am not trying to chill any debate about the necessity for
covert activities, about whether or not there ought to be a CIA, but
what I want you to address is-is the first amendment going to be the
bar for the Congress to do that, to simply say you cannot publish the
name of a
Mr. ABRAMS. Yes, I think it would. If you were to do it, and indeed,
as H.R. 4 tries to do it in a more refined fashion which deals with
fewer situations and builds in some more protections, although I think
not enough, I think it is a lot closer to the mark.
But to take your question directly, I think that as soon as I could
give you a hypothetical example as to which you would say back to me,
well, you know, there really is some justification for printing the name
in that case, whether it is infiltration of the Boy Scouts which Mr.
Heymann cites, or infiltration of some branch of the church, or miscon-
duct at home by CIA agents, if we hit once with each other and I
persut.de you that there is almost any social good at all done by the
publication of the name in the course of an otherwise legitimate news
article, then I don't have any doubt that at least as to that case, and I
think many more, the Supreme Court would say that as applied at
least the statute wouldn't be constitutional. There are all kinds of
things we can't suppress, even though there would be some tolerably,
sometimes some really good social purpose in doing so.
Mr. FOWLER. But this statute would not suppress the fact, a story
could be written that substantial evidence from all sorts of undercover
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sources, the same phrase that a newspaper uses whenever they want to
leak from any of us, that the Boy Scouts have been infiltrated and as
Mr. Heymann said, the national debate then begins.
Mr. ABRAMs. But the first debate would be does the newspaper know
what it is talking about? The first thing that would really happen then
would be a denial from the Boy Scouts, and we would then be engaged
in a process by which the newspaper's own credibility would be imme-
diately at stake for having gone confidential source, as it were, when
it didn't have to, or when it wasn't obliged to by some promises it made.
I mean, I think we would have a lot of stories-maybe we could sur-
vive this. I don't want to overstate this. There would be a lot of stories
that couldn't be written if you couldn't give the fact of who it is about
in the story.
Mr. HEYMANN. Somebody would want to know, Mr. Fowler, they
would say how can you go around saying that the Boy Scouts are
infiltrated? Give me one example, and that first example would violate
your statute, I believe. The first name that was given of somebody high
up in the Boy Scouts who was working for the CIA, that would be a
crime, and the story-you can't tell a story and not give a single ex-
ample. At least I hate to see that happen in the United States.
The reason I said the question, incidentially, was a very close one
under this statute, I called it to the attention of the staff and they
told me they had also noticed that in the forward to the. Supreme Court
note for the-the forward written by Professor Cox for the Harvard
Law Review in November of this year, talking about a totally different
subject, he sums up a set of cases that you have had referred to you, and
this is his summary, and the staff told me what page it was on, so they
were aware of it, too : Taken together, these cases leave little doubt that
except in cases involving imminent national military catastrophe, the
Court will not permit previous restraints upon or subsequent punish-
ment for publication in a mass medium of accurate information that
the publisher has lawfully acquired.
That is his summary of the last 8 or 9 years of the Burger Court,
and it addresses-he was not addressing, none of the cases went to the
military intelligence side except for the Pentagon Papers case, but that
was his summary, and his summary was not very cautious. Taken to-
gether, they leave little doubt that except in the case of imminent na-
tional military catastrophe, the Court will not permit subsequent
punishment for publication in a mass medium of accurate information
that the publisher has lawfully acquired. That is the summary that I
have been trying to find a way to work around.
Mr. FOWLER. Can we hear from Mr. Scalia?
Mr. SCALIA. I must say I share Mr. Heymann's and Mr. Abrams'
doubt that such a provision would pass muster on the current Court.
It is not as outrageous a disposition as Mr. Abrams might suggest.
There are other free societies which have long traditions of a vigorous
press which indeed have such proscriptions. So it is really hard to say
categorically that this violates fundamental principles of liberty.
Nonetheless, given the case law, I think it would be a very risky prop-
osition to adopt a broad gage prohibition of that sort.
Mr. MAZZOLI. Thank you.
The gentleman from Massachusetts.
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Mr. Bor.AiD. I take it that the hypothetical case put by our distin-
guished friend from Georgia would be considered more constitution-
ally objectionable than either the House bill or the Senate bill as
presently drafted.
Is that the opinion of all three H
Mr. Hzm u. . Yes.
Mr. SCALIA. I think so. Yes, certainly.
Mr. BoLAND. Let me ask, Professor Kurland indicated that a mali-
cious intent or bad purpose need to be proved before a person can con-
stitutionally be convicted of disclosing nonclassified information
obtained from legally available sources.
What is your opinion on that, that malicious intent or bad purpose
need be proved before a person can constitutionally be convicted of dis-
closing nonclassified information obtained from lawfully available
sources i
Mr. SCALIA. I think that is too broad a proposition. If the character
of the information were defined narrowly enough, if the individual
against whom the law is directed were defined narrowly enough, I
think such a provision might well be sustained.
Mr. HEYMANN. If I may, Mr. Chairman, I think it is only too broad
in the respect that it didn't leave room for an imminent national dis-
aster, you know, some-I don't think it would help at all to narrow
the coverage to only a few people and narrow the coverage to only a
little information. I think what Professor Kurland said there would
be right absent the information being extremely dangerous, the secret
of the hydrogen bomb or the location of our missiles.
The reason I would fear in this particular case is I do not think
that the type of information we are dealing with will look anywhere
near at the ultimate extreme of importance when it is arrayed by a
defense attorney before a court, and I think they will say, look,
every other foreign-every foreign group of any size can produce
the same type of information.
Mr. BoLAND. Mr. Abrams ?
Mr. ABRAms. I agree with Mr. Heymann.
Mr. BOLAND. Can we get at any idea of what standard or test or re-
view a court would use to determine the constitutionality of either
the Senate or the House bill 8
Mr. ABRAms. Well, because first-amendment interests are concededly
implicated, they would not refer at all to the same extent as they
usually would to a congressional determination in the area. How-
ever, they would defer considerably to Congress' determination of
the facts, the facts of the harm that might come about, the facts as
set forth to you by representatives of the CIA and the like. They would
weigh for themselves the relationship of those facts, taking them as
givens, to the overhanging first-amendment principles which are,
I think we are agreed, very demanding indeed, and see how it stacks
up then, and that they would do the same thing, I think, necessarily,
with respect to both the Senate bill and the House bill.
Mr. BoLAND. Would the panel agree with that position 8
Mr. SCALIA. Yes; I think I would agree with it. It was at a sufficient
level of generality-as indeed one must respond to such a question.
I tried to set forth in my initial statement what I deemed the three
factors that a court would consider-the importance of the govern-
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mental interest involved, the importance of the type of speech involved,
and lastly, the extent to which the particular provision lays a trap for
the unwary or gets into particular
Mr. BOLAND. The bottom line is, as all of you know, that we are
going to get a bill this year. There is no question about it. We could
have if time were on our side last year, we would have had a bill, of
course, as you know. So there is going to be a bill.
Now, which bill would you take?
Mr. Scalia, as I understand it, you would almost take the Senate
bill, and I think probably Mr. Abrams might take it, too, because-
you would not?
Mr. ABRAMS. No, sir.
Mr. BOLAND. But you think there is-you don't want either one of
them.
Mr. ABRAMS. No; I don't either one, but if my hands were tied
behind my back and I had to vote for one, I would vote for yours.
Mr. BOLAND. Oh. Oh, I thought that perhaps you sort of were lean-
ing toward the Senate bill because you had to prove a pattern of
activities, and that would not be-it would be awfully difficult to
prove that with a reporter who is pursuing his legitimate reportorial
duties. That would be correct, wouldn't it?
Mr. ABRAMS. Yes, sir. I hope it would be difficult to prove an effort
to identify and expose, as well, of the same reporter. My reason for
preferring your bill, if I had to choose, is the double intent require-
ment in your bill as compared to what I view as the nonintent require-
ment of theirs.
Mr. BOLAND. All right, let me ask the other two members of the
panel.
What would you take, and possibly for the record you could indicate
which one you would take with particular amendments which might
be acceptable.
As I say, I think we all have to acknowledge we are going to get the
bill, it is going to fly by, and at least that would be the-if you look at
this Congress and what it wants to do, I don't think there is any
question about it.
Mr. FOWLER. Will the chairman yield?
If we are asking for their opinion on the lesser evils, can we also put
in the so-called Kennedy language?
Are you familiar with that?
Mr. HEYMANN. The second Kennedy language.
Mr. BOLAND. Right, the Kennedy language that was
Mr. FOWLER. We are asking for the lesser of the evils, the Kennedy
language, the Senate Judiciary language, and the House bill now.
Which one, the chairman's question, which is the lesser of the evils?
Mr. HEYMANN. Could you make clear, Mr. Chairman, what is refer-
red to as the Kennedy language is the language that includes danger
to agents and also includes-also says that there must be a purpose
to
Mr. FOWLER. It says this. That's what it is. It says in order to impair
or impede the effectiveness of covert agents or the activities in which
they are engaged by the fact of such uncovering and exposure, or sec-
ond, with reckless disregard for the safety of covert agents.
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Mr. HEYMANN. I much favor the Kennedy language. I think it is
very close to what I was recommending today, and I much favor that.
Mr. ABRAMS. And I also favor that. I didn't realize that that was
part of my choice.
[General laughter.]
Mr. FOWLER. The chairman was good enough, since he zapped, staked
the heart of my proposal by getting three constitutional scholars to say
how awful it was.
Mr. McCLORY. Would the gentleman yield ?
Mr. BOLAND. Well, I won't tell anyone else outside of this commit-
tee room.
Mr. McCLORY. Has that language not already been rejected by the
Senate and been left out of this year's Senate bill ?
Mr. HEYMANN. I think it emerged after the Senate Judiciary Com-
mittee hearings.
Mr. FOWLER. It is the gentleman's time, but on those three, which do
you prefer?
Mr. SCALIA. With respect to purely constitutionality, I would prob-
ably rank them the House bill, the Kennedy language you just read,
and then the Senate bill. But I am not sure that that answers the really
basic question. The question, as you limited it, was which would you
prefer from a constitutional standpoint. That's an easy question, rela-
tively easy. As hard as it is, it is relatively easy compared with the
absolute question-naanely, which do you prefer, weighing in the bal-
ance not dust the risks of constitutionality, but the varying effective-
ness of the different provisions. That is the j udgment that the Congress
has to make.
Mr. MAzzoLi. I am sorry, the gentleman's time has expired.
Let me-and I recognize myself for 5 minutes. I believe my notes are
a little bit jumbled here because I am listening to these scholars and I
am not sure I am writing as fast as the brains are moving but-
Mr. MAzzor I. I think, Mr. Heyman, and I hope I am not putting
words into your mouth, but something to the effect that intent doesn't
help, it is the purpose which helps much more? That I believe is in
the standard of proof and the subjective, objective?
Mr. HEYMANN. Mr. Mazzoli, I was not clear enough there. I used
the terms "intent" and "purpose" identically. I regard each to mean
the same thing. But the question is what do you have to intend? I don't
like the words that come after "intend" in the House bill, to impair
or impede the activities because I don't even know whether Mr. Scalia
and I agree that that only applies to actions taken in the field by some-
body to interfere rather directly and immediately with CIA activities.
I mean, I can never tell whether it includes efforts to convince the
Congress publicly to turn something aside. So I think there has to be
an intent or purpose-I use those terms interchangeably
Mr. MAZZOLL In other words, you would change the
Mr. HEYMANN. But what you have to intend I think ought to be an
immediate response in the field. That is what the second Kennedy
language does, and that is what my language about encouraging for-
eigners does.
Mr. MAZZOLI. Well, I think what we ought to have is harm or injury
or the potentiality of it or the likelihood of it, and then let me then ask
this question.
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If we accept the fact that the impair and impede part is hard to
understand, it may not be linked as closely to constitutional standards
as we would like, would the panel be able to help me on the net effect of
just the damage which can be reasonably expected to ensue from the
revelation of these names which have been classified, and whether or
not that, simply stated, those revelations, those disclosures would be
the kind of injury or have reason to believe that the injury would en-
sue, or would it take more than simply the publication of those names.
Mr. Abrams first.
Mr. ABRAMS. I think it would take more than the publication of the
names. I don't mean to suggest that any of the views I am expressing
mean any more than what Mr. Heymann says, is that it is a 50-50
chance or that it is a close call, but to have a statute which simply
requires disclosure of the names and which assumes, as it were, from
the disclosure, that everything else will follow, without going through
some intent requirement, at least, doesn't seem to me to pass muster.
Mr. MAZZOLI. Mr. Heymann?
Mr. HEYMANN. Well, if I understand you right, Mr. Mazzoli, you
are saying would it help if we listed the harms that result from these
disclosures and said anyone who comes pretty close to causing these
harms is going to be guilty of the act?
Mr. MAzzoIJ. Well, basically, does commission of the act which is
revealing the names inexorably lead to this kind of harm, the harm we
.ay should be shown here if we are going to get away from the intent
and the too subjective analysis of what the person intended, to the
more objective standard which I guess is the Senate's approach, this
is to say there is reason to believe that you make this revelation and
this is what is going to happen, and you link the two that way.
You think there would still have to be more than just using the
names and putting them publicly into the hoppers, the names which
have been classified as not in itself necessarily harmful to those people
whose names have been revealed?
Mr. HEYMANN. I think there would have to be more than just for-
bidding the release of the names, although I think it is quite likely that
the harms which the committee rather modestly describes would take
place.
Mr. MAZZOLI. Mr. Scalia?
Mr. SCALIA. I read your bill to mean, and my assertion that it seems
to me constitutional is based on the assumption that it means, the im-
pairment or impediment of the foreign intelligence activities of the
United States can consist of the mere neutralization of the agent in
question by the publication of his name, rendering him ineffective.
That is how I read your bill. If it doesn't mean that, there
Mr. MAZZOLI. That is what we intended to mean, and I guess what
we are trying to find out today, and it is very difficult to nail it all
down, is whether or not that kind of a feeling on our part, targeting
just for that sort of disclosure, not in the course of some newspaper
expose of overreacliinm on the part of the CIA, but that particular
effort to identify agents in the field
Mr. SCALIA. For the purpose of neutralizing them.
Mr. MAZZOLI. For the purpose of neutralizing them and the national
effort toward having an intelligence apparatus, would give rise to that
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degree of harm and danger which everybody seems to think would be
then constitutional.
Well, my time has again expired.
The gentleman from Illinois?
Mr. MCCLORY. Well, thank you very much, Mr. Chairman.
I would ask whether or not you would be willing to have us adopt
language which included both the Senate version and the House ver-
sion-in other words, reason to believe that these things would occur,
or with the dual intent language of the House bill.? What if we put
it in the alternative? Wouldn't that simplify the prosecution's job
and yet fulfill our purpose in this legislation?
Mr. ABRAMS. If I may, I think it might simplify the job of the
counsel who would be arguing that the statute was unconstitutional,
because as you simplify the prosecution's job-and you would be do-
ing that-I think
Mr. MCCLORY. Which version would be the
Mr. ABRAMS. I think the combination-I'm sorry, sir.
Mr. MCCLORY. The combination.
Mr. ABRAMS. The combination I think is even more subject to
constitutional challenge than, say, your version. You lose one of the
real things that your version affords to a defendant, and therefore to
a defender of the legislation come the day when it is in court by mov-
ing away from the intent standard which you require toward an
intent or something else.
Mr. MCCLORY. The intent standard is more apt to be held con-
stitutional?
Mr. ABRAMS. Yes, sir.
Now, I have already offered by view that I don't think it is enough,
but the intent standard is more likely to be held constitutional than
one which allows the prosecution to prove less, yes, sir.
Mr. MCCLORY. Mr. Heymann, do you feel that there would be a
greater risk of having a graymail problem arise if the Senate "rea-
son to believe" standard were adopted?
Mr. HEYMANN. I believe there would be, Mr. McClory. I have only
spent about 5 or 10 minutes thinking about it, but I think I came up-
it was called to my attention that you had raised it, and I think that
is right. I think with the reason to believe standard there would be
an open issue at trial as to whether this did in fact impair and impede
the intelligence activities, and defense could say that they wanted to
reveal what the intelligence activities were doing in the area in order
to show that they weren't impaired or impeded.
With an intend to standard, if the prosecution was prepared to just
use evidence from the mouths of the publishers, the publishers of
Covert Action, something like that, then there would never really
be an issue as to whether it actually harmed intelligence activities in
the field. It would simply be an issue whether they wanted it to harm
intelligence activities in the field.
Mr. MCCLORY. Mr. Scalia, could you comment on adopting both
versions ?
Mr. SC.ALIA. Right. I think the combination-I agree with Mr.
Abrams-would render the bill constitutionally more suspect than
your version alone. The combination would not render it any weaker
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than the Senate version alone. In other words, as far as constitution-
ality is concerned, I don't think the Senate has anything to lose by
adding your language. I think you do by adding the Senate's language.
Mr. MCCLORY. Mr. Heymann, with your references to purpose, do you
have in mind some specific language that you would want to recom-
mend to the committee to add as a requirement, and if you have, I
would like to know what specific language you have in mind.
Mr. HEYMANN. My specific language, Mr. McClory, is very close
to what the chairman or Mr. Fowler referred to as the Kennedy
language that emerged in a last minute attempt to work out a com-
promise between the Judiciary and Intelligence Committees in the
Senate. My form of it would require that the disclosure take place with
an intent to encourage or assist foreign nationals or foreign powers,
governments, agencies, groups, to impair or impede the effectiveness
of covert agents or their activities.
What I am never clear about is I think that is all the further that
anybody wants to go, but I can never tell whether that is all the fur-
ther. If you read the legislative history, that is all the further any-
one wants to go, but I can't tell if that is all the further Mr. Scalia
wants to go. I can't tell whether-if that is all the further anyone
wants to go, it is all the further I would go, then say it, then say it,
because if you want a bill that is not going to be easily attacked on
constitutional grounds, say that what you are going after isn't dis-
closure but assistance to foreign nationals, purposeful assistance to for-
eign nationals in activities, not speech, in their activities designed to
impair the CIA's agents or activities abroad.
Mr. MCCLORY. Well, we want to encourage people to be willing to
serve under cover and not discourage people from undertaking it.
Mr. HEYMANN. But if all of the harms you are worried about are
captured by those foreign nationals and foreign governments respond-
ing to disclosure by in the field taking action against CIA agents, if
that captures all the harms, then I urge you to say it my way.
Mr. SCALIA. I am astounded to hear Mr. Fowler say that that is all
he is worried about. I thought he was worried about the mere auto-
matic effect of the disclosure. It doesn't require any action by a foreign
government once the name of a CIA agent is disclosed to render him
utterly ineffective.
Do you include that?
Mr. HEYMANN. If you mean automatiallv they will cease dealing
with him or something like that, yes; I would include that.
Mr. SCALIA. Even friendly governments might.
Mr. HEYMANN. Yes, I would include that.
Mr. ABRAMS. Before my colleagues work everything out for you,
may I just say that I think Mr. Heymann's suggestion is really a very
solid and serious and creative one which I have heard today certainly
for the first time, and I would really recommend the most serious con-
sideration by the committee to it.
Mr. MAZZOLI. The gentleman's time has expired.
The gentleman from Georgia.
Mr. FOWLER. Mr. Heymann, how do you prove, don't you have a
real problem on how you prove that this action assisted a foreign
national or encouraged a foreign national?
Mr. HEYMANN. I would want proof only, Mr. Fowler, that its pur-
pose was to assist or encourage foreign nationals to take action or in-
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127
action to render our intelligence activities less effective abroad. The
purpose could often be proved-and I acknowledge it is difficult-by
the simple statements of the people who are associated with the publi-
cation. If they have for years been saying, as Agee and Wolf I believe
have-I haven't read it myself-that that is their purpose, that would
be a big step up in the next trial. It would be proved by the listing of
names and addresses and license numbers of cam. You just don't do
that for any other purpose besides to encourage the people out there
who are in the same place where the agent is to take some action against
the agent.
It could be proved, I think, simply by sufficiently frail justification
for listing 200 or 2,000 names in a publication. Why else are you listing
names, unlesj you are the phone company? Not for any other purpose.
Those are devices that would be used to try and prove purpose at trial.
Mr. FowLER. What they would say is they want to encourage people
to go talk to the CIA about American foreign policy and what they art-,
doing there. They didn't have any malicious intent.
Mr. ScALiA. The current bill wouldn't cover that anyway, I take it.
You would have to eliminate the provision that says the mere publica-
tion will not suffice as proof of the intent.
Mr. HEYMANN. I would take it that the mere publication does not
mean the mere publication of names, of a long list of names. It means
the mere publication of a name. If you published a phone book of
names, I think maybe that would be permissible under the mere
publication.
Mr. FowLER. Let me go back one last time-and I know we are get-
ting to the end-in trying to see through all of this. I still think there is
some room to look at the uniqueness, in the law, to look at the unique-
ness of a clandestine, secret organization. I mean, my philosophy, if I
have to reveal it, is that in a free country people have an absolute right
to know everything about their Government, but the caveat of that has
to be, the exception to prove that rule is that you won't have a free
Government if you don't protect some secrets, military and national
security, and that is the Catch-22 there. So you have to have that.
And when you have got an organization that exists to further the
principles, to preserve the principles of the free society, including the
Bill of Rights and the first amendment, and the only way that that
organization can be effective in furthering that national interest is to
operate in secret, I still don't see why it would be a close question that
the court would say you just can't publish those names, because there is
no interest involved in publishing them when you can create from a
hundred different ways and write a thousand different ways a discus-
sion of whether or not Americans ought to be doing anything in coun-
try X, covertly, overtly, whether the covert foreign policy is at odds
with the overt foreign policy.
And I keep coming around, I can't, as much as I think your tests are
excellent, the thought just seems to me that the quagmire is with words
like "intent" and "purpose" and all those that we are dealing within
the body of the law that we deal with in an open society. When you are
in an area of a necessary evil for a free society called a clandestine
service, you run some risk that unless you have total secrecy, as much
secrecy as possible, you don't have anything in the first place.
Now, I don't know how you get there.
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Mr. SCALIA. Congressman, I agree with that, which is why I hope
you will not take Mr. Abrams' advice that it is not the job of the Con-
gress to consider whether the publishing of names is important, that
that is an editorial judgment. It seems to me Congress has to consider
whether the publishing of names is important because Congress has to
make its own judgment about the constitutionality of any legislation
is passes-and in order to evaluate the constitutionality, you have to
weigh the importance of the governmental interest protected on the one
hand, which is what you have been talking about, and, on the other
hand, the importance of the speech activity that is affected. So Con-
gress has to ask itself is the publication of a name an important free
speech activity? I see no way of avoiding making that judgment.
Mr. FOWLER. Well, if you decide that it is, that there is a more com-
pelling, no matter what your argument, that it is a more compelling
national interest to protect the name, again I just thought this up off
the top of my head in the middle of the session this morning, it just
seems to me that a cleaner, more direct test of that, since the secrecy
and CIA are inseparable, is just to do it directly and say because it is
a clandestine operation, it is obvious that it cannot operate without the
veil of secrecy, and therefore it is impermissible for anybody-maybe
one caveat, except for extraordinary, compelling national purposes-
for anybody to nublish the name of an agent.
Mr. SCALIA. We are only quibbling over how many caveats, that's
all.
Mr. FOWLER. Well, that's only one in there and that ought to be
obvious because the Court would always set it aside if there was a
compelling, you know-is there any response to that? And then I am
through.
Mr. ABRAMS. Well, just a brief one.
I really want to make clear, if I may, Mr. Fowler. that it is not my
view that the first amendment to any degree compels the disclosure of
information of this sort about the CIA. I don't think the first amend-
ment is a kind of Freedom of Information Act which of its own force
opens up the CIA to public inspection. Our question, your question is
once that information finds its way into someone's hands. does the
first amendment restrain the Congress from prohibiting its
publication?
Mr. FOWLER. Right.
Mr. ABRAMS. And that is where I think, you know, we have our dif-
ferences of opinion.
Mr. ITEYMANN. My view, Mr. Fowler-and I do think it is a fact-
ual question-is that an awful lot of the public debate will be impossi-
ble without names, and I just think we are thinking about different
categories of people. I am thinking of did the CIA have anything
to do with Diem's ouster and death? Well, if that is subject for de-
bate, it is going to reveal CIA contacts with whoever it was that was
closely associated with Diem and overthrew him and killed him.
Did the CIA-was whoever, I forget the name of the Mafia guy who
was hired to get Castro, was he a CIA agent? That is legitimate sub-
ject for public debate. You simply can't handle it without the possi-
bility of revealing that whatever his name was, I forget who it is now.
Was the Phoenix program, or were all the leaders of the Phoenix
program-I am talking about debatable things-were all the leaders
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of the Phoenix program in Vietnam CIA, or how many of them were,
or who was in charge of it?
Those will all come up with names, and I think the importance of
debate about secret activities abroad is very great.
Mr. SCALIA. I wanted to get in a point which I may not have another
opportunity to do, while you are considering alternatives. Earlier, Con-
gressman McClory suggested extension of the legislation to attempt.
It seems to me you ought to be aware that that does create additional
first amendment problems in that extending it to the attempt stage may
be regarded as, in effect, a prior restraint of speech, which would bring
in an even greater level of scrutiny by the Court. There is that risk
involved in extending it to attempt.
Mr. MAZZOLI. The gentleman's time has expired.
The Chairman, the gentleman from Massachusetts?
Mr. BOLAND. A while back I think Mr. Abrams indicated that if we
broadened that, there would be a possibility of passing a constitutional
statute here, if we broadened the standards, although he conceded that
perhaps those standards would be much more difficult to prove, and
that is the standard of an intent to injure the United States or cause
harm to the United States, but I think you also indicated probably
another way to meet the objection would be that there is an intention
on the part of the speaker to cause illegal conduct. But they would be
difficult to prove, would they not, those standards ?
Mr. ABRAMS. Yes, they would be difficult to prove.
Mr. SCALIA. The former would be impossible. He could always
assert that he had the best interests of his society at heart.
Mr. ABRAMS. Well, it sometimes is proved. We do have cases which
come up in which incitement is alleged and proved, but it is difficult.
Mr. BOLAND. Well, as all of you know, the effort on the part of this
committee and I am sure the Senate Select Committee on Intelligence
is to get at those publications which publish names for the express
purpose of impairing and impeding and destroying the foreign intelli-
gence of the United States.
How do you do it, Floyd, without this kind of inhibition?
Mr. ABRAMS. First, you may not be able to. It just may be that you
can't do it. But if you are going to make a try at it and if you are going
to run the constitutional risks of doing it, you have got to have a statute
which is as pruned down and lean as is possible. You have got to have a
statute which, on the one hand, affords all kinds of legal protections
to the potentially accused parties, and on the other hand includes no
one else other than people who are doing things that you really want
to stop the publication of, and prohibits publication of nothing more
than that which you are really worried about. You have got to have
the narrowest definition of covert agent, you have got to have the nar-
rowest definition of what it is that you don't want them to say, and you
have got to weigh it down with a lot of protections for the accused.
Now, maybe it won't work if you do all that, and I am not trying to
suggest that it will. I don't know. But I think that is the only way you
will have a chance.
Mr. HEYMANN. My answer-and I kept trying to write a wonder-
fully pure example of it, Mr. Boland, and I couldn't-my answer is
don't talk-if you could do it. You can't quite do it-don't talk about
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speech at all, or disclosure. Say helping foreigners beat up on, shoot
bullets into, cease dealing with, reveal, harass, mistreat CIA agents
abroad
Mr. Fowr.Ex. Garrote.
Mr. HEYMAN. Garrote-is a crime. Now, that is a beautiful statute.
You try and see Mr. Abrams attack that on first amendment grounds.
It doesn't use the word "disclose," it doesn't use the word "speech."
The trouble with it is that every statute really ought to have some defi-
nition of activity. It shouldn't just say-you are going to have to say
through some kind of action, and so you might as well say through
disclosure, but the heart of it, the heart of it is make it clear that the
statute you are dealing with is one that addresses itself to the American
relationship to foreigners doing things to CIA agents that they
shouldn't be doing, or Americans helping foreigners doing things to
CIA agents that they shouldn't be doing.
Now, when I say that I keep using the word "doing," "doing,"
"doing." That is not talk, speech, first amendment. Make it a crime
to help foreigners interfere with, garrote, do everything that you can
imagine to CIA agents, and I would in fact keep in "by disclosure."
If you can think of anything else you want, put that in, too. It would
be better if the statute didn't say simply by disclosing identities. It
would be better if the statute said by disclosing identities or by help-
ing to drive the foreigner to the house of the CIA agent while he
carries his machine gun, or by 20 other things. If it had 20 other things,
I promise you you are safe. One of them should be by disclosure.
Mr. SCALIA. Congressman, I think the current bill does it well enough
to pass constitutional muster-the House version. And I read the lan-
guage "impair or impede" to mean all of those good things and a lot
of other ones.
Mr. HEYMANN. It's the lot of other ones that worries me.
Mr. MAZZOra. Mr. Chairman, the time has expired, and gentlemen,
this has been a very, very interesting day. We have appreciated your
attendance, and the discussion here has been extremely fruitful. Our
staff I am sure will be getting in touch with you to flesh out this infor-
mation that we have today because our committee will be meeting soon
to try to write some kind of a bill and produce some sort of a vehicle
which succeeds in accomplishing these goals which I think all of us
have pretty clearly in mind, and they are fairly modest in one sense
of the word. But obviously even modest goals are very difficult to reach.
But we want to thank you, Mr. Scalia, Mr. Heymann and Mr.
Abrams. You have been very helpful.
We thank you, and our committee stands adjourned.
Mr. BOLAND. May I just add my appreciation to that of the chairman
of the subcommittee for your presence here. This is a matter, of course,
that is being dealt seriously with by the entire committee, and I want
to express the appreciation of the entire committee for your presence
here today. It has not been easy for you. We understand how it impacts
upon your own professional lives, your private lives, and thank you
very much for coming.
Mr. MAZZoLI. Thank you.
[Whereupon, at 2 :53 o'clock p.m., the subcommittee recessed subject
to the call of the Chair.]
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STATEMENT OF HON. CHARLES E. BENNETT
Mr. Chairman : I appreciate the opportunity to appear and submit for the
record, testimony on the need for legislation to provide criminal penalties for
the unauthorized disclosure of information identifying individuals engaged in
foreign intelligence activities. I originally introduced this legislation in the 96th
Congress and testified before this distinguished Committee, because I feel so
strongly that the Congress must legislate a remedy and end this very destructive
activity.
These types of disclosures have no redeeming social value and have been made
mainly by individuals who are openly undermining our Nation's vital intel-
ligence efforts. Leading the list is Phillip Agee, a former CIA employee who has
published the names of some 1,200 alleged CIA personnel and whose most recent
book. "Dirty Work," purports to identify over 700 past and current CIA
employees in Europe alone. That these disclosures have been made with relative
impunity and commercial success is a travesty and serves no purpose but to
encourage others in the continuation and expansion of such destructive activity.
Such disclosures not only place in jeopardy the lives and safety of this Govern-
ment's intelligence officers and their families, as well as the lives and safety
of those who cooperate with the United States in fulfilling its intelligence mis-
sion, but also have an adverse effect on the foreign intelligence and counter-
intelligence efforts of the United States. The fact that ? the United States to
date has not been able to fashion a legal remedy to put a stop to such disclosures
has severely damaged this Nation's credibility in its relationship with essential
foreign sources of intelligence. The problem can be simply stated as follows :
Current law is insufficient to cover the type of conduct that must be protected
against ; Congress has been unable to legislate a remedy ; the disclosures continue
to be made; the net result is a damaged intelligence capability and reduced
national security.
A remedy is needed now. It is urgent that the 97th Congress clearly and
compellingly demonstrate that the unauthorized revelation of the identities of
our intelligence officers and those allied in our efforts will no longer be tolerated.
The bill I have introduced provides the needed remedy. Subsection (a) of H.R.
133 would make it a criminal offense for any present or former officer or employee
of the United States or member of the military to knowingly disclose, to anyone
riot authorized to receive it, information which identifies anyone not publicly
associated with the U.S. Government's foreign intelligence or counter-intelligence
efforts and whose association therewith is classified. Subsection (b) would
criminalize the same activity as described above for subsection (a) but is focused
on those who even though not present or former U.S. Government officers or
employees or military personnel-have or have had a position vis-a-vis the
U.S. Government which granted them access to identifying information.
The U.S. Government contractor or his employee are an example of the sub-
section (b) potential defendant. Subsection (c), in turn, would make it a crimi-
nal offense for anyone, not described in subsection (a) or (b), to knowingly
disclose, to any not authorized to receive it, information which identifies
anyone not publicly associated with the U.S. Government's foreign intelligence
or counter-intelligence efforts and whose association therewith is classified,
where, as a result of the disclosure, the identified individual's safety or well-
being is prejudiced or where such disclosures damage the foreign intelligence or
counter-intelligence activities where this prejudices the individual's safety or
adversely affects the foreign affairs functions of the United States. The individ?
ual identified as being associated with the U.S. intelligence efforts, whether cor-
rectly or incorrectly, may be nonetheless prejudiced and his or her future effec-
(131)
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tiveness called into question as may be the role he or she plays in the foreign
affairs functions of the U.S. Government.
In addition, my bill provides injunctive relief and makes provision for an in-
camera proceeding so that the court in camera may determine whether the in-
formation about to be disclosed is that for which a criminal penalty may be
imposed. The bill does not purport to criminalize disclosures made pursuant to
a Federal court order or to either of the Intelligence Oversight Committees or
disclosures otherwise authorized by Executive Order or by directive of the head
of any U.S. department or agency engaged in foreign intelligence or counter-
intelligence activities. On the other hand, the bill would allow prosecutions of
accomplices or conspirators, including, if guilty, members of the news media in
those cases of prosecution under subsection (c). The courts have consistently
recognized that the First Amendment freedom of speech does not prevent legis-
lation such as I propose. Our distinguished forefathers who drafted the First
Amendment clearly never intended it to be a shield behind which those who
would wish to undermine the intelligence efforts of the United States might stand
with impunity.
Mr. Chairman, I urge my colleagues to take swift and sure action in the 97th
Congress to pass legislation to accomplish the purposes I have outlined. I am
optimistic that the 97th Congress will be remembered as one that dared to speak
out against those who currently are working to destroy our intelligence agen-
cies. Thank you.
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ASSOCIATION OF AMERICAN PUBLISHERS, INC.,
Washington, D.C., April 29, 1981.
Hon. EDWARD P. BOLAND,
Chairman, Select Committee on Intelligence,
U.S. House of Representatives,
Washington, D.C.
DEAa Ma. CHAIRMAN : I enclose herewith a statement of the views of the Asso-
ciation of American Publishers regarding the proposed "Intelligence Identities
Protection Act," (H.R. 4), and respectfully request that this statement be made
part of the record. We understand that the record was to remain open until
April 30, 1981.
STATEMENT or THE AssocIATroN Or AMERICAN PUBLISHERS
The Association of American Publishers ("AAP"), the major trade association
of book publishers in the United States, submits this statement for inclusion in
the record of the hearings on H.R. 4, the Intelligence Identities Protection Act.
AAP's more than 300 members represent a substantial segment of the American
book publishing community and are responsible for the publication of numerous
prominent books concerning government, public policy and international affairs-
including many which address national security and foreign intelligence matters.
Accordingly, we are acutely aware of the complexity of the issues which face
your Subcommittee and we fully sympathize with the objectives of the Act. How-
ever, the AAP also has a special responsibility to make certain that this objective
is achieved in a manner consistent with First Amendment principles. It is from
this perspective that we express serious concerns over the constitutionality of one
section of the legislation-601(c)-and recommend means of bringing the legisla-
tion more closely into accord with the dictates of the First Amendment.
AAP shares the reservations which have been expressed by others concerned
with press freedoms over the potential reach of the proposed legislation beyond
its avowedly narrow purposes to encompass activities protected by the First
Amendment.' Of particular concern to AAP Is Section 501(c), which would punish
the disclosure of information identifying covert agents by persons not duty-
bound, through government employment obligations or otherwise, to refrain from
making such disclosures. Apart from the matter of the propriety of criminal pun-
ishment of such disclosures, not by "leakers" having authorized access to such
information (covered by Sections 501(a) and (b), but by the press and others
coming into possession of such information, there are also serious constitutional
questions raised by 501(c)'s potential punishment for disclosures of information
already in the public domain, and for disclosures carrying "the intent to impair
or impede the foreign intelligence activities of the United States."
Because others have addressed these constitutional considerations in great de-
tail, we will merely note below certain respects in which 501(c), as presently
drafted, could have a particularly adverse effect on the activities of book pub-
lishers.
Section 501(c) would penalize disclosure of information identifying covert
agents which take place "in the course of an effort to identify and expose covert
agents. ." Such language would seem to offer little assurance to the publisher
of any of a number of types of books discussing governmental affairs, for exam-
ple : Investigative works which legitimately seek to expose a pattern of illegal or
' Such views have been recently expressed in testimony before the subcommittee by, among
others, the Society of Professional Journalists-Sigma Delta Chi and Floyd Abrams.
(133)
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unconstitutional behavior on the part of intelligence agents or agencies overseas,
or, in the case of the FBI, within the United States ; works concerning foreign
policy and national security which seek to influence legislative or Presidential
policy ; analytical or historical studies of intelligence agency objectives, policies
and programs ; or narrative accounts by former agents themselves who seek to
describe events through which they have lived and which provide insight into
government operations and activities. In such cases, the prospect that the publi-
cation might be construed as a part of an "effort to identify and expose covert
agents" could well have a chilling impact on the communication of important
information about the operations of government.
Section 501(c)'s intent standard-"the intent to impair or impede the foreign
intelligence activities of the United States"-poses similar uncertainties and
risks for book publishers. Moreover, given the relatively time-consuming nature
of book publishing, one could envision the imputation of an intent to "impede or
impair" foreign intelligence activities on the part of a book publisher arising out
of its supposed ability to have considered the implications of a given publication.
Finally, 501(c) could have some of its most anomalous effects on book pub-
lishers. Because there is often a considerable time lag between a noteworthy
event and actual publication of information about the event in book form, book
publishers could easily find themselves contemplating publication of information
which is a matter of public record, has lost its sensitivity over time, and no longer
presents a threat to anyone, but which, if published, could still lead to criminal
penalties.
In light of the foregoing concerns, AAP urges the Subcommittee to carefully
consider the propriety of extending criminal liability in this area to independent
third parties, including publishers and their authors. To the extent that the Sub-
committee decides to retain some form of 501(c) , we offer the following recom-
mendations to minimize the chilling impact of such a provision :
(1) Criminal liability should not be extended to the disclosure or publication
of information derived entirely from unclassified sources.
(2) The language "in the course of an effort to identify and expose covert
agents" should be further refined to limit its coverage to persons who are sys-
tematically engaged in the naming of covert agents.
(3) The intent standard should be brought more closely into line with prior
statutes which have withstood constitutional scrutiny, specifically, those embody-
ing an intent standard requiring proof of an intent to injure the United States
or give advantage to a foreign power.
(4) The definition of "intelligence agencies" is overbroad and vague, and
should be limited to the CIA, the foreign intelligence components of the Defense
Department operating outside the United States and the foreign counter-
intelligence or counterterrorist components of the FBI operating outside the
United States.
We thank the Subcommittee for its consideration of AAP's views on this im-
portant piece of legislation.
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WOMEN IN COMMUNICATIONS, INC.,
Austin, Tex., April 28,1981.
Chairman, Permanent Select Committee on Intelligence, U.S. House of Repre-
senatives, Washington, D.C.
DEAR CHAIRMAN BOLAND : Enclosed is a statement from President Kathleen
Larey Lewton on behalf of Women in Communications, Inc., regarding the In-
telligence Identities Protection Act, H.R. 4.
Thank you for inviting our organization to include its view in the record of the
hearings.
Sincerely,
MARY E. UTTINO,
Executive Director.
STATEMENT BY KATHLEEN LAREY LEWTON
I greatly appreciate this opportunity to present a statement to the Permanent
Select Committee on Intelligence, Subcommittee on Legislation, on behalf of
Women in Communications, Inc. WICI is a national association of more than
9,000 communicators in print and broadcast journalism, communications edu-
cation, public relations, advertising, publishing and photojournalism.
I am Kathleen Larey Lewton of Toledo, Ohio, president of Women in
Communications, Inc.
Our organization is opposed to the Intelligence Identities Protection Act,
H.A. 4. We believe the measure does more to harm freedom of speech and free-
dom of the press than it does to protect the U.S. national security or intelligence
activities abroad.
Yes, WICI deplores the practice of exposing the identities of undercover
agents so their lives are placed in danger-perhaps unnecessarily. But H.R. 4
does not offer these agents the protection the sponsors of the bill believe it does.
Because the names of agents are available in public sources, any group-
including terrorists or foreign intelligence agencies--can get the information
easily. Those people are far outside this country's law. They are not easily
caught and punished.
If H.R. 4 becomes law, only our own country's investigative reporters, writers
and scholars, doing legitimate work using nonclassified data to inform the
public, will be published.
Women in Communications, Inc., respectfully urges the members of the Select
Committee to carefully weigh the irreparable damage H.A. 4 will do to activity
protected by the First Amendment against the hoped-for effectiveness of the
bill in preventing the "naming of names" of U.S. secret agents.
WICI firmly believes H.R. 4 will protect no one and that it will weaken the
First Amendment as no other law has done.
Thank you very much for the opportunity to present the view of Women in
Communications, Inc.
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Hon. EDWARD P. BOLAND,
Chairman, Committee on Intelligence,
House of Representatives,
Washington, D.C.
THE UNIVERSITY OF GEORGIA,
SCHOOL OF LAW,
Athens, Ga., May 4, 1981.
DEAR MR. CHAIRMAN : I am writing in connection with H.R. 4, the proposed
Intelligence Identities Protection Act, to suggest an amendment to except the
Peace Corps from a statutory requirement that United States Government agen-
cies provide assistance to maintain the secrecy of the identity of officers or em-
ployees of intelligence agencies. As Secretary of State when the twenty year
old policy of absolute separation between the Peace Corps and United States
intelligence was adopted, I would like to explain its genesis, and, in my opinion,
continuing vitality.
The Peace Corps, as conceived and maintained, expresses the idealism and
humanity of the United States in its relations to other countries, particularly
those of the Third World. More than 80,000 Americans, mainly young, have now
served overseas, often under conditions of hardship, to help meet the need of
Third World countries for skilled manpower.
To permit the Peace Corps to be used as cover for United States intelligence
would be inconsistent with this conception of the Peace Corps. If people in
foreign countries thought it was being so used, whether their belief was true
or falls, foreign countries would not accept Peace Corps volunteers, and, equally
important, many highly motivated Americans would not volunteer for Peace
Corps service.
Those who reject the separation policy proceed, I suppose, from the premise
that if the United States is to carry out intelligence activities as it must, those
activities require cover. If the United States excepts the Peace Corps from any
obligation to provide cover, then where does one draw the line.
First, the United States has repeatedly stated and assured foreign govern-
ments that the Peace Corps was not and would not be so used. So far as I know,
this distinguishes it from any other United States government agency.
Second, any effort to use the Peace Corps as cover would likely be vigorously
opposed by Peace Corps volunteers and staff and would, therefore, not be feasible.
The argument has also been made that formal legislation should not legally
circumscribe the President's discretion. The problem is that on its face pro-
posed Section 503 of the National Security Act of 1947 could be interpreted as
changing the historic policy of absolute separation between the Peace Corps and
United States intelligence, because proposed Section 503 does not except the
Peace Corps. Moreover, in my opinion any action that suggests that the United
States has modified the policy of absolute separation between the Peace Corps
and intelligence would also increase the danger to Peace Corps volunteers and
staff. During the last twenty years there have been countless examples of volun-
teers continuing to perform their duties despite civil strife. Indeed, they have
many times been protected by the ordinary citizens with whom they live and
work from any harm. Instability and terrorism have already substantially in-
creased the dangers to Americans abroad. These are dangers Peace Corps volun-
teers necessarily assume. The United States should do nothing to increase these
risks.
Thus, I hope your Committee will adopt an amendment to the proposed Section
503 of the National Security Act of 1947 to confirm the separation between the
Peace Corps and intelligence.
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In closing, I would point out that when the Peace Corps was born it was very
clear that it would not only refrain from any activities of an intelligence nature
but that it would be separate from any role as an instrument of American foreign
policy and would not become an instrument for use by our embassies abroad or
by the Department of State. It was felt that it was vital that it be recognized
as an organization solely concerned with the purposes for which the Congress
established it and would have no other role whatever. The substance of the
recommendation for an amendment to Section 503 has been discussed with
former Secretaries Cyrus Vance and Edmund Muskie who endorse it fully.
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97TH CONGRESS
1ST SESSION
H.R.4
To amend the National Security Act of 1947 to prohibit the unauthorized
disclosure of information identifying certain United States intelligence offi-
cers, agents, informants, and sources.
JANUARY 5, 1981
Mr. BOLAND (for himself, Mr. MAZZOL!, and Mr. ROBINSON) introduced the
following bill; which was referred to the Permanent Select Committee on
Intelligence
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.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Intelligence Identities
4 Protection Act".
5 SEC. 2. (a) The National Security Act of 1947 is
6 amended by adding at the end thereof the following new title:
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1 "TITLE V-PROTECTION OF CERTAIN NATIONAL
2 SECURITY INFORMATION
3 "DISCLOSURE OF IDENTITIES OF CERTAIN UNITED STATES
4 UNDERCOVER INTELLIGENCE OFFICERS, AGENTS, IN-
5 FORMANTS, AND SOURCES
6 "SEC. 501. (a) Whoever, having or having had author-
7 ized access to classified information that identifies a covert
8 agent, intentionally discloses any information identifying such
9 covert agent to any individual not authorized to receive clas-
10 sified information, knowing that the information disclosed so
11 identifies such covert agent and that the United States is
12 taking affirmative measures to conceal such covert agent's
13 intelligence relationship to the United States, shall be fined
14 not more than $50,000 or imprisoned not more than ten
15 years, or both.
16 "(b) Whoever, as a result of having authorized access to
17 classified information, learns the identity of a covert agent
18 and intentionally discloses any information identifying such
19 covert agent to any individual not authorized to receive clas-
20 sified information, knowing that the information disclosed so
21 identifies such covert agent and that the United States is
22 taking affirmative measures to conceal such covert agent's
23 intelligence relationship to the United States, shall be fined
24 not more than $25,000 or imprisoned not more than five
25 years, or both.
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3
1 "(c) Whoever, in the course of an effort to identify and
2 expose covert agents with the intent to impair or impede the
3 foreign intelligence activities of the United States, discloses,
4 with the intent to impair or impede the foreign intelligence
5 activities of the United States, to any individual not author-
6 ized to receive classified information, any information that
7 identifies a covert agent knowing that the information dis-
8 closed so identifies such covert agent and that the United
9 States is taking affirmative measures to conceal such covert
10 agent's intelligence relationship to the United States, shall be
11 fined not more than $15,000 or imprisoned not more than
12 three years, or both.
13 "DEFENSES AND EXCEPTIONS
14 "SEC. 502. (a) It is a defense to a prosecution under
15 section 501 that before the commission of the offense with
16 which the defendant is charged, the United States had public-
17 ly acknowledged or revealed the intelligence relationship to
18 the United States of the individual the disclosure of whose
19 intelligence relationship to the United States is the basis for
20 the prosecution.
21 "(b)(1) Subject to paragraph (2), no person other than a
22 person committing an offense under section 501 shall be sub-
23 ject to prosecution under such section by virtue of section 2
24 or 4 of title 18, United States Code, or shall be subject to
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4
1 prosecution for conspiracy to commit an offense under such
2 section.
3 "(2) Paragraph (1) shall not apply in the case of a
4 person who acted in the course of an effort to identify and
5 expose covert agents with the intent to impair or impede the
6 foreign intelligence activities of the United States.
7 "(c) In any prosecution under section 501(c), proof of
8 intentional disclosure of information described in such sec-
9 tion, or inferences derived from proof of such disclosure, shall
10 not alone constitute proof of intent to impair or impede the
11 foreign intelligence activities of the United States.
12 "(d) It shall not be an offense under section 501 to
13 transmit information described in such section directly to the
14 Select Committee on Intelligence of the Senate or to the Per-
15 manent Select Committee on Intelligence of the House of
16 Representatives.
17 "PROCEDURES FOR ESTABLISHING COVER FOR
18 INTELLIGENCE OFFICERS AND AGENTS
19 "SEC. 503. (a) The President shall establish procedures
20 to ensure that any individual who is an officer or employee of
21 an intelligence agency, or a member of the Armed Forces
22 assigned to duty with an intelligence agency, whose identity
23 as such an officer, employee, or member is classified informa-
24 tion and which the United States takes affirmative measures
25 to conceal, is afforded all appropriate assistance to ensure
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5
1 that the identify of such individual as such an officer, em-
2 ployee, or member is effectively concealed. Such procedures
3 shall provide that any department or agency designated by
4 the President for the purposes of this section shall provide
5 such assistance as may be determined by the President to be
6 necessary in order to establish and effectively maintain the
7 secrecy of the identity of such individual as such an officer,
8 employee, or member.
9 "(b) Procedures established by the President pursuant to
10 subsection (a) shall be exempt from any requirement for pub-
11 lication or disclosure.
12 "EXTRATERRITORIAL JURISDICTION
13 "SEC. 504. There is jurisdiction over an offense under
14 section 501 committed outside the United States if the indi-
15 vidual committing the offense is a citizen of the United States
16 or an alien lawfully admitted to the United States for perma-
17 nent residence (as defined in section 101(a)(20) of the Immi-
18 gration and Nationality Act).
19 "PROVIDING INFORMATION TO CONGRESS
20 "SEC. 505. Nothing in this title shall be construed as
21 authority to withhold information from Congress or from a
22 committee of either House of Congress.
23 "DEFINITIONS
24 "SEC. 506. For the purposes of this title:
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6
1 "(1) The term 'classified information' means infor-
2 mation or material designated and clearly marked or
3 clearly represented, pursuant to the provisions of a
4 statute or Executive order (or a regulation or order
5 issued pursuant to a statute or Executive order), as re-
6 quiring a specific degree of protection against unau-
7 thorized disclosure for reasons of national security.
8 "(2) The term 'authorized', when used with re-
9 spect to access to classified information, means having
10 authority, right, or permission pursuant to the provi-
11 sions of a statute, Executive order, directive of the
12 head of any department or agency engaged in foreign
13 intelligence or. counterintelligence activities, order of a
14 United States court, or provisions of any Rule of the
15 House of Representatives or resolution of the Senate
16 which assigns responsibility within the respective
17 House of Congress for the oversight of intelligence
18 activities.
19 "(3) The term 'disclose' means to communicate,
20 provide, impart, transmit, transfer, convey, publish, or
21 otherwise make available.
22 "(4) The term 'covert agent' means-
23 "(A) an officer or employee of an intelligence
24 agency, or a member of the Armed Forces as-
25 signed to duty with an intelligence agency-
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1 "(i) whose identity as such an officer,
2 employee, or member is classified informa-
3 tion, and
4 "(ii) who is serving outside the United
5 States or has within the last five years
6 served outside the United States;
7 "(B) a United States citizen whose intelli-
8 gence relationship to the United States is classi-
9 fied information and-
10 (i) who resides and acts outside the
11 United States as an agent of, or informant or
12 source of operational assistance to, an intelli-
13 gence agency, or
14 "(ii) who is at the time of the disclosure
15 acting as an agent of, or informant to, the
16 foreign counterintelligence or foreign coun-
17 terterrorism components of the Federal
18 Bureau of Investigation; or
19 "(C) an individual, other than a United
20 States citizen, whose past or present intelligence
21 relationship to the United States is classified and
22 who is a present or former agent of, or a present
23 or former informant or source of operational as-
24 sistance to, an intelligence agency.
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1 "(5) The term 'intelligence agency' means the
2 Central Intelligence Agency, the foreign intelligence
3 components of the Department of Defense, or the for-
4 eign counterintelligence or foreign counterterrorist
5 components of the Federal Bureau of Investigation.
6 "(6) The term 'informant' means any individual
7 who furnishes information to an intelligence agency in
8 the course of a confidential relationship protecting the
9 identity of such individual from public disclosure.
10 "(7) The terms 'officer' and 'employee' have the
11 meanings given such terms by sections 2104 and 2105,
12 respectively, of title 5, United States Code.
13 "(8) The term 'Armed Forces' means the Army,
14 Navy, Air Force, Marine Corps, and Coast Guard.
15 "(9) The term 'United States', when used in a ge-
16 ographic sense, means all areas under the territorial
17 sovereignty of the United States and the Trust Terri-
18 tory of the Pacific Islands.".
19 (b) The table of contents at the beginning of such Act is
20 amended by adding at the end thereof the following:
"TITLE V-PROTECTION OF CERTAIN NATIONAL SECURITY
INFORMATION
"Sec. 501. Disclosure of identities of certain United States undercover intelligence
officers, agents, informants, and sources.
"Sec. 502. Defenses and exceptions.
"Sec. 503. Procedures for establishing cover for intelligence officers and employees.
"Sec. 504. Extraterritorial jurisdiction.
"Sec. 505. Providing information to Congress.
"Sec. 506. Definitions.".
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97TH CONGRESS
1ST SESSION
S.391
To amend the National Security Act of 1947 to prohibit the unauthorized
disclosure of information identifying certain United States intelligence offi-
cers, agents, informants, and sources and to direct the President to establish
procedures to protect the secrecy of these intelligence relationships.
FEBRUARY 3 (legislative day, JANUARY 5), 1981
Mr. CHAFES (for himself, Mr. GOLDWATER, Mr. BENTSEN, Mr. DANFORTH, Mr.
DOMENICI, Mr. GARN, Mr. GLENN, Mr. HAYAKAWA, Mr. JACKSON, Mr.
LAXALT, Mr. LUGAR, Mr. NUNN, Mr. PRESSLER, Mr. ROTH, Mr. SCHMITT,
Mr. SIMPSON, Mr. WALLOP, Mr. HATCH, Mr. HUDDLESTON, and Mr.
THURMOND) introduced the following bill; which was read twice and referred
to the Committee on the Judiciary
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.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Intelligence Identities
4 Protection Act of 1981".
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2
1 SEC. 2. (a) The National Security Act of 1947 is
2 amended by adding at the end thereof the following new title:
3 "TITLE VI-PROTECTION OF CERTAIN NATIONAL
4 SECURITY INFORMATION
5 "PROTECTION OF IDENTITIES OF CERTAIN UNITED
6 STATES UNDERCOVER INTELLIGENCE OFFICERS,
7 AGENTS, INFORMANTS, AND SOURCES
8 "SEC. 601. (a) Whoever, having or having had author-
9 ized access to classified information that identifies a covert
10 agent, intentionally discloses any information identifying such
11 covert agent to any individual not authorized to receive clas-
12 sified information, knowing that the information disclosed so
13 identifies such covert agent and that the United States is
14 taking affirmative measures to conceal such covert agent's
15 intelligence relationship to the United States, shall be fined
16 not more than $50,000 or imprisoned not more than ten
17 years, or both.
18 "(b) Whoever, as a result of having authorized access to
19 classified information, learns the identity of a covert agent
20 and intentionally discloses any information identifying such
21 covert agent to any individual not authorized to receive clas-
22 sified information, knowing that the information disclosed so
23 identifies such covert agent and that the United States is
24 taking affirmative measures to conceal such covert agent's
25 intelligence relationship to the United States, shall be fined
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3
1 not more than $25,000 or imprisoned not more than five
2 years, or both.
3 "(c) Whoever, in the course of a pattern of activities
4 intended to identify and expose covert agents and with
5 reason to believe that such activities would impair or impede
6 the foreign intelligence activities of the United States, dis-
7 closes any information that identifies an individual as a
8 covert agent to any individual not authorized to receive clas-
9 sified information, knowing that the information disclosed so
10 identifies such individual and that the United States is taking
11 affirmative measures to conceal such individual's classified
12 intelligence relationship to the United States, shall be fined
13 not more than $15,000 or imprisoned not more than three
14 years, or both.
15 "DEFENSES AND EXCEPTIONS
16 "SEC. 602. (a) It is a defense to a prosecution under
17 section 601 that before the commission of the offense with
18 which the defendant is charged, the United States had public-
19 ly acknowledged or revealed the intelligence relationship to
20 the United States of the individual the disclosure of whose
21 intelligence relationship to the United States is the basis for
22 the prosecution.
23 "(b)(1) Subject to paragraph (2), no person other than a
24 person committing an offense under section 601 shall be sub-
25 ject to prosecution under such section by virtue of section 2
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1 or 4 of title 18, United States Code, or shall be subject to
2 prosecution for conspiracy to commit an offense under such
3 section.
4 "(2) Paragraph (1) shall not apply in the case of a
5 person who acted in the course of a pattern of activities in-
6 tended to identify and expose covert agents and with reason
7 to believe that such activities would impair or impede the
8 foreign intelligence activities of the United States.
9 "(c) It shall not be an offense under section 601 to
10 transmit information described in such section directly to thF
11 Select Committee on Intelligence of the Senate or to the Per-
12 manent Select Committee on Intelligence of the House of
13 Representatives.
14 "(d) It shall not be an offense under section 601 for an
15 individual to disclose information that solely identifies himself
16 as a covert agent.
17 "PROCEDURES FOR ESTABLISHING COVER FOR
18 INTELLIGENCE OFFICERS AND EMPLOYEES
19 "SEC. 603. (a) The President shall establish procedures
20 to ensure that any individual who is an officer or employee of
21 an intelligence agency, or a member of the Armed Forces
22 assigned to duty with an intelligence agency, whose identity
23 as such an officer, employee, or member is classified informa-
24 tion and which the United States takes affirmative measures
25 to conceal is afforded all appropriate assistance to ensure that
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1 the identity of such individual as such an officer, employee,
2 or member is effectively concealed. Such procedures shall
3 provide that any department or agency designated by the
4 President for the purposes of this section shall provide such
5 assistance as may be determined by the President to be nec-
6 essary in order to establish and effectively maintain the se-
7 crecy of the identity of such individual as such an officer,
8 employee, or member.
9 "(b) Procedures established by the President pursuant to
10 subsection (a) shall be exempt from any requirement for pub-
11 lication or disclosure.
12 "EXTRATERRITORIAL JURISDICTION
13 "SEC. 604. There is jurisdiction over an offense under
14 section 601 committed outside the United States if the indi-
15 vidual committing the offense is a citizen of the United States
16 or an alien lawfully admitted to the United States for perma-
17 nent residence (as defined in section 101(a)(20) of the Immi-
18 gration and Nationality Act).
19 "PROVIDING INFORMATION TO CONGRESS
20 "SEC. 605. Nothing in this title may be construed as
21 authority to withhold information from the Congress or from
22 a committee of either House of Congress.
23 "DEFINITIONS
24 "SEC. 606. For the purposes of this title:
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1 "(1) The term `classified information' means infor-
2 mation or material designated and clearly marked or
3 clearly represented, pursuant to the provisions of a
4 statute or Executive order (or a regulation or order
5 issued pursuant to a statute or Executive order), as re-
6 quiring a specific degree of protection against un-
7 authorized disclosure for reasons of national security.
8 "(2) The term `authorized', when used with re-
9 spect to access to classified information, means having
10 authority, right, or permission pursuant to the provi-
11 sions of a statute, Executive order, directive of the
12 head of any department or agency engaged in foreign
13 intelligence or counterintelligence activities, order of
14 any United States court, or provisions of any rule of
15 the House of Representatives or resolution of the
16 Senate which assigns responsibility within the respec-
17 tive House of Congress for the oversight of intelligence
18 activities.
19 "(3) The term `disclose' means to communicate,
20 provide, impart, transmit, transfer, convey, publish, or
21 otherwise make available.
22 "(4) The term `covert agent' means-
23 "(A) an officer or employee of an intelligence
24 agency or a member of the Armed Forces as-
25 signed to duty with an intelligence agency-
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1 "(i) whose identity as such an officer,
2 employee, or member is classified informa-
3 tion, and
4 "(ii) who is serving outside the United
5 States or has within the last five years
6 served outside the United States; or
7 "(B) a United States citizen whose intelli-
8 gence relationship to the United States is classi-
9 fied information, and-
10 "(i) who resides and acts outside the
11 United States as an agent of, or informant or
12 source of operational assistance to, an intelli-
13 gence agency, or
14 "(ii) who is at the time of the disclosure
15 acting as an agent of, or informant to, the
16 foreign counterintelligence or foreign
17 counterterrorism components of the Federal
18 Bureau of Investigation; or
19 "(C) an individual, other than a United
20 States citizen, whose past or present intelligence
21 relationship to the United States is classified in-
22 formation and who is a present or former agent
23 of, or a present or former informant or source of
24 operational assistance to, an intelligence agency.
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1 "(5) The term `intelligence agency' means the
2 Central Intelligence Agency, a foreign intelligence
3 component of the Department of Defense, or the for-
4 eign counterintelligence or foreign counterterrorism
5 components of the Federal Bureau of Investigation.
6 "(6) The term `informant' means any individual
7 who furnishes information to an intelligence agency in
8 the course of a confidential relationship protecting the
9 identity of such individual from public disclosure.
10 "(7) The terms `officer' and `employee' have the
11 meanings given such terms by sections 2104 and 2105,
12 respectively, of title 5, United States Code.
13 "(8) The term `Armed Forces' means the Army,
14 Navy, Air Force, Marine Corps, and Coast Guard.
15 "(9) The term `United States', when used in a ge-
16 ographic sense, means all areas under the territorial
17 sovereignty of the United States and the Trust Terri-
18 tory of the Pacific Islands.
19 "(10) The term `pattern of activities' requires a
20 series of acts with a common purpose or objective.".
21 (b) The table of contents at the beginning of such Act is
22 amended by adding at the end thereof the following:
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"TITLE VI-PROTECTION OF CERTAIN NATIONAL SECURITY
INFORMATION
"Sec. 601. Protection of identities of certain United States undercover intelligence
officers, agents, informants, and sources.
"Sec. 602. Defenses and exceptions.
"Sec. 603. Procedures for establishing cover for intelligence officers and employees.
"Sec. 604. Extraterritorial jurisdiction.
"Sec. 605. Providing information to Congress.
"Sec. 606. Definitions.".
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97TH CONGRESS ~ ?
1ST SESSION
.133
To amend title 18, United States Code, to prohibit the unauthorized disclosure of
information concerning individuals engaged or assisting in foreign intelligence
or counterintelligence activities, and for other purposes.
JANUARY 5, 1981
Mr. BENNETT introduced the following bill; which was referred jointly to the
Committees on the Judiciary and Permanent Select Committee on Intelligence
A BILL
To amend title 18, United States Code, to prohibit the unau-
thorized disclosure of information concerning individuals en-
gaged or assisting in foreign intelligence or counterintelli-
gence activities, and for other purposes.
1 Be it enacted by the Senate and House of Representa-
2 tives of the United States of America in Congress assembled,
3 That this Act may be cited as the "Intelligence Officer Iden-
4 tity Protection Act of 1981".
5 SEC. 2. Chapter 37 of title 18, United States Code, is
6 amended by adding at the end thereof the following new
7 section:
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156
2
1
"? 800. Unauthorized disclosure of information con-
2
cerning individuals engaged or assisting in
3
foreign
intelligence or counterintelligence
4
activities
5
"(a) Whoever, being or having been an officer or em-
6 ployee of the United States or member of the uniformed serv-
7 ices of the United States, knowingly discloses information
8 identifying any individual as associated with a department or
9 agency of the United States engaged in foreign intelligence
10 or counterintelligence activities, which association is classi-
11 fled and has not been publicly acknowledged by the United
12 States, to anyone not authorized to receive it, shall be im-
13 prisoned for not more than ten years or fined not more than
14 $100,000, or both.
15 "(b) Whoever, having or having had lawful access to
iF information identifying individuals as associated with a de-
17 partment or agency of the United States engaged in foreign
18 intelligence or counterintelligence activities, knowingly dis-
19 closes information concerning any such association which is
20 classified and has not been publicly acknowledged by the
21 United States, to anyone not authorized to receive it, shall be
22 imprisoned for not more than ten years or fined not more
23 than $100,000, or both.
24 "(c) Whoever knowingly discloses information identify-
25 ing any individual as associated with a department or agency
26 of the United States engaged in foreign intelligence or coun-
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157
3
1 terintelligence activities, which association is classified and
2 has not been publicly acknowledged by the United States, to
3 anyone not authorized to receive it, where such disclosure
4 prejudices the safety or well-being of the individual identified,
5 or damages the foreign intelligence or counterintelligence ef-
6 forts of the United States, shall be imprisoned for not more
7 than ten years or fined not more than $100,000, or both.
8 "(d) Whoever falsely asserts, publishes, or otherwise
9 claims that any individual is an officer or employee of a de-
10 partment or agency of the United States engaged in foreign
11 intelligence or counterintelligence activities, where such as-
12 sertion, publication, or claim prejudices the safety or well-
13 being of any officer, employee, or citizen of the United States
14 or adversely affects the foreign affairs functions of the United
15 States, shall be imprisoned for not more than five years or
16 fined not more than $50,000, or both.
17 "(e) Whenever, in the judgment of the head of any de-
18 partment or agency engaged in foreign intelligence or coun-
19 terintelligence activities, any person is about to engage in
20 conduct that would constitute a violation of this Act, the At-
21 torney General, on behalf of the United States, may make
22 application to an appropriate United States district court for
23 an order enjoining such conduct. Upon a showing that the
24 safety or well-being of any officer, employee, or citizen of the
25 United States would likely be jeopardized or that irreparable
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4
1 damage to United States foreign intelligence or counterintel-
2 ligence activities or foreign affairs functions would be likely
3 to result if such conduct is carried out, a permanent or tem-
4 porary injunction, restraining order, or other order may be
5 granted. Any proceeding conducted by a court under this
6 subsection for the purpose of determining whether any infor-
7 mation constitutes the type of information described in this
8 Act shall be held in camera.
9 "(f) No person other than a person described in subsec-
10 tions (a) and (b) of this Act shall be subject to prosecution as
11 an accomplice or accessory within the meaning of section 2
12 or 3 of title 18, United States Code, to the offenses pro-
13 scribed by subsections (a) and (b) or to prosecution for con-
14 spiracy to commit such offenses.
15 "(g) As used in this Act:
16 "(1) `Authorized' means determined to have au-
17 thority, right, or permission pursuant to the provisions
18 of statute, Executive order, directive of the head of
19 any department or agency engaged in foreign intelli-
20 gence or counterintelligence activities, order of a judge
21 of any United States district court, or United States
22 Senate or House of Representatives resolution which
23 assigns primary responsibility for the oversight of intel-
24 ligence activities.
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5
1 "(2) `Discloses' means to communicate, provide,
2 impart, transmit, transfer, convey, publish, or other-
3 wise make available to any person.
4 "(3) `Associated with' means having a present or
5 former employment, contractual, or other cooperative
6 relationship.
7 "(4) `Lawful access' means the opportunity to
8 know, receive, possess, or control pursuant to the pro-
9 visions of a statute, Executive order, directive of the
10 head of any department or agency engaged in foreign
11 intelligence or counterintelligence activities, order of a
12 judge of any United States district court, or United
13 States Senate or House of Representatives resolution
14 which assigns primary responsibility for oversight of in-
15 telligence activities.
16 "(5) `Classified' means designated and clearly
17 marked or represented pursuant to the provisions of a
18 statute or Executive order or rule or regulation issued
19 pursuant thereto as information requiring protection
20 against unauthorized disclosure for reasons of national
21 security.
22 "(6) The words `officer,' `employee,' and 'uni-
23 formed services' shall have the same meaning as in
24 title V United States Code, sections 2104, 2105, and
25 2101, respectively.".
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PROPOSED "KENNEDY COMPROMISE"
(c) Whoever, in the course of a pattern of activities undertaken for the pur-
pose of uncovering the identities of covert agents and exposing such identities
(1) in order to impair or impede the effectiveness of covert agents or the activi-
ties in which they are engaged by the fact of such uncovering and exposure, or
(2) with reckless disregard for the safety of covert agents discloses any infor-
mation that identifies an individual as a covert agent to any individual not au-
thorized 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
3 years, or both.
The provisions of this title shall be construed so as not to inhibit the exercise
of any right protected by the First Amendment to the Constitution.
(160)
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Hon. EDWARD P. BOLAND, Chairman, -
House Permanent Select Committee on Intelligence.
DEAR MR. CHAIRMAN : When Mr. Abrams, Mr. Scalia, and I testified before
your committee on Section 501(c) of H.R. 4, we were asked what form of legisla-
tion, achieving the same purposes as those reflected in H.R. 4, would have the
greatest chance of withstanding constitutional challenge. We are, I believe, in
agreement that a provision such as I am enclosing is the safest route ; although
Mr. Abrams continues to believe that no provision dealing with public information
is constitutional.
We hope this is of assistance to the Committee.
Sincerely,
PHILIP B. HEYMANN
Whoever in the course of a pattern of activities undertaken for the purpose
of uncovering the identities of covert agents and exposing such identities (1)
in order to encourage or assist foreign nationals or foreign powers or their
agents to impair or impede the effectiveness of covert agents or the activities in
which they are engaged or (2) in order to neutralize covert agents or the activi-
ties in which they are engaged by the fact of such exposure itself, discloses to any
individual not authorized to receive classified information, any information that
identifies a covert agent knowing that the information disclosed so identifies
such 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 3 years, or both.
O
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