INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200060009-1
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 18
• Document Creation Date: December 21, 2016
• Document Release Date: September 25, 2008
• Sequence Number: 9
• Publication Date: March 17, 1982
• Content Type: OPEN SOURCE

S 2282
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CONGRESSIONAL RECORD - SENATE March 17, 1982
Fortunately, in the bill as reported
by the Senate Judiciary Committee,
there is a requirement that any pros-
ecution against any person who has re-
vealed the name of an agent will only
be Justified when the person has acted
with intent to impair or impede the
foreign intelligence activities of the
United States.
This provision will protect those
whose intention it is to further free
discussion of governmental activities,
but at the same time it will allow pros-
ecution of those who name names in
order to harm the United States. In
the recent case of Haig against Agee,
the Supreme Court upheld the revoca-
tion of the passport of Philip Agee, a
former CIA agent who made a practice
of revealing the alleged identities of
officials serving overseas undercover.
This could be done, the Court said, be-
cause "Agee's disclosures ? * ? had the
declared purpose of obstructing Intelli-
gence operations and the recruiting of
intelligence personnel."
In other words - Agee's disclosures
were not furthering free discussion of
intelligence activities in the United
States, instead his disclosures were,
for all intent and purposes, action de-
signed to inhibit the Government's le-
gitimate intelligence operations. It is
not speech per se that would be pun-
ished, but instead the harm to foreign
intelligence activities of the United
States that flows from the disclosure.
The statute would be no different in
this way from- the espionage or trea-
son statutes. One can criticize the
United States forever and a day, but
when one begins transmitting Informa-
tion to a foreign country, these criti-
cisms can be used to prove the state of
mind necessary for punishment under
the espionage statutes.
Similarly, under the treason statute,
specific intent to aid and comfort the
enemy must be proven.
I am not a lawyer but I feel that S.
391 as reported by the Judiciary Com-
mittee and especially that committee's
amendment to section 601(c) will in-
hibit those in the business of naming
names while permitting continued free
discussion of governmental affairs. Let
us then pass this bill with a provision
that will protect the first amendment
even while deterring those who wish
to obstruct the lawful functions of our
intelligence agencies.
At the end of the floor debate on
Tuesday, Senator GORTON and Senator
QUAYLE strongly urged Senator
CHAFES, and Senator BIDEN to agree to
a compromise. The basic idea of the
compromise is to put into the bill itself
.the essential legislative history of the
Chafee amendment that was first
adopted in 1980 by the Senate Intelli-
gence Committee and that was reaf-
firmed in a floor colloquy between
Senator DURENBERGER and Senator
CHAFES.
Senator CHAFas's amendment uses
the words "pattern of activities intend-
ed 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."
Senator GORTON proposed a defini-
tion of pattern of activities that would
require proof that the main direction
of the pattern of activities is to identi-
fy and expose covert agents.
Under Senator GORTON'S compro-
mise, it would not be necessary to
prove intent to impair or impede for-
eign intelligence activities. However, it
would be necessary to prove that
someone is in the business of naming
names. This is exactly what Senator
CHAFES has said is the meaning of this
amendment. It is what the Senate In-
telligence Committee's report estab-
lished as the legislative history of Sen-
ator CHAF sx's language when it was
first reported in 1980. And it repre-
sents a serious effort to resolve the
issue by reasonable compromise rather
than continued confrontation.
Everyone recognizes that the Senate
is deeply divided over this bill. But is
that kind of division the best way to
legislate on matters as vital to the
Nation as it's intelligence capabilities
and the freedom of the press?
If one side or the other wins on this
issue, then It will be taken as a defeat
either for the intelligence community
or for the first amendment. It is a mis-
take to let this happen. Given the
choice, our fundamental commitment
to the constitutional guarantees of
freedom of the press requires us to
choose the alternative that better pro-
tects the right to print the news. But
it would be far better to make the
extra effort on both sides needed to
reach agreement on standards that
strike the delicate balance in a way
that can secure the widest agreement.
Mr. BIDEN. Mr. President, I would
like to make one closing comment on
this bill. The fact of the matter is that
this is a distinction with a difference.
It is a significant difference. The dif-
ference would be, in my opinion, that
if, in fact, this amendment is passed
changing the requirement from intent
to a requirement of reason to believe,
that we are making a significant move
in the direction that we have not
moved in the past from applying a
negligence standard on criminal ac-
tions.
The Senator from the State of
Washington, Senator GORTON, came
forward yesterday with several com-
promises, one in particular that was of
particular consequence. I believe that
even if the Chafee amendment fails, I
quite bluntly do not see how the
intent language is going to survive in a
conference. The House voted down the
intent language overwhelmingly.
The Gorton language, if we get to
that point and I am a conferee, which
I will be, will be language that I will
push as a compromise, assuming that
there is a refection of the intent lan-
guage.
It is a reasonable compromise. It sets
out a standard for defining what con-
stitutes a pattern of activity, so that it
is something of consequence. It is a
protection that would be consistent
with the constitutional requirement,
as I understand it, to protect the ac-
tions and publications and freedom of
speech of those who would publish the
names of agents.
The essence of it is fairly simple. It
suggests that in order for you to be
able to convict a reporter who has, in
fact, mentioned the name of an agent,
you would have to show that it is his
purpose, his primary purpose, to do
that. If it is an ancillary effect, if he is
writing a book or a piece on the cor-
ruption within the Agency and/or a
particular individual and he can show
that in court, he is not guilty of a
crime. The protection is not as signifi-
cant as the protection of intent, but it
is significant. It is not unimportant. I
want my colleagues to be aware of
that.
I see the Senator from Rhode Island
on his feet, and since we have 30 sec-_
onds left I will yield it to him to have
the last word.
Mr. CHAFEE. I thank the Senator
very much.
Mr. President, the so-called Gorton
language imposes a standard that
would be extremely difficult for the
prosecution to meet because the de-
fense would clearly be that it was not
the primary purpose.
As was mentioned yesterday in the
debate, the defense would be, "I told
my wife that was not the primary pur-
pose. I told my editor. I told my pub-
lisher."
So the defense that this was not the
primary purpose of the. disclosure of
these names would be a very difficult
one for the prosecution to overcome.
For those reasons, I urge my col-
leagues to support the Chafee-Jackson
amendment before us today.
Mr. President, for the past V/a years,
the Senate has labored over legislation
to prohibit the unauthorized disclo-
sure of the names of covert agents.
The distinguished Senator from Ala-
bama, the distinguished Senator from
Delaware, and many, many of my col-
leagues from both sides of the aisle
have worked hard to see that we pass
legislation which is effective, and
which is protective of first amendment
rights.
Now we are coming down to the line
on this legislation. We are coming to
the point at which we must make a
choice and vote. Two and one-half
years and many thousands of hours-
all will stand or fall on what we do
today.
Mr. President, in summarizing my
remarks, I would like to make the fol-
lowing points:
First, neither the Chafee-Jackson
language nor the committee language,
if law, would have prevented the New
York Times from publishing stories on
the Wilson-Terpil case. Wilson and
Terpil were former employees of the
CIA, and former officers are not pro-
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March 17, 1989 CONGRESSIONAL RECORD SENATE
tected in either version of the Senate
bill.
Second, nothing in the Senate lan-
guage would have prevented the
Washington Post from publishing the
name Mel Weinberg, who was involved
in the Abscam case. He, too, is not a
covert agent as defined by this bill.
Third, the House of Representatives
passed a bill containing the Chafee-
Jackson language by a vote of 354 to
56 last year. If the Senate does not
support the amendment language here
today, there will be a conference in-
volving major differences between two
bills. Mr. President, it is very impar,
tant for Senators to understand that a
vote against the Chafes-Jackson
amendment is a vote for the possibility
there may be no bill at all on this sub-
ject this year.
Fourth. there has been a lot of
debate on the "specific intent" stand-
ard which the Judiciary Committee
adopted by a narrow vote of 9 to 8, and
the "reason to believe" standard that
Senator JACKSON and I are promoting
in our amendment. Mr. President, 2
years ago in hearings before the
Senate Intelligence Committee.
Robert L Keuch, Associate Attorney
General under President Carter . testi-
fied that:
The "specific intent" requirement may
"chill" legitimate critique and debate on
The ponw,
'specific intent" requirement can
hamper effective enforcement by creating a
difficult jury question;
The "specific intent" requirement will fa-
cilitate areymail efforts, and
The Carter Administration Justice De-
partment did not know whether the "specif-
ic intent" requirement would be upheld as
constitutional.
It was because- of Mr. Keuch's con-
cerns that the Senate Intelligence
Committee and the Justice Depart-
ment reworked the "specific intent"
standard and came up with the objec-
tive standard of "reason to believe."
Regarding the objective standard,
Deputy Attorney General Renfrew of
the Carter administration, then wrote:
This formulation substantially alleviates
the constitutional and practical concerns ex-
pressed by the Justice Department with
regard to earlier versions of this bill that in-
cluded a requirement that prohibited disclo-
sure made with specific "intent to impair or
impede" U.S. intelligence activities.
Fifth, the Chafee-Jackson language
is the only version that has been en-.
domed by both the Carter and Reagan
administration Justice Departments.
It has passed the House of Repre-
sentatives. It is preferred by the CIA.
If the Senate goes back to the "specif-
ic intent" standard which the Judici-
ary Committee narrowly adopted, we
will be going right back to a standard
which the Justice Department-the
Carter administration Justice Depart-
ment-declared inadequate over 2
years ago. This does not make sense to
me.
Sixth, there has been a good deal of
press and media attention paid to
agent identities legislation. Some of
.my colleagues may have been mislead
into thinking that press criticism ap-
plies only to our amendment. Mr.
President, let us be fain on this point.
Press criticism of this legislation has
consistently applied to all versions of
identities .legislation. On March 4, the
New York Times editorialized that:
Congress cannot reach private citizens like
Louis Wolf, publisher of the "Covert Action
information Bulletin," without chilling
other, more precious journalism or debate.
On March 2, the Christian Science
Monitor wrote in an editorial that to
deny American citizens: the right to
publicize information _ obtained
through public sources "may be suffi-
clent in itself .to render the act uncon-
stitutional.", Mr. President, the ArDert-
can Civil Liberties Union; the so-called
100 distinguished law professors and
virtually all of the newspaper editori-
als enclosed in Senator. BmsN's recent
"Dear Colleague" letter oppose both
versions of the language In subsection
601(c). They call for' deletion of this
subsection. They claim, in effect, that
the problem of "naming names"
cannot be solved, and that the Con-
gress should not try.
Finally, while the media may coun-
sel the Congress not to attempt this
legislation, I believe we have a respon-
sibility to do so. Long ago, it was decid-
ed that one's right to freedom of
speech ends where another man's
safety begins. My uncle, Zechariah
Chafee, wrote in his classic work titled
.'Free Speech in the United States"
that the boundary line of free speech
is fixed close to the point where
words will give rise to unlawful acts."
Mr. President, naming names has
given rise to unlawful acts. Richard
Welch was murdered in Greece. The
Kinsman family was terrorized in Ja-
maica. Even as I speak here today,
American officials are being detained,
threatened, and harassed in Nicara-
gua. There is no right under freedom
of speech to cry "fire" in a crowded
theater. There is no right, having ob-
served the departure of a troopship, to
publish this -fact to the world.
Mr. President, it is my judgment as
well as my deepest belief. that this
Congress can and must place a crimi-
nal penalty on the pernicious activity
of "naming names." We must protect
the lives and missions of those men
and women who serve this Nation and
this Congress on difficult end danger-
ous missions abroad,
I urge my colleagues to vote for this
amendment.
Mr. BIDEN. Mr. President, I ask
unanimous consent that. Senators who
wish to put statements into the
RaooRD on this matter be allowed to
do so even after the vote while busi-
ness is open today and have their
statements appear as if made prior to
the vote, That is because we were not
able to confer, with all Senators on
this unanimous-consent agreement.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
S 2283
Mr. MITCHELL. Mr. President, I
rise, in opposition to the amendment
offered by the Senator from Rhode
Island, Senator Cuaazz. The legWa-
tion we are considering is intended to
address a serious problem affecting
our national security. The reprehensi-
ble actions of a few individuals who
seek to impede our intelligence activi-
ties by disclosing the names of our
covert agents overseas deserve the
Senate's concern. Within the limits of
the Constitution, we must act to pre-
vent the recurrence of these disclo-
sures and to protect the safety of our
covert agents.
There Is no disagreement over the
bill's objectives. The disagreement is
over how best, and constitutionally, to
achieve those object. Specifically,
the disagreement centers on the legal
test to be applied to the motivation of
the person accused of naming names.
Did the person have reason to be-
lieve that his or her actions would
impair or impede the foreign intelli-
gence activities of the United States?
Or did the person bAend to impair or
impede the foreign intelligence activi-
ties ? of the United States? The differ.
ence is significant, both with respect
to the practical effect and the consti-
tutionality of the legislation before us.
The subject matter of this bill falls
within a questionable area of Constitu-
tional law. There Is no established case
law or precedent tart :establishes
whether our atteft , to, prohibit this
activity are oonstit llarsaL, Cotistitt -
tional scholars widely vying
analyses of the c Ut1an11ity +o f
both versions of the Many believe
that any attempt to punish the publi-
cation of information derived solely
from public sources is unconstitution-
aL
We cannot here resolve that aspect
of the issue, Unquestionably, a court.
perhaps the Supreme Court, will be
the final arbiter of the constitutional
question. But that does not mean we
should ignore the constitutional sig-
nificance of this or any other leglala.
tion we consider.
It is obvious that this bill will be
tested by comparing the interests in-
volved under constitutional principles.
We are considering a proposal which .
affects the exercise of rights guaran-
teed by the first amendment. We are
proposing that certain activities,
which on their face fall within a_con.
stitutionally protected area, become il.
legal and punishable.
We know that this legislation will be
challenged in court. Obviously, we
should carefully analyze these propos-
als, to assure that. we achieve the ob-
jective of prohibiting further disclo-
sures endangering our intelligence ac.
tivities while at the same time, making
a minimal intrusion, on the exercise of
the first amendment rights.
Clearly, the "reason to believe"
standard is open to more serious and
credible constitutional challenge than
the intent standard. Clearly, the
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 S 2284
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CONGRESSIONAL RECORD - SENATE March 17, 198,2
"reason to believe" standard would the reporter have had a reason to be. tal to conviction of a crime. It should
have a more chilling effect on more lieve that her activities would impair be required here.
first amendment activity. or impede the intelligence activities of There being no objection, the ex-
The compelling question, then, be- the United States? cerpts were ordered to be printed in
comes whether S. 391, as reported, will Given the above circumstances, a the RECORD, as follows:
achieve the objective we all share. Will jury would have no alternative but to (From the New York Times, Mar. 4, 19821
individuals who have engaged in a sys- find the reporter guilty of violating THE SPY BILL WRAPPED IN THE FLAG
tematic effort to destroy our intelli- the law, under the Chafee language. I
gents capabilities to operate covertly firmly believe that this is not the The closer the Senate gets to voting on
by disclosing agents' identities be sub- intent of my good friend from Rhode the clearer it be comes that this bill Protection Inger-
was
ject to prosecution and conviction Island. Nonetheless, I am convinced or the y exceeds its s announced s . It t was
under the "intent" standard? that this would be the outcome if the p purpose.
I think they will. A large number of prompted by former agents who break their
n
my colleagues think they will. Even Chafee language were enacted. oaths and expose American n secret agents in
the tthi which wfavors ill. the Senator CHAr'sa has argued that his risky intelligence work. But Congressional
amendment would substitute an objet- anger soon spread to individuals who never
Chafee language, thinks they will. In tive "reason to believe" standard for worked for the Government but engage in
response to a question posed by Sena- an overly broad, "subjective intent" similar exposures using publicly available
tor BiDax at a hearing on this bill. Mr. standard. I submit that it is the information And that, possible turn, has raised
Richard K. Willard, testifying on .. concern use of the act
behhalf of the Attorney General, un- reason to believe standard, not the' aggainst news about the possib organizations.
b e intent standard, which is overly broad. If there was any doubt that the act ex-
e
tion quivocally
would stated support that hat min,str- It has also been argued that the tends that far, it has now been put to rest.
What then is the either the
controversy? version. Much intent standard would pose prosecu- Senator John Chafee, a chief sponsor, has
torial problems in those cases where clarified the bill's threat to conventional
of it has focused on whether the an individual claims his or her intent journalism-and public discussion generally.
reason to believe language would have was not to impair or impede the intel- Asked whether a prosecutor could use the
a chilling effect on the investigative ligence activities of the United States, tins for xposing m crimes and news abuses by
reporting of persons not engaged in
the but rather to inform the public, or agents and informants, the Senator had this
activity of naming names, but even to "improve" U.S. intelligence. In reply: "I'm not sure that The New York
rather in the activity of exposing th words of Senator CmAraz, in these Times or The Washington Post has the
abuses of power by the executive cases, the intent standard would pro- right to expose names of agents any more
branch, through the operations of the vide "a loophole big enough to drive a than Mr. Wolf or Mr. Agee," two of the
CIA. truck through." bill's main targets. "They'll just" have to be
The Chafee amendment would apply But it is not enough merely to assert careful about exposing- the names of
to those who "in the course of a pat- agents."
tern of activities intended to identify what the defendant's intent was. It Senator Chafee makes the bill's danger
and expose covert agents and with will be up to the prosecution, before a explicit without seeming to understand its
reason to believe that such activities jury, in a court of law, to prove intent. cost to public discussion of security issues.
would impair or impede the foreign in- It will be up to a jury to decide, based Perhaps inadvertently, he makes the case
telligence activities of the United on the evidence presented at the trial, for trimming back this inflated piece of leg-
States ? ' ?" what the defendant's intent was in islation. No assurances that the law would
Senator Crlarse has argued that the publishing the names of the covert be carefully administered can suffice when
agents. the warning to reporters is: be careful about
pattern of activities language is de- We could debate forever what we be- getting the Government mad.
signed specifically to narrow the scope Unfortunately, to cite a case in The
of criminal liability so as to protect lieve a person's intent was in a given Times's experience, being careful doesn't
the civil liberties of those, such as in- hypothetical. The fact remains, how- help decide how to deal with former spies
vestigative reporters, who are not in ever, that it will be up to a jury to like Edwin Wilson and Frank Terpil. The
the business of naming names. decide. To assert that juries do not Times put together-carefully-,stories
But what constitutes a pattern of ac- have the ability to determine intent about how the former agents trained terror-
tivities? Section 606(10) of the bill de- borders on the ludicrous. As a former fists abroad and engaged in suspicious weap-
fines spatters of activities as a series Federal Judge, I can assure my col- ons and technology deals. The stories raised
of acts with a common purpose or ob- leagues that every day in every State tions to questions about
the e Central the former spice Intelligence ' co Agency,
jective. What then constitutes a series Juries determine intent. whether Agency,
real or r feigned.
of acts? Finally, during the course of this At a minimum, these foreign adventures
For the sake of discussion, let us debate it has been argued that the challenged the country's ability to avoid em-
consider a hypothetical situation in "reason to believe" standard will in barrassment by once-trusted employees.
which a reporter for the New York fact protect investigative reporters' The stories brought about other investiga-
Times learns of a CIA plot to over. first amendment rights more than will tions, by Congress and the C.I.A. itself.
throw the Sandinista government in the intent standard. I disagree. The But it doesn't seem to matter how much
Nicaragua. Given recent press reports, Society of Professiolaal Journalists, care went into those stories. It doesn't
matter how much they have been supported
this may be more than hypothetical. the American Newspaper Publishers by official investigations. None of that
Nonetheless, let us assume that in the Association, the National Newspaper would protect the paper against a wrathful
course of the investigation the report- Association, the Reporters Committee prosecutor armed with the pending bill.
er conducts interviews with Nicara- for Freedom of the Press, and the Na- The Senate should restrict it to the pun-
guan officials for the purpose of iden- tional Association of Broadcasters all ishment of people like Philip Agee, the
tifying and exposing those agents disagree. The editors of virtually every former spy who first specialized in agent ex-
within the CIA who are involved in major newspaper in the country dis- posure. Congress cannot reach private citi-
the plot to overthrow the government agree. zens like Louis Wolf, publisher of the
with-
there. Would these repeated Action Information Bulletin, with-
peated inter- I ask unanimous consent to have out chilling other, more precious journalism
views not constitute a "pattern of ac- printed in the RscoRD a few excerpts and debate. In no case can the Senate re-
tivities," that is, a series of acts in the of some of these editorials. I want to sponsibly follow the House's reckless exam-
context of the Chafee language? make it clear that these excerpts do ple and make it a crime to identify an agent
ed a high-ranking CIA official who in- bill; rather, they express their prefer- Until now, the Reagan Administration has
formed her that if the Times runs'the ence for the intent standard over the managed to wrap this bill in the flag. That
story it will definitely impede the for- "reason to believe" standard. conceals its danger to liberty-and to the
public knowledge on which true national se-
eign intelligence of the United States. That . preference is well founded. curity rests. There is a difference between
In writing the story, then, would not Proof of criminal intent is fundamen- patriotism and chauvinism. Senators Biden,
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S 2286 CONGRESSIONAL RECORD - SENATE March 17, 1982
departure from the American tradition of reform. Perhaps it will still be rescued by a agencies virtually unanswerable to the in-
free speech and press. Yet Congress is seri- clear-eyed senate judiciary committee. quiries of a free press or a critical public.
ously considering a bill to make publishing Congress's anger was first drawn by Philip Two recent manifestations of this trend are
names of covert intelligence agents, even on Agee, a former C.I.A. agent who practiced a noteworthy:
the basis of publicly available knowledge, a crude and brutal form of politics. Applying 1. The House last week enacted a measure
crime. The House passed such a measure his knowledge of spying, he tried to destroy that would make it a crime for private citi-
last month and a similar bill, almost as ob- covert operations by figuring out which zens to disclose the identity of a U.S. intelli-
jectionable, awaits a vote by the Senate. Americans were stationed abroad under gence agent, even if the information came
The Senate should bring Congress to its false cover and publishing their names. from public sources. Lawmakers have
senses and reject this proposal. Louis Wolf, a writer who never served in sought such a measure for the past five
Government is free to keep its secrets-in Government, does the same thing, appar- years after a CIA station chief in Athens
ways that do not offend the First Amend- ently without the benefit of inside informa- was assassinated following publication of his
ment. It may swear employees in sensitive tion. name.
jobs to secrecy and it may punish violations "The Philip Agees of this world" are said 2. CIA chief William Casey Is urging Con-
of their oaths. But to pass a law that de- to be the targets of this reckless legislation gress to exempt national intelligence agen
clares non-secrets off limits is to abridge the and Mr. Agee, at least, has had few defend- cies from the Freedom of Information Act,
freedom of speech and press. Congress may ers. He has obviously violated his oaths and which allows private citizens (including
not do that. obligations to protect intelligence secrets journalists) the right to petition govern-
The legislation has strayed from an earli- gained on the job. But outlawing what Louis ment agencies for nonclassified information.
er, more reasonable course. Congress was Wolf does strikes at every reporter and Admittedly there is something to be said
rightly angry that Philip Agee, a former scholar who would publish facts that Gov- on behalf of both moves. Identifying names
C.I.A. agent, misused Inside information ernment prefers to keep concealed. of secret agents is reprehensible. The press,
when he published lists of secret American Constitutional freedoms aside, such a pro- for Its part, must exercise the highest
agents for the avowed purpose of destroying hibition is profoundly unwise. Most report- degree of responsibility and professionalism
their effectiveness. Present and former ing, even in embarrassing terrain, advances in national security mattem
agents may not violate their secrecy oaths American interests. In recent weeks, for ex- What is worrisome, however, is that the
even In pursuit of their First Amendment ample, this newspaper has published numer. way the House bill has been drafted could
rights. ous articles about the shady activities of two prevent the disclosure of abuses by intelli-
But then the bill's drafters went further. former American spies, Edwin Wilson and gence agencies. The measure says that a
provoked by the antics of Louis Wolf, who Francis Terpil. Their ambiguous ties to the person, including a journalist, would be
never worked for the Government and was C.I.A. and their dealings with terrorists criminally liable if he or she had "reason to
never entrusted with its secrete Working have damaged the United States and fos- believe" that disclosure of the agent's iden-
from public documents, he has compiled tered violence abroad. Names are indispens- tity would harm national security interests.
and published similar lists of supposed able in such stories. This was a change from a more restrictive
agents. The House bill is so loosely drawn that a House Intelligence Committee version that
However reprehensible such activity may prosecutor more interested in secrecy than said criminal liability would result if the
be, it is simply unconstitutional to try to reform could well consider The Time's sto- person doing the disclosing had specific
punish outsiders for trying to figure out, ries illegal. Never mind that they have in-' "intent to impair or impede the foreign In-
talk about and write about those secrets. It spired official soul-searching and a neces- telligence activities of the United States."
is also unwise, for it could reach more con- esry Senate inquiry. The Senate should reject the House
ventional reporting, which often must and The danger within the danger is this bill's phrasing and adopt the stricter-intent re-
should say things that Government doesn't standard of legal proof. It would ask a jury quirement. The fact Is that in recent years
want said. to decide whether a publisher had "reason there have been disclosures of a number of
Even more dangerous is the loose stand- to believe" that disclosing an agent's identi- cases where federal officials and intelligence
and of proof in the House version. A pros- ty would damage national security; in other officials have misused their authority and
ecutor could bring a charge, and a jury words, the mere assertion by a protective violated the law. Would the public be better
could convict, if the evidence merely showed Government that it might suffer damage served for not having had the abuses come
that the publisher had "reason to believe" would become evidence of a crime of speech. to light, or even letting the persons involved
the disclosure would hurt U.S. intelligence. The House refused to settle for a more continue in their wrongdoing? The House
That is, whatever his state of mind, the de- rational standard, requiring proof of "intent bill invites coverups based on "national se-
fendant should have known better. At least to Impair or impede" the nation's foreign in. curity" allegations.
the pending Senate bill requires evidence telligence. Not even the Director of Central As for totally excluding the CIA and other
that the accused fully Intended to impair or Intelligence, William Casey, wanted to go intelligence agencies from the Freedom of
Impede American intelligence by the very beyond that. Information Act, such a step would be injur-
act of disclosing a secret name. National security is not synonymous with ious to the public. The Freedom of Informa-
The Reagan Administration wants the secrecy ? at all costs. Prudent safeguards tion Act already excludes the release of a
looser version but doesn't need it. William against the irresponsible do not require a broad range of classified information. To
Casey, the C.I.A. chief, wrote Congress last sacrifice of constitutional liberties. Members exempt a spy agency entirely from any
spring that either version would meet the of Congress are paid to know the difference. measure of accountability is to make that
Government's needs. Congress has every agency in a sense the master of the public.
reason to believe that both versions are un- [From the Christian Science Monitor, Sept. For lawmakers and the Reagan adminis-
constitutional, so a Senate vote this week 29, 19811 tration, the delicately balanced goal must be
for either amounts to posturing, showing f a s reckless Throughout United States history there to protect US agents and spy agencies-as
e all patriotism. And is has always been an uneasy tension between well as the public and nation they are called
at t a
for choosing the more of fen- - e there e
excuse
save s
those persons who have sought to protect upon to serve.
version.
national security and state secrets and civil
-_ ''"""' ?' `??" of speech and the abosolute accountability The overwhelming House approval of
A Dmcs Dzrzxsz or INxsct.msarca of public officials. Sometimes the tension sweeping legislation making It a crime to
The House of Representatives voted the has equalized itself out. All too often, how- disclose the names of US intelligence agents
other day to prohibit the identification of ever, there have been periods of excess poses a threat to the workings of the press
present and former American intelligence when the hand of authority was used to and could limit the opportunity of Ameri-
agents, even if the knowledge is gained from stifle dissent, as in the case of the Wilson cans to learn about the doings of their own
public sources. Fortunately this legislative administration during World War I when it government.
folly Is forbidden by the Constitution, vigorously sought to jail "subversives" and So-called "names of agents" bills have
which says Congress shall make no law Congress enacted the Espionage and Sedi- been a staple of the legislative diet in Wash-
abridging free speech and press. Unfortu- tion acts. ington for five years. The primary target of
nately for freedom-and national security- While the present period obviously repre- all of the bills has been one man, former
such a law could inhibit a lot of worthy sents nothing like the drama of those years, CIA agent Philip Agee, who has made a
speech before the courts administer the there is it certain mood in the land which, career of ferreting out and exposing the
final constitutional rites. unless carefully controlled, could invite a names of clandestine US agents abroad.
It's a case of blind zeal and misdirected return to the kind of secrecy and lack of ac- The object of Agee's work is to undermine
anger. Understandably Incensed by a few in- countability that often marked government US intelligence efforts and he does not have
dividuals who specialize In blowing the cover before the Watergate-era reforms of the and should not have any political support.
of secret operatives , abroad, the House mid-1970s. Efforts are currently underway Thus, there is no opposition to provisions of
would indiscriminately suppress reporting to so shroud U.S. intelligence agencies in a the bill enacted by the House which would
that exposes intelligence abuses and stirs privileged shield of secrecy as to make such make it a crime for persons with access to
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S 2288 CONGRESSIONAL RECORD - SENATE March 17, 1982
peacetime. Never has the publication of in. Yet the House of Representatives, urged "reason to believe" standard, because
formation in the public domain by private on by the Reagan administration, has reporters would fear criminal prosecu-
citizens been made an offense." passed a bill that could severely penalize tion. Both these arguments, in my
In all intellectual modesty, one must ask newsmen and other researchers who dis-
how judgment, miss the mark.
"secret" agents whose names are al- close names of spies when reporting on in-
ready in the public domain are endangered telligence activities. First of all, a Soviet mole in the CIA
by the publication of their names. Certainly Senators Huddleston and Ford can help would be a Soviet covert agent, not a
the "enemy," whomever that might be at a head off this ill-conceived measure by back- CIA covert agent, whatever his job de-
given time, would already have ferreted out ing a much tighter Senate version, which scription may say. He would work for
this information. Under this bill as it stands, could come to the floor as early as this the Soviets. They would be his mas-
it really seems that it is the bureaucracy week. Mr. Huddleston has a special interest tindeed his principals. To say that
which is the main object of protection, since he helped draft a charter designed to ters,
Soviet mole would be a CIA covert
rather than CIA agents. And it is the public keep the CIA within constitutional bounds. a
The Senate Judiciary Committee is sched- tecting undercover agents stationed abroad.
uled to vote tomorrow on Nevadans should On two occasions, CIA employees were at-
object vigorously to the bill in its present tacked after anti-agency zealots disclosed
form. Times is short, but the bill can be de- their identities.
feated even now, if the public shows it The trouble is that reporters and scholars
knows the dangers created by the bill. and, for that matter, all private citizens,
Let us protect overseas agents indefinite- could be fined and jailed even if they
ly. But let us do so through constitutional "reveal" names gleaned from unclassified
means which protect our control of govern- sources.
ment as well as the agents. One result, whether Intended or not,
[From the Richmond Times Dispatch, Oct.
15, 19811
PROTECTING U.S. SPIES
Philip Agee, a former CIA agent, indulged
in the despicable practice of publishing the
names of U.S. intelligence agents abroad in
an effort to destroy their effectiveness. In
the process, he gravely endangered the lives
of these persons.
A law is needed to enable the government
to move forcefully against anyone who In-
tentionally puts our secret agents in jeop-
ardy by revealing their identities. Congress
is in the process of enacting such legislation.
The House of Representatives passed a
bill designed to achieve that goal, but many
people worry that while the bill's intent is
laudable, its wording runs afoul of the First
Amendment's protection of free speech. The
bill would make it a crime for anyone to
publish such names if he had "reason to be-
lieve" it could endanger the persons named.
The fear is that a newspaper or broadcast-
ing station or an individual writer might ef-
fectively be prevented from making public
information about government corruption
involving an intelligence agent If a govern-
ment representative warned in advance that
the publication could damage the agent.
So the Senate Judiciary Committee has
voted 9-to-8 to narrow the bill to the extent
that a person could be prosecuted for re-
vealing agents' names only if he acted with
specific "intent to impair or impede" the na-
tion's intelligence activities. There. was not
the slightest doubt that Philip Agee acted
from such a motive.
It is not easy to draft a bill that attains
the proper balance between protecting
agents' identities, on the one hand, and
First Amendment rights, on the other. The
most effective protection of the agents
might be provided by making it illegal to
publish their names under any conditions,
but that would do violence to the principle
of free speech, since there could be unusual
situations in which such publication would
be justified in the overall national interest.
The Senate committee amendment ap-
pears to represent a reasonable effort to
strike the proper balance.
(From the Louisville Times, Oct. 21,19811
BAD BILL, BETTER BILL-SENATE SHOULD
REJECT HOUSE CIA MEASURE
If there's a lesson to be learned from the
government's lethargic reaction to the dis-
closure that former CIA agents helped
Libyan terrorists, It's that public scrutiny of
the intelligence agency is more necessary
than ever.
would be to discourage legitimate, necessary
discussion of CIA failures, blunders and
abuses, of which there have been plenty.
Under the House bill, a prosecutor would
only have to prove a reporter had "reason to
believe" his investigation would impair or
impede intelligence activities. Well docu-
mented stories. often "impair or impede"
misguided government programs.
Defenders of this approach argue lamely
that newsmen and other citizens could
report intelligence misdeeds to Congress,
the CIA director or the Justice Department.
These, of course, are the same folks who
have been less than eager watchdogs in the
past.
Or, goes the argument, critical material
could be published without the names of
wayward agents. In many cases, however,
such self-restraint would simply contribute
to a cover-up.
The Senate Judiciary Committee has
come up with a better bill, and the Ken-
tucky senators should join those who hope
to fend off amendments. Under the Senate
version, a citizen could be successfully pros-
ecuted only if he disclosed names with mali-
cious intent to disrupt intelligence work.
That language could not easily be stretched
to cover legitimate reporting.
President Reagan has given the senators
another excellent reason to resist changes
in their bill. He is considering a plan to
allow the CIA to spy on American citizens,
open mail, infiltrate legal groups and all the
rest. This Is not the time, In short, to relax
surveillance of the intelligence community.
Mr. DENTON. Mr. President, there
has been much rhetoric about the al-
ternate approaches which we are now
considering.
We have been told that the objective
standard set forth in the Chafee/Jack-
son amendment would somehow
impose a chilling effect on the press,
which, it is asserted, would be inhibit-
ed from exercising its duty and right
to uncover and disclose, to the public,
incidents that its representatives be-
lieve violate the standards to which
the intelligence community should be
held.
We have heard that, with such an
objective standard, reporters working
with unclassified information could
not contribute to the discovery of a
mole who worked his way into the
CIA. We have been told that the
matter of Frank Terpil and Edwin
Wilson would not have come to light if
ployment simply would be a cover, the
means by which he would gain access
to sensitive information.
So I think it is wrong to suggest
chilling of the press-if in fact the
target of its investigation is a mole.
Parenthetically, I must note that a
U.S. Journalist has the same responsi-
bility as any U.S. citizen to report such
suspicions to Government authorities.
This bill provides that the two Intelli-
gence Committees of Congress should
receive information of that nature.
A second argument has been ad-
vanced. It has been suggested that,
had it not been for the press, we would
not know what we do about Terpil and
Wilson. I must say that I believe that
argument overlooks the excellent work
performed by the FBI, the U.S. De-
partment of Justice, and the New
York State Prosecutor's office. Yes; it
is true that little had appeared in the
press concerning Terpil and Wilson
before one of the parties to the con-
spiracy furnished information to a
noted journalist. The point is that,
prior to that time, the investigation
and prosecution of the case had been
carried forward by State and Federal
authorities. In fact, indictments had
already been returned in New York,
and were subsequently returned in the
District of Columbia.
I am very sensitive to the concerns
of the press, but on balance I believe
that the American people want a law
with teeth and that the agents who
lay their lives on the line for us every
day have a right to expect a law that
affords them maximum protection. To
adopt the "specific intent" standard
would be misleading, for it would pur-
port to provide a solution to the very
serious problem of unauthorized dis-
closure of the names of intelligence
agents without actually doing so.
Moreover, the "subjective intent"
standard would compel the Govern-
ment to gather and present evidence
about the particular motives of the de-
fendant.
Mr. President, I urge my colleagues
who are interested in putting a stop to
the dangerous practice of naming
names to join me in supporting the
Chafee/Jackson amendment.
Mr. WEICKER. Mr. President, I
strongly urge my colleagues to support
S. 391, the Intelligence Identities Pro-
tection Act, as reported by the Judici-
ary Committee.
S. 391 makes it a crime to disclose
the identity of undercover or covert
intelligence agents. This criminal sanc-
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S 2290 CONGRESSIONAL RECORD - SENATE March 17, 1982
Mr. JACKSON. Mr. President, I Mr. BRADLEY. Mr. President, I
move to reconsider the vote by which send an amendment to the desk and
the amendment was agreed to. ask for its immediate consideration.
Mr. CHAFEE. Mr. President, I move The PRESIDING OFFICER. The
to lay that motion on the table. clerk will state the amendment.
The motion to lay on the table was The assistant legislative clerk read
agreed to. as follows:
Mr. BRADLEY addressed the Chair. The Senator from New Jersey (Mr. BRAD-
Mr. BRADLEY. Mr. President, I sug- Mr. BRADLEY. Mr. President, I ask
gest the absence of a quorum. unanimous consent that further read-
The PRESIDING OFFICER (Mr. ing of the amendment be dispensed
MATTINGLY). The clerk will call the with.
roll. The PRESIDING OFFICER. With-
The assistant legislative clerk pro- out objection, it is so ordered.
ceeded to call the roll. The amendment is as follows:
Mr. BRADLEY. Mr. President, I ask Strike out all after the enacting clause
unanimous consent that the order for That this his and i Act t maay liy be e cited cited a s s the the "Intel Intel following li? thereof -
the quorum call be rescinded. gence Identities Protection Act of 1981".
out objection, it is so ordered.
The Senator from. Rhode Island is
recognized.
Mr. CHAFEE. Mr. President, before
leaving the floor, I wish to thank all
the Senators who supported my
amendment. In particular, I would like
to thank the senior Senator from
Washington (Mr. JACKSON) who did
such a wonderful job. I also thank
Senators TIURmoND, DENTON, and
EAST, who have worked hard to see
this amendment become law.
I also thank Senator BAKER, the dis-
tinguished majority leader, and Sena-
tor GoLDwATER, chairman of the
Senate Intelligence Committee, as well
as Senators GRAssLEY, TOWER, HEFLIN,
HAYAKAWA, DURENBERGER, and WALLOP,
who have taken the time to speak on
this issue on the floor of the Senate.
Finally, I would like to thank Will
Lucius, of Senator THURMOND's staff,
Joel Lisker, and Bert Milling, of
Senator DENTON'S staff, and Sam Fran-
cis of Senator EAST'S staff on the Ju-
diciary Committee for their untiring
efforts In getting this amendment
through the committee, as well as
Chip Andreae of Senator LUGAR'S,
staff, Bob Butterworth of Senator
JACKSON'S staff, and Victoria Toens-
Ing, chief counsel of the Senate Intelli-
gence Committee. They have made a
great contribution, and they should be
commended for it.
Also, a special thanks to Rob Sim-
mons, who is the staff director of the
Senate Intelligence Committee.
The PRESIDING OFFICER. The
bill is open to further amendment.
Mr. BRADLEY. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded to call the roll.
Mr. BRADLEY. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
UP AMENDMENT 828
(Subsequently numbered amend-
ment No. 1339.)
SEC. 2. < The National Security Act of
1947 is am ded by adding at the end there-
of the following new title:
"TITLE VI-PROTECTION OF CERTAIN
NATIONAL SECURITY INFORMATION
"PROTECTION OF IDENTITIES OF CERTAIN
UNITED STATES UNDERCOVER INTELLIGENCE
OFFICERS, AGENTS, INFORMANTS, AND SOURCES
"SEC. 601. (a) Whoever, having or having
had authorized access to classified Informa-
tion that identifies a covert agent, inten-
tionally discloses any information identify-
ing such covert agent to any individual not
authorized to receive classified Information,
knowing that the information disclosed so
identifies such covert, agent and that the
United States is taking affirmative measures
to conceal such covert agent's intelligence
relationship to the United States, shall be
fined not more tl3an $50,000 or imprisoned
not more than ten years, or both.
"(b) Whoever, as a result of having au-
thorized access to classified information,
learns the identity of a covert agent and in-
tentionally discloses any information identi-
fying such covert agent to any individual
not authorized to receive classified informa.
tion, knowing that the information dis-
closed so identifies such covert agent and
that the United States is taking affirmative
measures to conceal such covert agent's in-
telligence relationship to the United States,
shall be fined not more than $25,000 or im-
prisoned not more than five years, or both.
"(c) Whoever, in the course of a pattern of
activities intended to identify and expose
covert agents and with reason to believe
that such activities would Impair or Impede
the foreign intelligence activities of the
United States, discloses any information
that identifies an individual as a covert
agent to any individual not authorized to re-
ceive 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 relation-
ship to the United States, shall be fined not
more than $15,000 or imprisoned not more
than three years, or both.
"DEFENSES AND EXCEPTIONS
SEC. 602. (a) It is a defense to a prosecu-
tion under section 601 that before the com-
mission of the offense with which the de-
fendant is charged, the United States had
publicly acknowledged or revealed the intel-
ligence relationship to the United States of
the individual the disclosure of whose intel.
ligence relationship to the United States is
the basis for the prosecution.
"(b)(l) Subject to paragraph (2), no
person other than a person committing an
offense under section 601 shall be subject to
prosecution under such section by virtue of
section 2 or 4 of title 18, United States Code,
or shall be subject to prosecution for con-
spiracy to commit an offense under such
section.
"(2) Paragraph (1) shall not apply in the
case of a person who acted in the course of a
pattern of activities intended to identify and
expose covert agents and with reason to be-
lieve that such activities would impair or
impede the foreign intelligence activities of
the United States.
"(c) It shall not be an offense under sec-
tion 601 to transmit information described
in such section directly to the Select Com-
mittee on Intelligence of the Senate or to
the Permanent Select Committee on Intelli-
gence of the House of Representatives.
"(d) It shall not be an offense under sec-
tion 601 for an individual to disclose infor-
mation that solely identifies himself as a
covert agent.
"PROCEDURES FOR ESTABLISHING COVER FOR
INTELLIGENCE OFFICERS AND EMPLOYEES
"SEC. 603. (a) The President shall estab-
lish procedures to ensure that any individu-
al who is an officer or employee of an intel-
ligence agency, or a member of the Armed
Forces assigned to duty with an intelligence
agency, whose identity as such an officer,
employee, or member is classified informa-
tion and which the United States takes af-
firmative measures to conceal is afforded all
appropriate assistance to ensure that the
identity of such individual as such an offi-
cer, employee, or member is effectively con-
cealed. Such procedures shall provide that
any department or agency designated by the
President for the purposes of this section
shall provide such assistance as may be de-
termined by the President to be necessary
in order to establish and effectively main-
tain the secrecy of the identity of such indi-
vidual as such an officer, employee or
member.
"(b) Procedures established by the Presi-
dent pursuant to subsection (a) shall be
exempt from any requirement for publica-
tion or disclosure.
"EXTRATERRITORIAL JURISDICTION
"SEC. 604. There is jurisdiction over an of-
fense under section 601 committed outside
the United States if the individual commit-
ting the offense is a citizen of the United
States or an alien lawfully admitted to the
United States for permanent residence (as
defined in section 101(a)(20) of the Immi-
gration and Nationality Act).
"PROVIDING INFORMATION TO CONGRESS
"SEC. 605. Nothing in this title may be
construed as authority to withhold informa-
tion from the Congress or from a committee
of either House of Congress.
"DEFINITIONS
"SEC. 606. For the purposes of this title:
"(1) The term 'classified information'
means information or material designated
and clearly marked or clearly represented,
pursuant to the provisions of a statute or
Executive order (or a regulation or order
issued pursuant to a statute or Executive
order), as requiring a specific degree of pro-
tection against unauthorized disclosure for
reasons of national security.
"(2) The term 'authorized', when used
with respect to access to classified informa-
tion, means having authority, right, or per-
mission pursuant to the provisions of a stat-
ute, Executive order, directive of the head
of any department or agency engaged in for-
eign intelligence or counterintelligence ac-
tivities, order of any United States court, or
provisions of any rule of the House of Rep-
resentatives or resolution of the Senate
which assigns responsibility within the re-
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March 17, 1982 CONGRESSIONAL RECORD- SENATE 82291
apective House of Congress for the oversight
of intelligence activities.
"(s) The term 'disclose' means to oommu
nicate. provide. impart, transmit. transfer,
convey, publish, or otherwise make availa-
ble.
"(4) The term 'covert agent' means-
"(A) an officer or employee of an intelli-
gence agency or a member of the Armed
Forces assigned to duty with an intelligence
agency y
(I) whose identity as such an officer, em-
ployee, or member is classified information,
and
H) who is serving outside the United
States or has within the last five years
served outside the United States; or
"(B) a 'United States citizen whose InteIIi-
gence relationship to the United States is
classified information, and-
"(I) who resides and acts outside the
United states as an agent of, or informant
or source of operational assistance to, an In-
telligence agency, or
"(II) who is at the time of the disclosure
acting as an agent of, or informant to. the
foreign counterintelligence of foreign coun-
terterrorism components of the Federal
Bureau of Investigation; or
"(C) an individual. other than- a United
States citizen, whose past or present intelli-
gence relationship to the United States is
classified information and who is a present
or former agent of, or.a present or former
informant or source of operational assist-
ance to. an intelligence agency.
"(5) The term 'intelligence agency' means-
the Central Intelligence Agency. a foreign
intelligence component of tht.. Department
of Defense. or the foreign counterintelli-
gene or foreign counterterrorism compo-
nents of the Federal Bureau of Investiga-
tion.
"(6) The term Informant' means any indi-
vidual who furnishes Information to an in-
telligenee agency In the course of a eon&
dential relationship protecting the identify
of such individual frayed public disclosure.
"(7) The terms 'officer' .and 'employee
have the meanings given such terms by sea
tione 2104 and 2108, respectively. of title 5.
United States Code.
NO The term 'Armed Forces' means the
Army. Navy. Air Forge, Marine Corpus and
Coast Guard.
"(9) The term Tatted States'. when used
In a geographic sense. means all areas under
the territorial sovereignty of the United
States and the Trust Territory of the Pacif-
ic Islands.
"(1o) The term 'pattern of activities' re-
quires a series of acts with a common pur-
pose or objective. The main direction of said
pattern. of activities must be to identify and
expose covert agents,"
(b) The table of contents at the beginnin
g
of such Act is amended by adding at the end
thereof the following:
TITLE VI-PROTECTION OF CERTAIN
NATIONAL SECURITY INFORMATION
"Sec. 801. Protection of identities of certain
United States undercover ?' Intellig nce
officers, agents, informants. and sources.
'Sec. 802. Defenses and exceptions.
'Sea 603. Procedures for establishing. cover
for intelligence officers and employees.
"Sec. 604. Extraterritorial jurisdiction.
"Sea 605. Providing information to Con-
greea
"Sec. 608. Definitions.".
Mr. BRADLEY. Mr. 'resident, the
amendment I am offering is a substi-
tute for the Intelligence Identities
Protection Act as amended by Senator
CHATaE.
My amendment is a very simple one.
It strikes a balance between protecting
covert agents on the one hand and
preserving freedom. of. speech and a
free press on the other.
It achieves this balance by retaining
the "reason to believe" test;adopted by
the Chafes amendment and by defin-
ing pattern of activities in the terms
suggested by Senator OoR:ox earlier
in the debate on this bill.
The Bradley substitute is;thus essen-
tially identical to the ' bill .now before
you except that the definition of pat-
tern of activities Is changed to read: .
The teem "pattern of activities" requires a
series of ects with a common ps(pose or ob-
jective. The mein direction of said pattern
of activities must be to identify and expose
covert agents.
As so. many of my colleagues have
eloquently . u fitted, ?Mr. President. this
change makes it cleft that no criminal
sanctions apply to disclosures of iden-
tities unless the primary intent of
such disclosures was to .expose a covert
agent. Thus, where exposure is a more
side effect, as when a journalist is
writing with the purpose of uncover-
ing corruption in government, It would
not make the author criminally liable
under this statute.
Mr.. President, as I have said many
times before, It is imperative that we
protect the men and women who daily
risk their lives for our national secu-
rity. It is also imperative that we do so
without unfeeepsatitiy chilling free
speech and freedom of the press,
This substitute, I believe, serves
both goals. I urge my colleagues to
support it.
I ask for the yeas and nay*.
The FRESIDD G OFFICER. Is
there a sufficient second? There Is a
sufficient second. -
The yeas and nays were ordered.
The PRESMINO OFFICER. The
Senator from Rhode Island Is recog-
nized.
Mr. CHAPEE. Mr. President, In the
course of yesterday's debate on this
Legislation, the junior Senator from
Washington asked that, I consider an
alternative to the amendment which I
had on the floor. I indicated that even
at that late date I would certainly be
willing to review the Senator's propos-
I have studied.the suggestion, and
this, of course, Is the same language
which the Senator from New Jersey is
offering today.
The language states? as the Senator
from New Jersey has pointed out, that
the main direction under the. pattern
of activities must be, the Adelltiilcation
and exposure of oovert.agents.
Mr. President, I point out that this
language has never been considered in
the committees. It Is language which
neither the Department of Justice nor
the Central Intelligence Agency en-
dorges.
The problem with this language is
that it imposes every difficulty on the
prosecution that was originally the
problem with the language as reported
from the Judiciary Committee.
Obviously, in preparing this legisla-
tion, we had two matters to consider.
We had to consider the first amend-
ment rights and, the protection of
those in legitimate. journalism who .
might mention the new of an agent
inadvertently, or the names of several
agents indeed. On the other aide of
the coin, we have the problem of pro-
viding protection for our agents
abroad.
The difficulty with the language of
the Senator from New-Jersey is that it
places an extraordinary burden on the
prosecution.
We already have defenses for the de-
fendant, the so-ca led d= defenses that
we have talked of many times, under
section 001(c). But what is added now
by the Senator from New Jersey is one
more defense which, indeed,' is impos-
sible. or practically impossible, to over-'
come. That is. that the main direction
of the disclosures were the identifica-
tion of the names of agents. The de-
fense obviously is, "Tbst was not my
main direction. My main direction was
to expose the CIA activities across the
world," or, "My main direction was to
discuss the operatlops of the U.S. in-
telligence activities jf Africa. And as
an aside. an inadvertent aside, I claim
I happened to 'list a whole string of
agents' names."
As I stated- yesterday in the debate, the
sources of defense would be that the author
told his wife he was just .tryin to write a
book about Africa *ad tDe . Ceg ntral Intelli-
gence Agency In Afrl*.
However, Mr. President. that is lan-
guage that would, destroy the whole
purpose of section 001(0).
For those reasons, We rejected it yes-
terday. I considered f, because the
Senator asked we to do so and because
I wanted to give every fit of doubt
to some Vpe of accord that we might
reach. But after (ireful consideratidn
that language was rejected. indeed, It
destroys the whole purpose of what we
are Attempting to achieve under
601(c).
I am prepared to yield the floor, Mr.
President. If no one else wishes to
speak. I suggest the absence of a
quorum.
The PRESIDING OFFICER (Mr.
HUMPBasT). The clerk will call the
roll.
The assistant legllative clerk pro-
ceeded to call the roll.
Mr. MOYNIHAN. Mr. President, I
ask ?unarlimous cores ,t that the order
for the quorum all besepeinded.,
The PRESIDING OF ICER. With
out objection. .it I. so eedered.
Mr. MOYNIHAN. lies'. President, I
rise briefly to comment on the vote
taken earlier today on the amendment
of the distinguished Senator from
Rhode Island which. of course, passed.
It was not a close ?rote. There were 55
votes in favor. 59 votes agairhst. I
cannot fail to note that what was
originally neither a partisan matter
nor one in which the administration
took a strong stand obviously ended as
such, for the Vice President was in the
chair prepared to cast his vote were
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CONGRESSIONAL RECORD - SENATE March 17, 1982
the Senate evenly divided and he, of
course, would do that in response to
the request of the President. We are
always happy to see him here and wel-
come him on any occasion, but we
know that his presence signifies an oc-
casion when the outcome of a measure
is expected to be close, and the admin-
istration feels strongly enough to wish
to decide it, if possible.
Mr. President, I regret that, because
it was clearly understood indeed, it
was my understanding as vice chair-
man of the Select Committee on Intel-
ligence, that the intelligence commu-
nity wanted legislation but was pre-
pared to have passed either the ver-
sion of the distinguished Senator from
Rhode Island or the version of the dis-
tinguished Senator from Delaware.
I wish to simply restate a thought I
offered.to the Senate yesterday, which
is that we have embarked on a most
unusual and, on the edge, alarming
course. We are choosing to criminalize
the publication in the press of infor-
mation publicly available. If it became
necessary to do this, we should have
set the narrower of the grounds availa-
ble to us and not the broader.
I speak. Mr. President, to a matter
about which I can claim some knowl-
edge and some feeling. I believe it is
the case that I am the only Member of
the Senate at this time who has served
as an ambassador overseas in situa-
tions where there were members of
the intelligence community in the Em-
bassy in which I worked and in embas-
sies in other parts of the world.
I would like, if, I could interject, to
make the point that I have also served
as the U.S. permanent representative
at the United Nations. There are no
intelligence community personnel at
the United Nations. We keep our com-
mitment to the U.N. charter under ar-
ticle 100 In that regard. But overseas,
as is well known, we have intelligence
activities as do all nations, and in, the
case of India where I served, our intel-
ligence activities were known to the
Government of India.
The point I wish to make, Mr. Presi-
dent, is that owing to a long practice
in our Government well known-I do
not disclose a thing that is not fully in
the public domain-we have failed to
provide any but nominal cover as it is
called for American intelligence opera-
tives. Not that some do not have deep
cover, as it is called, but those who
work in American embassies might as
well all be Alabamans or Georgians
with a deep accent or Texans with
high-heeled boots or Rhode Islanders
with their wonderful accents, so con-
spicuous in evidence and well known
are they.
And it is almost beyond the capaci-
ties of an American journalist in a for-
eign capital not to know the names of
the intelligence community operatives.
Nor is there any great reason they
should not. I mean the better part by
far of their activities is making semi-
informed gusses about what the ef-
fects of the drought in Gujarat will.be
on the wheat crop there and the con-
sequences for imports or exports, or
what you will. I mean they are in the
business of reporting matters of eco-
nomic, political, and military Intelli-
gence. That is why they then watch
parades on national days and look at
the newest Soviet missiles as they
rumble across Red Square.
I make this point, Mr. President,
only to make it clear that we are
making, we are on the edge of making,
a crime out of the publication of infor-
mation which is commonly available,
information which is not difficult to
obtain.
Now if we are going to make it a
crime to publish such matters in the
press, and the administration is so
anxious to do so, do they realize that
they have put in jeopardy a whole pro-
fession that might wish to report such
matters as ongoing quasi-public activi-
ties of their Government?
Is the administration going to take,
for example, any comparable measures
to make these covert agents sufficient-
ly so, so as to establish some real
reason to be surprised that anyone
knows their names?
I do not think so. I think we are er-
rantly and somewhat arrogantly cross-
ing a constitutional boundary. We are
trivializing some of the most revered
and protected and depended on consti-
tutional protections that we have
known in our country, the first amend-
ment to our Constitution, not a recent
one, not one that somehow came along
at the time of the income tax measure.
I happen to believe that the amend-
ment we adopted this afternoon is un-
constitutional. I would not firmly
assert that the alternative which was
proposed to us by the Committee on
the Judiciary was on the securest of
constitutional grounds, but an argu-
ment certainly could be made that it is
in the same basic form and structure
every third afternoon. Most events are
too mundane or too familiar to be
called ominous.
I make not just a constitutional
point, but I want to raise the further
fact, as I see it, that we are dealing
here with the decision to criminalize
the publication of information which,
in so many cases, is for every practical
purpose public. We are going to-I
repeat-make criminal the publication
of information which in many, many,
many instances, in more instances
than not, is public already.
Might I ask of anyone who wishes to
respond, have we not made the deci-
sion to put out intelligence community
in large buildings with names, of them
and with signs pointing to them? If
anyone were to park his car opposite
the entrance to the CIA's headquar-
ters in McLean, Va., and just take note
of who comes and goes and were to
draw the not unreasonable assumption
that those who come at 9 in the morn-
ing and leave at 6 in the evening work
there, how is that not to be known?
There are, as some of you may know,
persons who are not friends of our
Government, although unhappily citi-
zens of our country. who have pub-
lished a simple guide on how to tell
the intelligence agents in an embassy.
It is sort of a guide to spring wild-
flowers. It shows the various charac-
teristics of the stamens and the petals
and the various characteristic struc-
tures that will tell you that is a prim-
rose-or if you wish to use a more
threatening comparison, a guide to
mushrooms in the forest; a guide that
gives you the distinguishing character-
istics of those you can and those you
cannot safely eat. This is easily done.
I can report that one Sunday morn-
ing when I was serving in New Delhi, a
colleague and I sat down over coffee
one Sunday morning, and, pretending
which espionage acts have taken in. not to know. went through the diplo-
the past and they have survived a matic list we had submitted to the
court test, as they must. The court, in
the Agee passport case, said the Gov-
ernment has a right to protect itself in
these matters, and its actions would
not fail a constitutional test. We have
learned that this past year.
Even so, I would like to say today
that I believe we have passed an un-
constitutional amendment and, just as
important, it is not just a "modest"
violation of first amendment rights as
a Member of this body has said and,
nor, as he said, is it "consistent with
overriding national security interests".
because there are-no such interests
which would not be protected by the
version offered by the Judiciary Com-
mittee. And so, a Member of this body
has said this amendment may well in-
trude upon the Constitution, but only
a little bit, as in the famous condition
of being a little bit pregnant. This
cannot be but a mournful and ominous
event.
I do not wish to think of myself as
someone who stands in this Chamber
bringing forth ominous events on
Government of India.
Then we went through the biogra-
phies as they are published in the so-
called "Stud" book of the Department
of State, looked at the work histories,
and followed the directions for how to
identify the intelligence agents. It ob-
viously was not a rigorously scientific
test, but we suspended our own knowl-
edge as much as we could, and we said,
"Sure, this person fits the following
five categories; the probability is that
he would be, she would be," and
indeed they were.
I do not know that this is that well
known in this Chamber. I hope it will
be better understood, as we are not
finished with this debate. It may be it
is going to be one of those debates
that goes on for a very long time.
Mr. President, I repeat two points:
The amendment we approved is, in my
view, unconstitutional. My view can
have no greater weight than anyone
else's in this Chamber, and less than
jurists' and prosecutors'. But as a
former Ambassador, I would like to
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S 2294 CONGRESSIONAL RECORD - SENATE March 17, 198.2
The PRESIDING OFFICER. Is ministration announced its plans to and the Congress, as well as the
there objection? Without objection, it prohibit the import of Libyan oil to American people. I think it would be
is so ordered. the United States and to deny licenses timely on the occasion of this legisla-
UP saM.nx:sr NO. ass for the export of selected American oil tion to put this body on record in sup-
Mr. HART. Mr. President, I send an and gas technology to Libya. port of the President's action.
amendment to the desk and ask for its This measure is long overdue, but it e,u~ ?-n ,, .. .. .. .. . ..... ~~_ ___
The PRESIDING OFFICER. The support of the Congress. Therefore, ? Mr. KENNEDY. Mr. President, I am
amendment will be stated. Mr. President, I am offering a resolu- pleased to join Senator HART and my
The assistant legislative clerk read tion, as an amendment to the agent other colleagues in sponsoring this res-
as follows: identities bill, to express the Senate's olution in support of the President's
The Senator from Colorado (Mr. Hart), support, for a ban on American im- decision to prohibit imports of Libyan
for himself, Mr. Kennedy, Mr. Quayle, ii;.. ports of Libyan oil. oil into the United States. Senator
Mitchell, Mr. DeConcini, Mr. Sasser, Mr. For years, the United States has sup- HART and I have called for this action
Leahy. Mr. Exon, Mr. Robert C. Byrd. Mr. ported Quaddafi's terrorism in north for over 6 months. I welcome at long
Sarbanes, Mr. Weicker, Mr. Heflin, and Mr. Africa and the Middle East by paying last the President's decision to imple-
Heinz, proposes an unprinted amendment billions of dollars for Libyan oil sup- ment our proposals.
numbered 829. plies. When we bought Libyan oil, we Libya has continued to work against
Mr. HART. Mr. President, I ask replenished Quaddafi's treasuries, al- the interests of the United States in
unanimous consent that further read- lowing the man whom the late Anwar the Middle East. It is in the forefront
in of the amendment be dispensed Sadat called a certified luhatic to of those Arab rejectionist states that
with. embark in more adventurism in the call for the total destruction of the
The PRESIDING OFFICER. With- most volatile region of the world. State of Israel. It continues to call for
out objection, it is so ordered. This unconscionable practice now joint Arab action and sanctions
The amendment is as follows: has ended, by virtue of the President's against Egypt because of its decision
AM NDMENT decision-last week. The United States to join the search for a true and last-
At the end of the bill, add the following: has demonstrated it will not stand by Ing peace the Middle East. Most re+
Because, the Congress finds it is in the in. passively and allow Qadhafi to sow cently, Colonel Qadhafi launched a vi-
terest of the national security of the United violence and terror with impunity. cious verbal attack against Saudi
S
tates to combat international terrorism, Moreover, we have ended the hypo- Arabia because of that country's rela-
and
Because, the present regime in Libya is critical and expedient policies which tionship with the United States.
aiding and ahettire internaimea terror lead us to sell arms to African coun-
and ism' tries threatened by Libya while refus- Libya continues its support for iGev-
Because, Libya is able to threaten its ing to take punitive actions against nationat oterrorismf .providesOpenly ythe Gov-
neighbors
neighbors and international order because. Qadhaft by cutting off an important lomat c support Libyjor dip-
of
the revenues it derives from its oil trade, source of Libyan income: American pe- ance to PLO. military assist-
trodollars. ance to the PL. It has covert ties
Because, the President of the United Boycotting Libyan oil at this time with st numerous
organ other international
States` after consultation with Congress and should have no appreciable effect on terrorist izations.
discussions with appropriate foreign govern- the supply or price of oil used in the As I have said repeatedly since last
ments has decided to prohibit imports of United States. Libyan oil constitutes fall, It is immoral for the United
Libyan oil into the United Mates, and to only 2 percent of American oil imports
States to provide Libya with the
deny licenses for the export to L 1Abyibya of U.S. . --_- .- ,_ _-- -- ~ -_
outside the MS , - _- "American homes should not be fueled
Therefore, it is declared the sense of the ment of Energy, American imports of by oil tainted with the blood of Libyan
Senate that Congress strongly supports the Libyan oil in December 1981 were only terrorism. Banning the importation of
122,00 barrels per day. With the-cur-
President's decision to prohibit imports of ___-__---__ r.tf,-ft? nil at thi
++.. ,,,
s
deny licenses for the export to Libya of U.S. American importers can replace of oil used in the United States.
origin oil and gas technology and equipment Libyan on with supplies from other
Libyan n oil now constitutes only 2 per-
outside is not readily available from sources foreign sources, including West Afri- Libyan off now
outside the U.S. can producers offering a sweet, light cent of total American oil imports and
Mr. HART. Mr. President, I wonder crude comparable in quality of Libyan other sources of sweet, light crude
if I might ask the distinguished Sena- oil. comparable to Libyan oil are available
tor from Rhode Island, the floor man- To be-serious about combating inter- from other foreign sources including
ager, what the proper procedure might national terrorism, the United States countries in West Africa.
be for obtaining a rollcall vote on this must cut off the flow of American pe- I hope this most recent action by the
amendment at the proper time, which trodollars to Libya. My resolution administration will be a loud and clear
I understand will be sometime tomor- simply tells the President that the signal to Libya and to any other gov-
row, if that is permissible, and stacked Congress recognizes how American oil ernment that supports international
with other pending votes. dollars have supported Qadhafi's ter- terrorism that the United States will
Mr. CHAFEE. I was not clear wheth- rorism and that the Congress supports not condone state supported terror-
er the Senator wished a rollcall vote or the administration's decision to end Ism-0
not. this intolerable practice. Mr. HART. Mr. President, I have no
Mr. HART. Yes, I would like that, Mr. President, as the principal spon- further statement to make. I yield to
but I did not know what the proper sor of three measures last fall, starting the Senator from Rhode Island on
procedure was for obtaining that. in September 1981, to bring this policy procedure.
Mr. CHAFEE. I wonder if the Sena- about, I most personally and whole- Mr. CHAFEE. I believe I can be
tor would accept a brief delay here, or heartedly endorse and welcome the helpful. First, as I understood the Sen-
proceed and let me get back to him on President's decision. I would have pre- ator when he offered this, it was a res-
that. ferred that it had come earlier in rec- olution which I thought stood by
Mr. HART. I will proceed with my ognition of the facts that this state- itself, but, as I understand, the Sena-
statement. If the Senator from Rhode ment has just outlined, concerning tor wishes to attach it to the measure
Island would assist me in this matter, I which those amendments and resolu- we are considering.
would be most appreciative. tions were proposed some months ago. Mr. HART. Yes, Mr. President. It
Mr. CHAFES. I will do that. Nevertheless, the action has been would be an amendment in the nature
Mr. HART. Mr. President, last taken and I think it deserves the of a sense of the Senate resolution, an
Wednesday, March 10, 1982, the ad- wholehearted support of the Senate amendment to the present bill.
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CONGRESSIONAL RECORD - SENATE March 17, 1982
he Federal Deposit Insurance Corp.
f\nd the Federal Savings and Loan In-
s ce Corp. The cosponsorship of
s
re
lut
by
ate Concurrent Resolution 72, cor-
)onding to House Concurrent Reso-
pn 290, scheduled to be agreed to
Le House tomorrow, will insure
he intent of the concurrent reso-
kis carried out. That intent is to
e the American people, large
that'
lutioi
reass
and
money
It has
those ins
in the f
deposits
I depositors alike, that their
safe in our financial system.
lved in policy and planning
ancial system that insured
pould be covered by the
and ultimately the U.S.
Treasury ifBut recent
about the
U.S. savings
of 2 years
news, have
reports in the news media
roubles encountered by
d loans, coming on top
f worsening economic
aced a level of anxiety
This anxiety,
checked, could
fears that en
withdraw their
ing even more d
ile economy, lea
ble for critically
and business exp
from depository
lic about the safety of
ounts.
Wallowed to grow un-
ead to the kind of
urage depositors to
ds-thereby creat-
ations in our frag-
less capital availa-
~ded development
ion. If the drain
titutions acceler-
degree, it would
also cost U.S. taxpa;
tributions to the ins,
the Treasury.
In an effort to hi
in direct con-
ce funds from
before it gained any
among the American
with 16 of my colles
Senate Concurrent R
resolution provides the
antes as the House and
ing Committee versions
eration. I am pleased to
colleagues from the Ban
ore credence
blic, I. along
es submitted
lution 70 on
It concurrent
assur-
nate Bank-
der consid-
with my
Commit,-
tee in cosponsoring Senate
Resolution 72 in a show of
on this vital issue, and I
oncurret
y
uld also
note the indorsement of thi
sors of Senate Concurrent R
70 of the Banking Commitl
sion.
cosbon-
lution
:' ver-
It is my hope and belief at the
concurrent resolutions to be a eed to
by the House and Senate week
will have the necessary effect calm-
ing any fears among the'public card-
ing the safety of their money the
Nation's depository institutions. And I
would again compliment
Chairman GARN on the speed and
thoroughness of his leadershi in
bringing this concurrent resol ion
before the Senate.
Mr. President, I ask unanimous n-
sent that the Senator from Kentu y
(Mr. FORD )'be listed as a cosponsor f
Senate Concurrent Resolution 70.
The PRESIDING OFFICER. With
out objection, it is so ordered.
Mr. GAIRN. Mr. President, I furt her
state that I particularly appreciate the
support of Senator HEINz from the
Banking Committee who was very
th concurrent resolution ready to go
tot Senate floor.
Mr. Resident, I suggest the absence
The IDING OFFICER. The
clerk will he roll.
The legislat clerk proceeded to
Mr. SYMMS. !bft President, I ask
unanimous consent t t the order for
out objection, it is so ordere
INTELLIGENCE IDENTITIES
PROTECTION ACT OF 1981
The Senate continued with the con-
sideration of the bill (S. 391).
REAFFIRMATION OF U.S. POLICY TOWARD CUBA
Mr. SYMMS. Mr. President, it was
my intention to offer an amendment
to this legislation which deals with the
critically dangerous situation we have
developing in the Caribbean. After
careful consideration of the impor-
tance of the Intelligence Identities
Protection Bill, S. 391, I have decided
not to offer my amendment today on
this legislation. I have deferred offer-
ing my amendment because I do feel
that this is a very, very important
piece of legislation that is long over-
due; that is certainly needed by the in-
telligence community in the United
States.
I would like to announce to the
Senate, however, that it is my strong
intention to seek a vote within the
next couple of weeks on the floor of
the Senate on the amendment that I
was planning to attach to the agent
identities bill. I will, just for the infor-
mation of the Senate, point out that
this resolution that I introduced, Joint
Resolution 158, on March 4, 1982, has
14 cosponsors, including the majority
leader of the Senate. The other 13 co-
sponsors are as follows: Senators
HELMS, DENTON, EAST, MATTINOLY, HA-
YAKAWA, GOLDWATER, WARMM, TIMR.
MOND, McCI.Dats, KAsTEN, TowER,
GARS, and myself.
The original Joint Resolution 230
passed the House and the Senate with
overwhelming bipartisan majorities in
September of 1962. I will be offering it
either in the form of an amendment
on pending legislation that will come
before this body in the near future or
as a standing up or down resolution if
an agreement can be reached between
the majority and the minority to bring
it before the Senate soon for a vote.
`!'here are several important aspects
of this amendment. First, and most
significantly, it reaffirms the law of
the land on American policy toward
Cuba, as embodied in the Senate Joint
Resolution 230 passed overwhelmingly
by bipartisan majorities of both
Houses in September 1962. It is Public
Law 87-773 (76 Stat. 697). Second, the
amendment reaffirms the Monroe
Doctrine first announced in 1823, and
the Rio Treaty of 1947. Third, the
amendment has several policy thrusts:
It expresses the determination of
the United States to prevent, by force
if necessary, the Soviet-backed Com-
munist regime in Cuba from engaging
in aggressive or subversive activities in
any part of the Western Hemisphere;
It expresses American determination
to prevent the Soviets from establish-
ing a military base in Cuba;
It states American support for the
freedom and self-determination of the
Cuban people.
The amendment is fully consistent
with and supportive of President Rea-
gan's Caribbean policy announced on
February 24, 1982.
Mr. President, I would like to take
this opportunity to make some com-
ments on my amendments before we
vote on S. 391. It was highly appropri-
ate and germane that I was consider-
ing offering an amendment to the Na-
tional Security Act of 1947, as will be
seen.
First, Mr. President, I would like to
reiterate the most significant Soviet
activities going on now in Cuba. Gen-
eral Jones, our current Chairman of
the Joint Chiefs of Staff, has joined
me and Representative JACK KESar, of
New York, in accusing the Soviets of
clear-cut violations of the Kennedy-
Khruschchev agreement of 1962. The
Soviet acts which violate the agree-
ment according to numerous press re-
ports over the' years, are as follows:
The Soviet strategic submarine base
built at Cienfuegos, complete with a
nuclear warhead handling facility.
The visits of Soviet Golf and Echo
class submarines to Cienfuegos, carry-
ing strategic nuclear warhead-
equipped, long-range missiles.
The Soviet TU-95 Bear heavy bomb-
ers, capable of carrying nuclear bombs
or nuclear air-to-surface missiles,
which regularly fly to Cuba.
The 66,000 tons of Soviet military
equipment shipped to Cuba during
1981, three times more than in 1962.
The nuclear-missile-equipped Soviet
naval task force tours of the Caribbe-
an in 1981, threatening vital oil fields.
The 40 nuclear delivery capable Mig-
23/27 fighter-bombers in Cuba.
The Soviet combat bridage in Cuba.
Mr. President, it is important to
have available the Kennedy-Khrush-
chev agreement of 1962, not only for
our colleagues but also for the public.
Accordingly, I have made the full de-
classified text of the Kennedy-
Khrushchev agreement available.
Even a cursory comparison of the
Kennedy-Khrushchev agreement and
the Soviet actions reported in the
press, that I have noted, shows how
flagrantly that agreement is being vio-
lated.
I would add, Mr. President, that our
President now faces a very difficult
problem. What faces the Commander-
in-Chief, is the fact that- in the soft
underbelly of the United States, the
Caribbean basin, Fidel Castro has
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CONGRESSIONAL RECORD - SENATE March 17, 1982
FLEXITIME
Mr. STEVENS. Mr. President, I have
a bill that I would like to introduce
and have it held at the desk for the
purpose of considering it tomorrow
following the action on the agent iden-
tities bill and on the Libyan oil resolu-
tion. It is my understanding that it
would require unanimous consent to
have this bill taken up. Incidentally, it
is a bill that would be cosponsored by
the distinguished Senator in the chair
at the present time.
The PRESIDING OFFICER. For
the record, that is the Senator from
Virginia.
Mr. STEVENS. The Chair is correct.
Mr. FORD. Which Senator from Vir-
ginia is that?
Mr. STEVENS. The Senator from
Virginia (Mr. WARNER).
We have worked on this bill and are
prepared to offer it to try to deal with
the problem that the flexitime and
compressed schedule authorization in
Public Law 95-390 expires on March
28. It has been a long, hard road to get
to this point where we do have a bill
which I believe I can state has no op-
position, so far as the bill itself is con-
cerned, although not everyone is en-
tirely happy with it.
The Senator from Colorado is here
and he has indicated in discussion a
time agreement to take this bill up. I
am prepared to ask for a time agree-
ment to take this up following the
consideration of the Libyan resolution
tomorrow, with a 1-hour time frame
for its consideration to be equally di-
vided in the usual form.
Let me inquire of my friend from
Colorado. Would he have an amend-
ment to be covered by such a time
agreement also?
Mr. ARMSTRONG. Mr. President, if
the Senator will yield, before respond-
ing directly to his question I would
like to compliment the Senator from
Alaska for so skillfully bringing this
matter to a conclusion, or at least to a
near conclusion.
The notion of flexitime which has
been tested during the last 3 years by
Federal employees has proven to be, in
many instances, a very popular and
worthwhile program. Flexitime is not
for everybody, it is not for every
agency, it is not the kind of thing that
is applicable in every circumstance.
But the general response of places
where it has been tried, including in
my own State of Colorado, indicates
that it has been a successful experi-
ence.
Nonetheless, there was some opposi-
tion to the idea of simply extending
the flexitime concept and, as I under-
stand it, and the Senator can correct
.me if I am mistaken, it is my under-
standing that it will expire in a few
days unless further action has been
taken.
I am aware that behind the scenes
the Senator from Alaska has very
skillfully brought together different
interests and people who have con.
cerns about this legislation, and has
put together a package which is broad-
ly acceptable not only within this
Chamber but which is believed to be
acceptable in the other body and in
the White House and, for that matter,
which will serve the needs of employ-
ees and the general public. So I con-
gratulate him for that.
I am somewhat in doubt, however,
about the need for a time agreement. I
do have some amendments to offer,
and I understand there may be some
other Senators, at least one, who wish
to offer amendments. But I can assure
the Senator from Alaska that there is
no intent on my part, nor so far as I
know the intention of any other Sena-
tor, to delay the passage of this bill, to
bring in extraneous issues, or in any
way to slow down the consideration of
this matter, which is very timely and
very worthy of consideration.
I would suggest that when the
proper moment arrives I would en-
courage the Senator simply to ask
unanimous consent to proceed to the
consideration of the bill in the normal
course. Certainly, the Senator from
Colorado will offer no objection, if
that, is the case.
Mr. STEVENS. I might say to my
friend that it is my understanding
that in order to make this bill the sub-
ject of consideration by the Senate it
would take unanimous consent.
Mr. ARMSTRONG. I will not object,
I say to the Senator.
Mr. STEVENS. It is my understand-
ing, however, that there will be an ob-
jection from the distinguished acting
minority leader on behalf of at least
one other Senator-and now I am in-
formed several Senators-
Mr. ARMSTRONG. Would the Sen-
ator yield to allow me to inquire what
is the objection? Perhaps they know
something about this legislation that I
do not know. My impression is that
this is worthy legislation and that
there is general agreement that the
flexitime matter has been successful.
Why would Senators object?
Mr. STEVENS. Mr. President, it is
my understanding that there would be
an objection if an attempt was made
to offer an amendment which dealt
with flexitime or compressed sched-
ules contrary to the Walsh-Healy Act,
and that that was the nature of the
amendment the Senator from Colora-
do intended to offer.
. Mr. ARMSTRONG. Mr. President, if
the Senator will yield further, I would
like to make two observations in re-
sponse to that.
First, the whole idea of requiring as
a condition of preclearance of legisla-
tion that Senators forefeit their right
to offer amendments on any subject
just does not go down well with me. I
am one of those who thinks we are
here to legislate, and I am a legislator.
I am here to consider legislation and,
where I think it is appropriate, to
offer amendments.
I would be hopeful that it is not the
intention of the distingushed acting
minority leader to tell us that amend-
ments will simply be ruled out, that
for some reason we cannot even get
consent to take up bills if Senators do
not agree in advance to forfeit their
right to offer amendments. I am sure
that is not his intention.
Mr. FORD. Will the Senator yield?
Mr. ARMSTRONG. Yes. -
Mr. FORD. Mr. President, I am not
objecting to the Senator's right, I am
objecting to a time certain, as he is ob-
jecting. I have a right to object, as he
does. I am not objecting to keep the
Senator from offering amendments. I
am going to object to the bill, for any
time certain for any amendments. I
am not sure that it has gone the route
of the committee. I am not sure that
the Senator's amendment is germane.
I am just here trying to protect the
rights of other Senators, as well as I
am trying to protect his right.
I do not want to be placed in the
posture of trying to preclude the Sena-
tor's offering an amendment. I say to
the Senator from Colorado that he
gave eloquent words to the ability of
the Senator from Alaska and I agree
with those. What they have put to-
gether is obviously reasonably accept-
able on our side and probably, if we
could just take the bill and move with
that, without any other amendments,
in the view of this Senator, it could
probably fly tonight. Otherwise, there
will be inaction on this side.
Mr. STEVENS. Mr. President, may I
say that the amendment of the Sena-
tor from Colorado is not within the ju-
risdiction of the subcommittee that I
chair. Therefore, it could not have
been considered by our committee as it
was brought to the floor. I am sure the
Senator from Colorado realized that.
It is entirely within his province and
within his right to offer such an
amendment on the floor but it does
give us the added problem of securing
clearance for a unanimous-consent re-
quest to set aside the business that is
already ordered by the Senate in order
to consider this.
As I have stated, it is my under-
standing that it is on that basis that
the Senator from Kentucky has been
asked by Senators to object if there is
an attempt to take up the bill, on the
basis that amendments that would not
be within the jurisdiction of our sub-
committee would be considered in con-
nection with a limited timeframe for
consideration of this bill on an emer-
gency basis.
Mr. ARMSTRONG. Mr. President, if
the Senator will yield, I think there is
perhaps a misunderstanding, because
that is not what the distinguished
acting Democratic leader has said. On
the contrary, he has said that he
would not object, if I have understood
him correctly, to a unanimous-consent
request to proceed to consideration of
the bill; that only if the request incor-
porated a limitation on time for
debate of any amendments that the
Senator from Colorado or others
might offer would he object. So, at
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