INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200060014-5
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• Document Page Count: 31
• Document Creation Date: December 21, 2016
• Document Release Date: January 12, 2009
• Sequence Number: 14
• Publication Date: March 1, 1982
• Content Type: OPEN SOURCE

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S 1230 CONGRESSIONAL RECORD - SENATE March 1, 1982
the enormous potential for error and dren's children to rage rage against cords, a right denied to Lev and Nadya
miscalculation. The SALT process has the dying of the light. Ovsischer and to so many others like
been worth the effort. For example, I do not have any ready answers. them.
through SALT both sides have avoided Certainly, our strategic negotiations Mr. BAKER. Mr. President, I sug-
the general deployment of antiballistic need to be invigorated. in addition, we gest the absence of a quorum.
missile systems. But the fact of the need to begin talking about this prob- The ACTING PRESIDENT pro tem-
matter is that during the last 12 years, lem. We need to confront it, to face up pore. The clerk will can the roll.
the strategic forces of the two super- to it. The extinction of the world, The legislative clerk proceeded to
powers have continued to grow in both whether it be merely a remote possi- call the roll.
quality and quantity. If present trends bility or a near certainty, is the great- Mr. CHAFEE. Mr. President, I ask
continue-even if both sides continue est moral challenge in the history of unanimous consent that the order for
to abide by the provisions of SALT II humanity. The fact that we avoid talk- the quorum call be rescinded.
unilaterally-the number of warheads ing about it, the fact that we do not The ACTING PRESIDENT pro tem-
deployed will. have almost quadrupled look upon our strategic negotiations pore. Without objection, it is so or-
since the beginning of the SALT proc- with the Soviets as the single most im- dered.
ess 12 years ago. Greater throw portent responsibility of our Govern-
weights and accuracy on both sides ment, the fact that we allow our allies NCLUSIO ORNING
continue to destabilize and erode to spread dangerous nuclear materials BUSINESS
mutual confidence. The risk of pre- around the globe like so much ordi-
emptive action is feared. nary chattel is the mark of a society ?re ACTING PRESIDENT pro tem-
Both sides have increased the devel- that is shirking its most solemn and ;` ornng business is closed.
opment of scenarios based on such ex- important responsibility. We must get
tremely dangerous concepts as "winna- our best minds and our ablest people
ble" and "limited" nuclear wars. In my mobilized to deal with this problem INTELLIGENCE IDENTITIES
view, any thought of "winning" a nu- and we must accept the burden of this PROTECTION ACT OF 1981
clear war is. on its face, insane. One urgent moral commitment for as long The ACTING PRESIDENT pro tem-
cannot read the literature which de- as we have a world in which to live. pore. The Senate will now resume con-
scribes the effects of detonating thou- sideration of S. 891, which the clerk
sands of megatons of nuclear explo- LEV AND NADYA OVSISCHER will state.
sives without concluding that winning The assistant legislative clerk read
or limiting a nuclear exchange is a Mr. PERCY. Mr. President, the as follows:
concept without a basis in fact. Setting plight of Soviet Jews denied the right A bill (S. 391) to amend the National Se-
aside the unacceptable annihilation to emigrate is always on our minds. curity Act of 1947 to proWbit the unauthor-
which would be imposed on comba- We learn the names of these individ- ized disclosure of information identifying
tants, the global effects of nuclear war uals from their relatives and friends certain United States intelligence officers.
would be stunning. Among other and from others concerned about the agents, informants, and sources and to
things, the world would experience al- denial of their rights. I wish to draw direct the President to establish procedures
teration of the climate, destruction of the attention 01 my colleagues today to protect the secrecy of these intelligence
the ozone layer, destruction of the re- to the case of Lev and Nadya Ov- relationships.
maining human gene pool, global epi- sischer. The ACTING PRESIDENT pro tem-
demlcs and damage to fundamental Eleven years have elapsed since Lev pore. The Senator from Alabama is
parts of the food chain. In a full scale Ovsischer and his wife Nadya first ap- recognized.
nuclear holocaust, extinction of man- plied to emigrate to Israel. Since then Mr. DENTON. Mr. President, I
kind and the devastation of Earth as a they have been continually harassed notice that the Senator from Delaware
place where living things can grow is a by the KGB, their telephone has been is here and we have, with his permis-
virtual certainty. disconnected and correspondence has sion, one more statement at this time
Insofar as the uses of "limited" been stopped from reaching their by the Senator from North Carolina
weapons like the neutron bomb or home. Colonel Ovsischer, a highly (Mr. EAST), who is on the floor. I
counterforce missiles are concerned, decorated fighter squadron command- should like to turn the fl ?i0''
war planners assume a kind of disci- er in World War II, has been stripped the Senator from North C ,d .
pline of thought that loses, credibility of his military rank and deprived of The ACTING PRESIDwhen one considers the circumstances his pension. pore. The Senator from No
which would have had to be present in' Lev and Nadya Ovsischer simply na is recognized.
.the first place to result in the use of seek permission to emigrate to Israel Mr. EAST. Thank you, MW such awful weapons. Robert McNa- where they can join their daughter, dent.
mara called the use of tactical weap- live freely and practice their religious I shall be brief this mornirt 21I h
ons in. the defense of Europe "a vast fajith. The Soviet Government claims to take a few minutes to 06. ofi -
unknown." I agree. that Lev Ovsischer possesses military behalf of the amendment the
The 20th century poet Dylan secrets. However, he is 20 years re- tinguished colleague from
Thomas wrote, "Do not go gentle into moved from service in the army and Island (Mr. CHArsx) is offerit*
that good night, rage ?age against the therefore this claim is ludicrous. 391. Before turning to that I
dying of the light." A nuclear hol- Thirty-nine years ago, on March 5, should like publicly to congratulate
ocaust would extinguish the light the Nazi occupiers murdered 5,000 and thank Senator CHmmz for the
throughout the world. We are in Jewish residents of Minsk, the same great leadership he has shown in this
danger of blowing ourselves into obliv- city in which Lev and Nadya Ovsischer whole bill. He has shown great energy
ion. now live. Eleven years ago, also on and great patience over a long period
The Senate is a great deliberative March 5, the Ovsischers applied for of time and we are all indebted to him
body. We debate many moral issues exit visas. Families in six American for that effort.
here on this floor. But dealing with cities and five other countries are I should also like publicly to compli-
the economy or national defense or planning to take special note of the ment Senator DarTox, who chaired
energy is a meaningless exercise if we anniversary this year. In remembering the subcommittee hearings on this
are going to destroy the creation. the genocide of the past, we must also matter, for his excellent leadership.
Some suggest that there is no solu- note that basic human rights are trag- And, of course, we are all indebted to
tion to this problem, because the nu- ically denied by the Soviets at present. Senator THURMoxn, chairman of the
clear genie is out of the bottle. I refuse I urge my colleagues to join me in Committee on the Judiciary, for the
to accept that suggestion. We. must appealing to the Soviet authorities to leadership he has given us in getting
not go gentle into that good night. We observe the right of family reunifica- this measure out of committee and
owe it to our children and our chil- tion guaranteed in the Helsinki ac- now onto the Senate floor.
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March 1, 1982 CONGRESSIONAL RECORD - SENATE
We have many colleagues who have
supported us in this effort, Democrats
and Republicans-it_ is not a partisan
effort- so there are many people who
deserve to be publicly commended for
their effort on behalf of this legisla-
tion. I simply wanted at the moment
to note the great contribution of those
Senators.
Mr. President, there is general agree-
ment that this legislation, S. 391, is
needed to provide protection for CIA
agents-involved, of course, in covert ac-
tivity, not to allow them to be identi-
fied and to impair and impede the for-
eign intelligence activities of the
United States which certainly is perni-
cious and unconstitutional action.
Needless to say, it has jeopardized the
lives of the agents involved I repeat,
there is a general acknowledgment of
the need to do something to protect
these agents and thereby to protect
the best interests of the United States
in the very .difficult kind of world in
which we live. Again, it was the fore-
sight of Senator CHerss which pressed
this matter to final fruition here.
The nub of our problem, Mr. Presi-
dent, is not over whether to have legis-
lation. There is general agreement
that we ought to have it. The nub of
the problem is what kind of language
we ought to use on page 3 of the stat-
ute or, more particularly, title 6, sec-
tion 601(c). That is the focus of this
debate at the moment and "that is the
essence of the so-called Chafee-Jack-
son amendment.
Let me try to explain why I think it is
critical that we follow the lead of Sen-
ator CHerae in this very important
matter. It may seem to those who
have covered this matter casually that
there is not much of a distinction
here, it is not important that we pick
one over the other. I feel very strongly
that Senator CHnrrr and those'sup-
porting him, cosponsoring this bill, are
correct, that there is a fundamental
difference here. We ought to address
ourselves to it and we ought to sup-
port him in this effort to amend S.
891.
The language that is currently in
the measure that Senator CHAP=
seeks to change says:
Whoever. in the course of an. effort to
identify and expose covert agents with the
intent to impair or impede the foreign intel-
ligence activities of the United States by the
fact of such identification and exposure, din.
closes to any individual not authorized to re-
ceive classified information, any informa-
tion that identifies an individual as a covert
agent, knowing that the informatiop dis-
closed so identifies such individual and that
lieu of "with intent, to impair or
impeded the foreign intelligence activi-
ties of the United States," It would
read. "Whoever. In the course of the
pattern of activities intended to identi-
fy and expose covert agents and with
reasons to believe that such activities
would impair or impede the foreign ac-
tivities of the United States," and so
forth.
The critical language here is wheth-
er you have the "intent to impair or
impede" language or the language
that reads "with reason to believe."
Why make the distinction? Is it fun-
damental? Is it important?.I submit it
is. Why?
Mr. President, I feel we run the risk
of aborting the effectiveness of this
legislation if we do not make the
standard the reason-to-believe stand-
ard Why so? If you put in the intent
standard, very likely this is the scenar-_ cious practice of the Philip Agees and
io you will get in a criminal prosecu- others of taking the names of covert
tion under this legislation: agents, revealing them to the public,
The defendant will contend, among and then watching these people shot
other things, that his intent in reveal- down or shot at or harmed, and not
ing the name of an agent-in meeting only killing these very dedicated
all the other requirements under the Americafis but also Jeopardizing the
act for criminal prosecution and con- national security interests of the
viction-he will very likely contend United States.
through innovative lawyers, of which I repeat: It is conceded across the
there are many in this country in political spectrum here, across party
terms of defense attorneys, that his lines, that there is a genuine need.
Intent was not to impair or to impede The problem is that if you adopt the
the foreign intelligence activities of language that is currently in the bill
the United States but was in fact de- before the Senate and do not accept
signed to assist, aid or abet ft by re- the Chafes amendment, there is a very
vealing the incompetence of an agent. strong rink that the bill will be ren-
for example, or by revealing that he dered, as I have said, ineffectual. You
was engaged in certain kinds of pro- will fall short. It will be s sense of
tires that, according to the informant, false security. We will think we have
her should not have been. provided protection for these gentle-
Then you farce the court, the jury, men and for the national security In.
and the judge to get into this very dif- tercets of the United States, but in
ficult area of determining what the fact we will not have done that.
subjective state of mind; what was the I submit, Mr. President, that we
intenwould be a great tragedy to let ought to err on the side of protecting
these gentlemen
this legislation be passed. meeting a and protecting the
need we all agree needs to be met, and mental national aycwety interests. ts. A opting
then have it fail In the courts of this the language e of f that the ais Chafee adopting
then of confusion of language. The
intent standard will cause that kind of went.
confusion. So, I implore my colleagues-I prom-
If you have the reason-to-believe ised to keep this brief-to support Sen-
standard, it is a reasonable man's ator CHerrr on this matter. I often
standard. It is a good standard. It is a feel, in trying to evaluate the worth of
standard that has been used previous- a measure, that you consider the gen-
ly in legislation. It ft a standard that tleman who has been actively support-
has been upheld by the U.S. Supreme ing this entire measure all along-
Court. There is not any question as to again, Senator Cnsm.
its constitutionality; and if there is, we Senator Cwan has a great personal
can always argue this up one side of and professional background in this
the road and down the other, as re- area, formerly having served with
gards whether I think ..it is conotitu- great distinction as Secretary of the
the United States is takblg affirmative - tional or someone else does not.
measures to conceal such individual's ciassl- Ultimately, of course, the courts will
fled intelligence relationship to the United
States, shall be fined not more than $15,000
or imprisoned not more than three years, or
both.
The critical language here in ques-
tion is "with the intent to impair or
impede the foreign intelligence activi-
ties of the United States."
The change that would come about
by the Chafee amendment is that, in
determine it. But based upon what the
courts have done already in this area
and based upon the previous legisla-
tive record, this is solid language. it is
good language. It is constitutional lan-
guage. What it will do is allow the
court, the jury, and the judge to look
at all the circumstances and to deter-
mine it a reasonable man would con-
clude that- in doing what this inform-
S 1231
ant did. the purpose was, again, to
impair or impede the foreign intelli-
gence activities of the United States.
There Is a minimal risk, then, that
this important legislation will be ren-
dered ineffectual in the courts. That is
the essence of this debate over the
nature of the language that we ought
to be including here.
. So, I strongly urge my colleagues. to
support the amendment of Senator
CHnras, Senator JACKSON, and others
who have cosponsored it. It is soundly
conceived. It deals with a genuine
weakness in the current legislation.
Let me try to simplify it and make it
as concise as I can. as I understand the
problem.
First, as I have indicated, there is a
genuine need. in terms of national se-
curity, to stop this insidious, perni-
Navy. He understands the importance
of gathering foreign intelligence. He
understands in a firsthand way the
role of the CIA In foreign intelligence
activities.
Second, he has served with great dis-
tinction in the U.S. Senate. I do not
think Senator CHArra needs to yield to
anyone in his great concern about the
status of civil rights in this country.
No one is attempting to deny the civil
rights of anyone in terms of freedom
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S 1232
CONGRESSIONAL RECORD SENATE March 1, 1982
of speech or press. As I believe Justice
Jackson said one time,
The first amendment is not a suicide pact;
it means we can take reasonable measures
to serve important national interests.
There is no national interest of
greater importance than national se-
curity. Whatever intrusion there may
be upon first amendment rights here,
they are modest and gentle and con-
sistent with the overriding need to
protect the great national security in-
terests.
Because of my great confidence in
Senator CHAS-EE, I was eager, early on,
to support this particular amendment.
He, of course, has attracted to his
cause, which he invariably does, distin-
guished bipartisan support, Senator
JACKSON of course, being a key figure
in this, as well as many others.
As I have said, it is not a partisan
issue. It is not an idealogical issue. It is
a fundamental question of the legiti-
mate need of national security.
So, I urge my colleagues to support
it because, again, of the great integrity
of Senator CHAFEE, who is behind it,
and his great expertise in this area.
I also point out to my colleagues
that the House of Representatives has
already passed a measure that has the
Chafee language in it. If we proceed
and accept it now through his amend-
ment, we will have a bill precisely like
the House bill. We will not have to go
to conference. The President has al-
ready indicated that he would sign
this measure. He is very enthusiastic
for it.
If we will accept the Chafee amend-
ment, we can get this act through. The
House has already passed it. We can
then get on with the very important
task of providing protection for our
CIA agents, our foreign intelligence
apparatus, and thereby contributing
immeasurably to the national security
interests of the United States.
In conclusion, Mr. President, in addi-
tion to the distinguished gentlemen I
have already referred to who are sup-
porting this measure, I offer this long
list of those who are supporting the
Chafee language: the current adminis-
tration, the current Justice Depart-
ment, the CIA, the FBI, the House of
Representatives, former President
Carter, and the Carter administration.
Again, there is broad and deep biparti-
san support for the Chafee amend-
ment. I urge my colleagues to serious-
ly consider it, and I do implore them
to accept it.
I have no further remarks, Mr.
President.
Mr. BIDEN. Mr. President, I should
like to know if the Senator from
North Carolina would yield for a
couple of questions.
Mr. EAST. Mr. President, I will be
happy to yield to the Senator.
The PRESIDING OFFICER (Mr.
BoscHwrTZ). The Senator from Dela-
ware.
Mr. BIDEN. The Senator makes a
very reasoned argument for his posi-
tion, and I compliment him for that.
Throughout his brief discussion of the
issue today, he used the assertion that
there is a strong risk that the bill
would fall short of its stated purpose;
that is, to get those folks who are just
out to uncover, expose, and damage
our intelligence apparatus-if we had
the intent language Which is in the bill
now, rather than the reason-to-believe
standard.
I wonder if the Senator could tell me
why the intent language would fall
short. Can he give me an example of
how he believes having the word
"intent" in the language, the intent to
impair or impede would cause the bill
to fall short of its objective? That is a
very important point. If he is right
about that and can convince me, I
would have to vote with the Senator
from Rhode Island.
Mr. EAST. The distinguished Sena-
tor from Delaware raises an excellent
point and always, as is the case with
him, he goes to the essence of the
problem.
Let me try to respond in this fash-
ion: First, before turning directly to
his excellent point, let me say that in
section (c), with the inclusion of the
Chafee language, I submit very stren-
ously we do have in effect an intent
standard overall. For example, it
would say, "Whoever in the course of
a pattern of activities intended to
identify," and then later on it says
"knowing that the information dis-
closed so indentifies." Certainly sec-
tion (c), as it reads now, would require
a mind set of a conscious desire to
identify and expose.
Then we come to the very important
point the Senator raises. Why not say
"with the intent to impair or impede
the foreign intelligence activities of
the United States" rather than
"reason-to-believe that such activi-
ties," because it would leave us with
this very difficult position in the court
and before the jury?
I can see now the kind of people who
reveal these names with an innovative
lawyer would come up with this kind
of rationale:
My purpose in doing all of this, my intent
was not to impede or impair the foreign in-
telligence activities of the United States,
but actually my intent was a noble one. It
was by identifying these people I would be
revealing their incompetence or the poor
way in which they carried on their activi-
ties. So my intention would not be to impair
or to impede, but my intention would be in
the near and long term to further intelli-
gence gathering.
That is clever, novel, and innovative,
and they would do it. And the court
would have no alternative but to so in-
struct the jury.
So I think with the reason-to-believe
standard, what it would give is it gives
us a more objective standard whereby
the jury and the judge could look at
the whole and not have to get into the
impossible task of judging this elusive
state of mind of the informant in this
case. As to the Philip Agees and their
lawyers, never underestimate the fur-
tiveness of their legal ingenuity.
I want to put these people in a bok
where if they knowingly reveal these
names and they intended to identify,
and so on and so forth, and that a rea-
sonable person looking at the whole
would conclude clearly notwithstand-
ing their very subjective intent that
what they really intended to do was to
impede or impair. I want effective leg-
islation in short, and I think the
Chafee language would give it.
Mr. BIDEN. I appreciate the answer.
I assumed that was the Senator's posi-
tion.
Let me respond, if I may, to the
answer just given. First of all, I think
it is important for our colleagues to be
aware that although the reason-to-be-
lieve standard, as the Senator from
North Carolina says, appears to be an
intent standard, the intent mentioned
in the reason-to-believe language-and
let me take a moment to read it once
again so we are talking about the same
language. It says: "Whoever in the
course of a pattern of activities intend-
ed to identify or expose."' The intent
goes to the question of identifying or
exposing.
The intent does not go to the moti-
vation for the exposure or identifica-
tion.
Then it goes on to say-and I realize
this is somewhat esoterical unless one
really concentrates on it-all that
needs to be done to establish the
name. That was not accidental. When
they published the name Joe Doaks'
they meant to put Joe Doaks, name in
it.
Then it goes on to say that that in-
tended exposure was done with the
reason to believe that such activities
would impair or impede.
So there are two different standards.
Intend goes to the question of the ex-
posure. It does not go to the question
of motivation. That is an important
distinction.
The second point I wish to make is
that the Senator makes a very elo-
quent plea, as was made on Friday,
that the reason-to-believe standard
puts people-the jury in this case-in
the position to be able to look at the
totality of the circumstance and that a
reasonable-man standard really would
be applied.
So we ask the jury: "Do you have
reason to believe from all that has
been said here that it was the desire of
this fellow Philip Agee, or whoever, to
hurt U.S. intelligence operations; that
is, to impair or impede?"
Now, that is true. They can look at
the totality of the circumstance. But
my point is that when we say that we
are led to believe by the Senator from
North Carolina-and he believes st-
and others, that if you have an intent
standard, the jury is not able to look
at the totality of the circumstance.
They imply. The opposition to the
intent language says that if in fact you
have an intent standard, saying that
the prosecutor has to prove that John
Doe intended to impair or impede
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S 1234 CONGRESSIONAL RECORD - SENATE
lieve standard: First, a pattern of ac-
tivity; second, with an intent to identi-
fy or expose; and, third, with a reason
to believe the activity would impair or
impede the foreign intelligence activi-
ties of the United States.
I want to emphasize for the record
once again that the testimony is thor-
ough, encompassing over 2 years, first,
that a pattern of activities is estab-
lished by the publication of a single
name if, in fact, you went out and
talked to a bunch of people to get to
that one name. Second, in the intent
to identify or expose, the intent goes
to the identification not the motiva-
tion; and, third, reason to believe is an
objective standard which I firmly be-
lieve, as do over 100 constitutional
scholars believe, to be unconstitution-
al. But even if it is not, it makes it
more difficult to get a prosecution and
not easier.
I will amplify that point as the after-
noon goes on, but in deference to my
colleague from Missouri I will yield
the floor.
Mr. CHAFEE. Mr. President, last
Thursday in the discussion we had be-
tween the distinguished Senator from
Delaware and myself, the Senator
from Delaware submitted for the
RECORD a letter dated September 25,
1980, from Philip B. Kurland, and a
series of names of 100 law professors
which were, I believe, part of that
letter.
In any event, my question is directed
to the Senator from Delaware regard-
ing that list of law professors. The
reason that the list of law professors
was submitted was to show that they
indicated disapproval of the so-called
Chafee-Jackson amendment.
As I read the RECORD, I read as fol-
lows, and this is a preface to the signa-
tures by the 100 professors:
We believe that sections 601(c) of S. 391
and 501(c) of H.R. 4, which would punish
the disclsoure of covert CIA and FBI agents
derived solely from unclassified informa-
tion, violate the first amendment and urge
that they be deleted.
Mr. President, my question of the
Senator from Delaware is as follows:
These 100 professors are not against
the Chafee language; they are against
the Chafee language and they are
against the Biden language, both.
Is that not so? If it is not so, how is it
that they urge that the entire section
601(c), to which they refer as dealing
with unclassified information, forbid-
ding the disclosure, be deleted? Why
do they so refer if they are not against
both?
Mr. BIDEN. The reference that was
made was to what was then the
Chafee language. The bill to which
they referred and at the point of time
in which they were writing, section
601(c) was the language Senator
CHAFEE is attempting to reinstate in
the bill. In all candor, although they
did not directly speak to the question
of whether or not "intent" clarifies
that constitutional question, I suspect
that they are not supportive of that
language either. I think the Senator is
correct.
To be precise, the language at the
time at which they were writing is the
language Senator CHAFEE is attempt-
ing to put back into the bill. As the
Senator will recall, we have a situation
where the original language contained
in the bill was the language the Sena-
tor wishes to put in now. That was
amended out of the bill in the Judici-
ary Committee so that the bill before
us now has the intent standard.
But I think the Senator is right,
that there is a very serious question as
to whether or not any disclosure of
any name of any agent that could be
found from public records is in fact
able to be proscribed under the Consti-
tution.
Mr. CHAFEE. I think that is very
important, Mr. President, because we
do not want to sail under any false
colors around here. Concerning the
list of these 100 professors-and by
the mere fact that they are professors
we will call them distinguished profes-
sors, giving them the benefit of the
doubt-there is nothing that can be
used successfully by the Senator from
Delaware to further his case because
these professors are against the entire
section, and they urge that it be de-
leted.
There is nothing about amending.
They are opposed to the whole con-
cept, as they say, of disclosures based
upon unclassified information.
Furthermore, the Senator from
Delaware submitted a letter from a
professor at the Harvard Law School-
at least he has a Harvard Law School
heading on his letter-Laurence H.
Tribe, dated September 8, 1980, direct-
ed to Senator KErriEDY. Mr. Tribe goes
through a long discussion and he ends
up by saying:
I believe that section 501(c) would violate
the first amendment if enacted. According-
ly, I recommend that at least this provision
of section 501 be deleted from S. 2216.
Again, this is a question of deletion.
There is no question of amendment.
As we all know here, the Senator
from Delaware voted for this legisla-
tion when it came out of committee,
and it came out unanimously from the
Judiciary Committee. Am I not cor-
rect?
Mr. BIDEN. Yes; but let me make it
clear--
Mr. CHAFEE. Let me finish. The
Senator voted for the legislation when
it came out of committee after it had
been amended pursuant to the Sena-
tor's amendment?
Mr. BIDEN. Correct.
Mr. CHAPEE. So you are supporting
language which merits an indictment
based upon disclosure of identities de-
rived from unclassified information.
That is what your 601(c) is all about.
There in no question about that. No
one will argue with that.
Mr. BIDEN. That is correct.
Mr. CHAFEE. Yet you are citing,
presumably to support your case, 100
March 1, 1982
law professors who object to the whole
concept.
Mr. BIDEN. That is not correct. If
the Senator will permit me, let me
read from the letter.
Mr. CHAFEE. I think that can be
well gathered. As you admitted in our
little colloquy, there is nothing to sub-
stantiate the view, that these gentle-
men and ladies, professors, distin-
guished professors, are for your ver-
sion of the bill.
Mr. BIDEN. One thing leads me to
that conclusion. Let me read from
Philip Kurland's letter, the letter that
preceded the submission of the 100 or
so distinguished professors. He says:
In response to your request, I can frame
my opinion on the constitutionality of
501(c) precisely. I have little doubt that it is
unconstitutional. I cannot see how a law
that inhibits the publication, without mali-
cious intent, of information that is in the
public domain and previously published can
be valid.
I think it is fair to infer from that
statement that having an intent stand-
ard in that section would, in fact,
remedy the constitutional dilemma.
Let me read it again:
I have little doubt that it is unconstitu-
tional. I cannot see how a law that inhibits
the publication, without malicious intent-
So what he is specifically referring
to is the reason to believe standard.
Let me make it clear, there are many
in this country who believe we should
not have any laws at all on this issue
as a matter of policy. We are talking
about the limited questions of wheth-
er or not it is constitutional. The 100
professors say that the only thing sub-
mitted to them, the only thing before
them, was the language of 601(c) as it
is now being proposed in Senator CHA-
FEE's amendment. That is, a reason to
believe standard.
Mr. CHAFEE. Mr. President, may I
make another point here?
Mr. BIDEN. Surely.
Mr. CHAFEE. It is not clear whether
those 100 names were included with
the Kurland letter, or where they
came from. That is certainly not clear.
Mr. BIDEN. The Senator is correct,
it is unclear. Keep in mind that when
these professors signed the letter to
suggest 601(c) of S. 391 was not consti-
tutional, there was no other alterna-
tive. I was unable to get anyone to
agree-to intent language or anything
else.
The reason I came up with the
intent language was to get around
what was the opposition of many of
these professors. Although the Senat-
tor is precisely and technically correct
that the letter does not speak to the
intent language, by implication, from
the testimony which we are now Bath=
ering-it can be inferred from their
testimony and also from the letter of
Professor Kurland, that the main defi-
ciency they saw in there was not an
intent standard. That is how I came
up with the intent standard. That is
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the exploration of these issues in specific
cases.
The third issue I would like to address is
the question of the liability, if any, of those
who republish or otherwise distribute infor-
mation after the initial disclosure. Given
the fact that both the House and Senate
versions require some intent findings, it is
not possible to argue that the isolated or
single disclosure, on the part of a say, rep-
utable publication, would result in criminal
liability. Indeed, the bills are drafted in
such a way to allow this kind of reporting in
the ordinary course of review of intelligence
operations, foreign policy, and national de-
fense. If, on the other hand, a reporter or
newspaper were to act in a way which sup-
plied the required second intent (House bill)
or pattern of activities (Senate bill) then
perhaps the conduct should be punishable.
It should be clear that the isolated, unknow-
ing or unwitting release of an agent's identi-
ty without the requisite intent would under
no circumstances be punishable.
In this letter I have addressed the Consti-
tutionality of the most troublesome provi-
sion of the two agent identities bills, Section
501(c). I conclude that the class of individ-
uals liable under either bill Is sufficiently
narrow to survive a Constitutional chal-
lenge. In addition, the type of information
which is protected is the type which de-
serves, and in fact requires, statutory pro-
tection, based on a significant Congessional
finding of need. Finally, I believe that the
scope of the bills, limiting the application to
republication or isolated Incidents, is con-
sistent with the Constitutional mandates of
the First Amendment in this area. Thus, I
urge the Congress to give serious considera-
tion to the inclusion of Section 501(c) in a
reported bill.
Sincerely,
ROBERT Bonk,
Professor of Law,
Yale University.
Mr. CHAFEE. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. LEAHY. 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.
Mr. LEAHY. Mr. President, we have
before us, as Senators know, extraordi-
nary legislation that has been dis-
cussed at great lengths, both in the
Senate and in the other body. It is also
legislation that has probably had more
misinformation-misinformation inno-
cently-supplied than just about any
that we have had here.
I say that with a certain amount of
wonder, because we have the ability,
either within the Halls of Congress or
without, to completely obfuscate, with
great regularity, legislation even of
less significance than this, but this
may be entitled to some kind of prize.
Part of it has resulted from a lack of
understanding of some who have dis-
cussed it. Part of it has resulted from
the fact that the administration, be-
tween the Justice Department and in-
telligence agencies, has taken different
positions on it at different times, de-
pending upon which committee they
were talking to or even which of their
many supporters they were talking to.
This has created a bit of a problem,
of course, because everybody in the
House and the Senate feels that the
United States should have a strong in-
telligence service. It would be naive to
think that any country as powerful as
ours, both economically and militarily,
would not have a strong intelligence
service. We would like to feel that we
have the best, and it is conceivable
that we may. Certainly, many like
myself, the distinguished Senator
from Rhode Island, and others, have
done our best to try to make sure that
we do; because there is this broad-
based support, ranging from conserva-
tives to liberals to moderates like
myself, regarding the intelligence
agencies. There has been, inadvertent-
ly, I hope, a tendency on the part of
some in the administration to perhaps
shade their views one way or the
other, depending upon to whom they
speak.
I mention that only to assure every-
body that there is strong bipartisan
support for a good intelligence service,
an effective intelligence service, one
that can protect our Nation.
In regard to that, all of us-Republi-
cans and Democrats, everybody con-
cerned about the pernicious practice
of naming names, the intentional
blowing of cover of agents-are con-
cerned, as we should be, with the
names of our agents, especially agents
abroad, being printed in the various
publications.
Contrary to the views of a James
Bond type of intelligence agent,
karate-trained, armed to the teeth
with special little devices put together
by the armorer "Q," many of our in-
telligence people are rather innocuous,
some as innocuous as Members of this
august body and probably about as
dangerous. I mean on a 1-on-1 physical
basis, of course. They do not have the
one-person-army attributes that we
sometimes think of with intelligence
people. They are more like the George
Smileys of the world, the people who
have not the "Circus" of John LeCarra
novels.
If we have -a person, for example,
who may be an economist working for
us in a country with perhaps all kinds
of tensions and whose name is sudden-
ly listed as a spy for the United States
simply because he is employed by the
CIA, that person's life may well be en-
dangered. Yet, he is no more than a
dedicated, hard-working, loyal, patriot-
ic American performing a duty ex-
tremely necessary to our country. To
suddenly see him and his family en-
dangered for that reason, I feel, is to-
tally unconscionable.
So, effective legislation to stop this
naming names, the intentional blow-
ing of cover, has to be enacted. I will
support its enactment now, because
naming names has resulted in the di-
minished effectiveness of our intelli-
gence efforts and the loss of intelli-
gence sources, the lowering of morale
of our intelligence officers, and possi-
bly the loss of life.
March 1, 1982
Since I have been a member of the
Intelligence Committee, I have made
it a point to visit our chiefs of station
in a number of places around the
world. I intend to do more this year. I
know that this is a matter of great
concern to them, as indeed it should
be.
They are always concerned that
they may pick up the newspaper that
day and find their names listed. In
some instances, our people are well
known as intelligence agents. In fact,
they are more effective because they
are. In many other instances, of
course, they are not. The naming of
names has created real problems for
them. It has created problems when
the name has been simply listed by
somebody who has done it wfth, often-
times extremely mean motives. It has
hurt just as much when the U.S. Gov-
ernment has done it through its own
carelessness or ineptness by listing it
in a very obious way.
So it is crucial that we enact legisla-
tion with speed. By enacting that leg-
islation we should not overlook one
very important factor, and that is the
United States has these intelligence
agencies and our military might so
that we can protect our country and in
protecting our country protect the
safeguards that we all have come to
expect in this country.'
The United States is burdened with
an enormous defense budget. We do it
quite frankly because we want to keep
our country as free as it is, because we
do feel that we enjoy constitutional
rights in this country, rights that are
not available to any other country.
One of those, of course, is our first
amendment right.
So while it is crucial that we enact
this legislation it is just as crucial that
we enact it in a way that will pass con-
stitutional muster.
That is why I urge the support of
the version of section 601(c) of the bill
which was adopted by the Judiciary
Committee, adopted after weeks and
months of hearings and debate. This
section limits the use of information
available in the public domain. It cre-
ates criminal liability for a person
who, "in the course of an effort to
identify and expose covert agents with
the intent to impair or impede foreign
intelligence activities of the United
States by the fact of such identifica-
tion and exposure discloses ... any in-
formation that identifies an individual
a covert agent."
In proscribing this activity, S. 391 re-
quires that the person charged be
proven to have a bad purpose in iden-
tifying covert agents through the use
of public sources.
The amendment offered by my dis-
tinguished friend from Rhode Island,
Senator CHAFER, eliminates this bad-
purpose test. Rather, it uses the objec-
tive "reason to believe" standard
which the Justice 'Department de-
scribes in a May 8 letter to Congress-
man MAZZOLI as a negligence standard.
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potential harm to those identified under
such circumstances is still significant, how-
ever. Moreover, the Kennedy language
would invite potential defendants to assert
an "underlying purpose" of reforming U.S.
policy in every case and thus frustrate en-
forcement of the statute.
As I testified at the Subcommittee hear-
ing, we believe an objective intent standard,
rather than a specific intent standard, is
preferable to facilitate prosecutions of the
harmful disclosures identified by this Sub-
committee. The Kennedy compromise, espe-
cially with its descriptive legislative history,
unacceptably narrows the scope of persons
subject to prosecution and provides a poten-
tial safe haven for those who engage in
these activities.
We have much less difficulty with subsec-
tion (c)(2) of the Kennedy compromise, al-
though we believe it does not go far enough.
It would permit prosecution of individuals
who engage in a pattern of activities to
expose covert agents and makes such disclo-
sures with reckless disregard for their
safety. This subsection is not, however, suf-
ficiently broad in that it would not apply to
disclosures by persons who should reason-
ably have foreseen that their disclosures
would lead to harm for either the covert
agents or the intelligence operations in
which they are involved. As stated earlier,
we believe that a "reason to believe" stand-
ard is more appropriate to be included in
this legislation.
I trust this additional information will be
useful to the Subcommittee as it deliberates
further the provisions of H.R. 4.
Very truly yours,
RlcxAan K. Win. saD,
Counsellor Intelligence Policy,
Office of Intelligence Policy and Review.
Mr. LEAHY. In eliminating a bad
purpose requirement, this amendment
may well go beyond the first amend-
ment limits set out by the Supreme
Court under the Espionage Act in
Gorin against United States.
In Gorin, as I am sure all my col-
leagues will recall, the Court examined
the constitutionality of the espionage
statutes, and the Court stated:
If this were the language, ...
Referring to no intent.
"It would need to be tested by the inquiry
as to whether it had double meaning or
forced anyone, at his peril, to speculate as
to whether certain actions violated the stat-
ute. This Court has frequently held crimi-
nal laws deemed to violate these tests inval-
id.
Let us to back to Gorin, a 1941 case:
The Court held the espionage stat-
utes constitutional precisely because
they went beyond requiring a person
to speculate, at this peril, of whether
his action violated the law. The Court
validated the statutes because they re-
quired the Government to prove an
element of bad faith, of scienter.
In adopting what the Justice De-
partment admits is a negligence stand-
ard, the Chafee language eliminates
the bad faith test, so pivotal to the
Gorin decision upholding the Espio-
nage Act.
That is precisely the reason that a
broad range of constitutional scholars
have questioned the constitutionality
of the Chafee language and opposed
its inclusion in agents' identities legis-
lation.
I might say in this regard that both
Senator CHAPEE and I are of a mind.
We want this naming of names to
stop. We want to be able to hold sacro-
sanct the identify of our agents
abroad. We want to have an intelli-
gence service not made ineffective by
the constant fear that their names will
be disclosed.
But I must admit that I take a fairly
objective look at this and I place
myself in the position of one who
might have to prosecute under this
statute.
While I never prosecuted someone
under a statute involving espionage, I
have prosecuted thousands of cases
prior to coming to the Senate. I look
at any criminal statute as what makes
sense from a prosecutor's point of
view.
The language passed by the Judici-
ary Committee fulfills the. two things
that we would want in this: Constitu-
tionality with its protection of our
first amendment rights, in my mind
the most cherished of our constitu-
tional rights. Of all our constitutional
rights none stands out as more impor-
tant to me than the first amendment
rights. But second, it fullfills the other
criteria that we want, and that is a
statute that one can prosecute under,
one that not only makes sense to a
prosecutor but also does not make the
prosecutor sit there all the way
through and wonder if he is going to
have a constitutional issue raised.
Professor Kurland of the University
of Chicago put it most succinctly when
he said in a letter to the committee
concerning identical language last
year:
I cannot see how a law that inhibits the
publication, without malicious intent, of in-
formation that is in the public domain and
previously published, can be valid.
Even the recent Supreme Court case
of Haig against Agee, which involved
no criminal sanctions, relied heavily
on Mr. Agee's bad purpose when it dis-
missed his first amendment claims. In
upholding the 'revocation .. of Mr.
Agee's passport, the Court stated:
Agee's disclosures, among other things,
have the declared purpose of obstructing in-
telligence operations and the recruiting of
intelligence personnel. They are clearly not
protected by the Constitution. The mere
fact that Agee is also engaged in criticism of
the government does not render his conduct
beyond the reach of the law.
Yet this amendment is attempting to
enact a criminal statute which would
make it a criminal act for a newspaper
reporter to negligently disclose the
identity of a covert agent which he
discovered only through the use of
public sources.
Mr. President, I feel a chill, a chill
on our first amendment rights when
you hear the amendment described
that way.
All of us in our attempts to keep
America strong, to keep our defense
strong, to keep our intelligence agen-
cies strong, do it for one reason. We do
it so that we can protect America and
March 1, 1982
protect the rights of all Americans, so
that we can maintain a country which
abides by its constitutional principles,
that abides by its constitutional histo-
ry.
Do we accomplish anything if in pro-
tecting America for Americans, in pro-
tecting our constitutional rights for
ourselves, we have to nibble away at
those constitutional rights? What
have we protected? What have we
gained?
We will not be helping the foreign
intelligence activities of the United
States by voting out a bill which runs
afoul of the first amendment. We will
not be aiding our foreign intelligence
operatives overseas by enacting legisla-
tion which then will be rejected by the
courts.
Imagine aside from the first amend-
ment rights, imagine aside from the
question of whether we are nibbling
away at our first amendment protec-
tions, imagine that we were to pass
this law and then suppose, as would
most likely happen, the law was struck
down as unconstitutional by the
courts. What kind of a signal does that
send? Does not that create a far great-
er moral problem? Does that not
create far more problems than we face
now? Might it not be better to take a
more conservatively drawn law, one
that is carefully crafted to meet the
constitutional requirements, one that
we know will stand up in the courts
and pass that, so that each member of
our intelligence community know they
stand protected by a law that will
stand up?
Following the vote in the House to
eliminate the intent language, I asked
the Director of the CIA, Mr. Casey,
whether or not enacting legislation de-
signed to deal with this problem which
ended up being held unconstitutional
by the courts might cause greater
harm than not having the legislation
in the first place.
Mr. Casey replied:
Yes, yes. I think if we had legislation that
was struck down by the Court, that would
set us back to where we were, maybe even
set us back further.
This issue is too serious to afford
this Senate the luxury of seeing just
how close to a constitutional limit we
can go without crossing over the line.
Indeed, we have an obligation to enact
legislation which does not abridge im-
portant first amendment rights and
we can do so without losing any sup-
port for the bill.
The CIA and the Department of Jus-
tice, while preferring the Chafee lan-
guage, are satisifed that the commit-
tee language will be. effective in pros-
ecuting the kinds of activities which
this legislation is designed to stop.
Indeed, the CIA suggested this lan-
guage as an acceptable alternative to
language originally proposed by Con-
gressman MAZZOLI.
Even following the House vote, CIA
Director Casey reiterated in a hearing
before the Judiciary Committee that
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CONGRESSIONAL RECORD SENATE March 1, 1982
Mr. DENTON. Mr. President, I
assure the Senator If I am granted the
floor I will not take more than 3 min-
utes.
Mr. LEAHY. I simply wanted to
make the parliamentary inquiry, Mr.
President. Thank you.
The PRESIDING OFFICER. The
Senator from Alabama.
Mr. DENTON. Mr. President, I have
listened to three or four speeches
against the amendment. I have held
my peace. But Senator CHAF'EE, who
offered the amendment, is at the
White House at the moment and I
want to take a brief opportunity to re-
spond to some of the points which, I
think, unless responded to in a timely
manner, may be overlooked after he
returns.
We have had the question of realism
introduced by the last speaker. One
piece of realism is that the KGB-DGI
combination of intelligence agents
probably outnumber our intelligence
agents 100 to 1. That is a conservative
estimate.
I chaired a hearing of the Subcom-
mittee on Security and Terrorism on
Friday which received testimony from
a DGI defector which confirmed that
there are approximately 300 illegals in
the Miami area alone operating in an
intelligence capacity for the Cuban
DGI, which is run and controlled by
the Soviet KGB. Many of these DGI
illegals act as decoys thus distracting
the few FBI agents who might be in
that area from the activities of the
real agents. This is the reality of the
problem in terms of intelligence.
It must be kept in mind that both
the Carter administration, with Benja-
min Civiletti as the Attorney General,
and the Reagan administration with
William French Smith, as the Attor-
ney General, desire and support the
Chafee amendment language in order
to better protect our intelligence
agents.
We have many in this body who are
qualified lawyers. I am not. But there
are a great many more qualified law-
yers in the executive branch of. our
Government, specifically the Justice
Department, who have a background
in this area of the law and who have
studied and researched this issue thor-
oughly, who are firmly of the opionion
that the Chafee amendment is needed
for the protection of our agents. The
Chafee amendment is more in line
with, and, indeed, more liberal in
terms of the first amendment as op-
posed to the intent provision that
would require a witch-hunt type of ap-
proach. Under the Biden intent lan-
guage, there would be a great tempta-
tion to establish the state of mind of
the accuAed individual in order to
prove what his intent is.
There is, I think, a curious Intermin-
gling between those termed "liberals"
and those termed "conservatives" on
this particular issue. I note an inter-
esting mixture of both on each side of
the issue.
The President of the United States
today has asked that we bring this bill
up and do something with it quickly. I
heartily support that request.
The Senator from Vermont brought
up the argument that "reason to be-
lieve" effectively constitutes negli-
gence. I would have to disagree with
that contention. Examination of all
the elements of proof required under
section 601(c), which is indeed the
issue, makes clear that reason to be-
lieve does not mean that a negligent
disclosure of an identity would be a
criminal offense.
First of all, the individual making
the disclosure must know that the in-
formation he discloses does, in fact,
identify a covert agent.
The person making the disclosure
must also know that the United States
is taking affirmative measures to con-
ceal the covert agent's classified intel-
ligence affiliation. Moreover, the dis-
closure must be in the course of a pat-
tern of activities intended to identify
and expose covert agents.
And, finally, the person making the
disclosure must have reason to believe
that his activities would impair or
impede foreign intelligence activities
in the United States.
All these elements must be proved,
Mr. President. An individual making
an unauthorized disclosure under the
circumstances can hardly claim negli-
gence. Subsection 601(c) cannot be
fairly evaluated incrementally. It must
be evaluated as a whole. It is complete-
ly fallacious to argue that standing
alone reason to believe is the same as
negligence, because reason to believe
does not stand alone in subsection
601(c); it is preceded by five-other ele-
ments, all of which must be proven
beyond a reasonable doubt.
In conclusion, there are nine other-
statutes in the intelligence-related
area which employ the reason to be-
lieve standard.
Mr. President, I suggest the absence
of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The bill clerk proceeded to call the
roll.
Mr. LEAHY. 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.
Mr. LEAHY. Mr. President, I will be
unavoidably absent this afternoon, but
I would hope that those offering the
amendment might address themselves
to a couple of issues that concern me.
On the reason to believe line in sec-
tion 601(c), it strikes me in my own
review that it is more of a negligence
standard than an objective standard.
If that is so, I have not found a Su-
preme Court decision that has upheld
a criminal statute in the first amend-
ment area where a negligence stand-
ard was the only criminal intent re-
quired by the statute.
I would be interested to know
whether indeed this is a negligence
standard and, if so, how the propo-
nents would get around the lack of
any Supreme Court case upholding
such a criminal statute.
The amendment requires that the
Government prove that the defendant
be engaged in a pattern of activities in-
tended to identify and expose covert
agents.
I would like to know what distinc-
tion is drawn between the intent to
identify and the intent to expose a
covert agent. Random House diction-
ary defines the word "expose" as to
"lay open to danger, attack, and
harm." That implies an element of bad
purpose. Is there built into this
amendment a bad purpose by requir-
ing that the person have the intent to
identify as well as an intent to expose?
I am also concerned with the reason-
to-believe standard. In addition to
being potentially unconstitutional, it
may create some serious gray mail
problems. Would a defendant charged
with this section of the act be able to
question the Government with regard
to its methods of providing cover for
covert agents?
I do not raise that as simply a hypo-
thetical idea. We have had a recent
case where, because of the gray mail
aspects, we have not been able to go
forward with what I thought was an
appropriate prosecution.
These are considerations and I hope
they are going. to be raised and de-
bated during this debate.
Mr. President, I suggest the absence
of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The bill clerk proceeded to call the
roll.
Mr. HELMS. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
GORTON). Without objection, it is so
ordered.
emisphere of the Commit-
the United
tions, Jeane Kirkpat-
freedom house
[sphere in recent
memory.
Mr. President, Mrs.. Kirkpatrick s
opening statement to tli committee is
especialy enlightening i its articula-
tion of the policy of the ited States
concerning basic human free dome, and
I ask unanimous consent tat it be
printed at this point in the R ORD.
There being no objection, th state-
ment was ordered to be printed in the
RECORD, as follows:
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S 1244 CONGRESSIONAL RECORD - SENATE March 1, 1982
Mr. Fagoth Mueller described for us officers assigned to the U.S. Embassy 29, 1981, in the case of Haig against
ow one woman, giving birth to twins, in Managua. U.S. officials there be- Agee, said in part:
ourutu "1 1x1 1u.u uca.uawa. ....~
Id not rise and move with the was linked with Agee's visit. Several of have the declared purpose of obstructing in-
-_ .__a ._."- .
ti
ns and the recruiting of
pera
o
by the Sandinistas. She was receives aeatn tnrears, anu 41;..,e,. protected byvthe Constitution. The mere
es, one born, one yet to be de- were evacuatea for rneir perbuli:u the government does not render his conduct
safety. beyond the reach of the law.
band buried her at the foot There also fol}owed four incidents in There is also widespread agreement
th
ps of the burned-down which single female employees of
e that we must act now-indeed that we
Mr. President, I suggest
of a quorum.
The PRESIDING OFFI
clerk will call the roll.
The bill clerk proceeded to
roll.
unanimous consent that the order
the quorum can be rescinded.
The PRESIDING OFFICER. With
out objection, it is so ordered.
INTELLIGENCE IDENTITIES
PROTECTION ACT OF 1981
The Senate continued with the con-
sideration of the bill (S. 391).
Mr. JACKSON. Mr. President, there
is wide agreement on the importance
of the measure we are considering, the
Intelligence Identities Protection Act.
At long last, we have before us the
means to protect our national foreign
intelligence capabilities from a serious
threat. There are active today a few
people who make business of exposing
t
e Identitie. of Ame ican revert
h
ursuing
ot
p
--- W C uilW b Ya V oca u aaaw uv .... ? ?o---- -r
agents. l flee people a e n
historical or academic research, cor- proceeded to empty the apartment of imposing a burden on those who would
recting abuses, investigating possible all its contents and again disabled the be prosecuting others under this lawaw-
scandals or illegal activities, or pursu- telephone. During the course of these a burden of six elrs nde that
ing any other salutary public activity. activities, the Nicaraguan acquaint- each be proven beyond reasonamust
ble
Instead, they are in the business of once was beaten. The assailants are doubt.
"naming names..1 quoted by the maid as having said, We are agreed, moreover, on five of
These malefactors, notably Louis "We are doing this so that CIA person- elements. Specifically, the
Wolf and Philip Agee, have persisted nel will have to leave," and that they those
would six eSpec in the ver-
public in risking the lives of courageous were doing this so that "all Americans law hose sloe as it came to the floor or r-
public servants and threatening our will have to leave." Just before leaving ended in the way that
Senator
vital foreign intelligence activities. the apartment, one of the men said, a and I, with several others,
Among Their other activities, for ex- "You are CIA and our hands are itch- haCHArm ve urged, that the prosecution prove
ample, those two visited Greece, Ja- ing to kill you." that a person accused under this law
alleged a CIA relationship for several Mr. President, because of incidents
American Government personnel like these, and because of the way in
working in those countries. In so which Wolf-Agee-style activities can
doing, Agee, and Wolf placed the indi- injure our national foreign intelli-
viduals they named in serious peril. In gence capabilities, the need for legisla-
Mozambique, the peril was harassment tion dealing with this matter is not in
and expulsion. In Jamaica, the peril doubt. There is widespread agreement,
was attempted assassination. In not just in the Senate but throughout
Athens, it was murder. Congress and the Government gener-
This threat continues today. Just ally, on the need for legislation to pro-
last fall, in October 1981, Agee trav- tect those who serve our country in
eled in Nicaragua, where a strident such hazardous circumstances.
anti-United States campaign was The activities of people like Agee
under way. On November 6, the pro- have been condemned in the press and
Sandinist newspaper, Nuevo Diario, in the courts. For example, the Su-
published the names of 13 alleged CIA preme Court majority opinion on June
they willtry to find men armea wnn plaloib vubereu L11V -.--r- --- ---? -----
in Jamaica followed 3 days later by an
ee who
l
oy
home of an Embassy emp
was absent at the time. The men tied
up the employee's gardener and
searched the woman's home, taking a
few items and disabling the telephone.
in the second incident, individuals
believed to be the same three men
forced their way onto the grounds of
the home of another employee, tied up
the guard, and waited 7 hours for the
employee to return home. The intrud-
ers then tied up the employee, threw
her into a closet, took her car, money,
and some belongings, and departed.
The intruders told the guard that the
employee was a CIA agent.
In the third incident, the home of an
employee was entered by force. The
guard was tied up and the employee
was accosted and threatened. The men
were overheard to discuss among
themselves whether or not the em-
ployee's name was "on the list."
The fourth incident involved the
same employee who was the target of
the first. The men involved hid on the
grounds of the employee's residence.
When she returned home, the men
stopped the car in which she was
riding and, at gunpoint, took her, a
apparent attempt to assassinate an-
other of the Embassy personnel
named by Wolf. The following day,
Mr. Frank Carlucci, then Deputy Di-
rector of Central Intelligence, wrote to
one of my colleagues on the Intelli-
gence Committee about these events.
He said:
I further believe we can ill afford to wait
until another member of a U.S. overseas
mission comes home in a casket before Con-
gress addresses this pressing problem.
How right he was-and that line, was
written before the attacks in Mozam-
bique and Nicaragua.
We also find general agreement on
all provisions of the bill before us now,
save for one section. That section con-
cerns provisions dealing with people
who have never had access to classi-
fied material, section 601(c) of S. 391.
And even on most parts of this sec-
tion, we are agreed.
We are agreed that we must legislate
to correct grave abuses. We are agreed
that we must legislate carefully, to
avoid infringing on or chilling the ex-
ercise of civil liberties. We are striving
to craft a law that will delimit narrow- -
ly the specific abuses that, would be
must have:
Acted in the course of an effort or
pattern of activities intended to identi-
fy and expose covert agents.
Intentionally disclosed information
that did, in fact, identify a covert
agent.
Made disclosure to an individual not
authorized to receive classified infor-_
mation.
Known that the information dis-
closed did, in fact, identify a covert
agent.
Known that the Government was
"taking affirmative measures to con-
ceal such individual's classified intelli-
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March 1, 1982 CONGRESSIONAL RECORD -- SENATE
gence relationship to
States."
SUPPORT POR THS ORJECTIVZ STAlfDARD
Where there is disagreement, Mr.
President, is the sixth element re-
quired for the prosecution to prove.
The bill, as it came to the floor, em-
ploys. an "intent" standard for pros-
ecution, which would require that a
defendant's state of mind and purity
of purpose be examined. That is, in
the bill as it came to the floor, the
sixth element required for a successful
prosecution would be that the person
making the disclosure of identity did
so with the intent of impairing or im-
peding the foreign intelligence activi-
ties of the United States.
This language concerned me, chiefly
for reasons of civil liberties. We must
exercise great care to protect the exert
cise of our political freedoms. We
should be very cautious about writing
laws that would permit- or even require
examination and trial of a person's
lawful exercise of political beliefs, ac-
tions, and associations. The free exer-
cise of public scrutiny and debate is
central to our democratic institutions,
and we should avpid creating laws that
might chill these activities by inducing
a fear that a spirited criticism made
today will tomorrow be adduced as evi-
dence of impure intent.
Consequently, I joined Senator
CHAISE and several other cosponsors
in proposing an amendment to the bill
which which would restore the orlgi-
nal language of the bill. Our amend-
ment would replace the subjective
intent standard with ,an objective
standard.' according to which the pros.
ecution would have to prove that the
accused has reason to believe that he
,would impair or impede foreign intelli-
gence activities of the United States.
The language proposed in our
amendment has been strongly sup-
ported by both the Carter and Reagan
administrations. It is the language
that was endorsed by the Senate Intel-
ligence Committee in 1980. that was in
the bill when it was originally submit-
ted to the Senate during this Con-
gress, and that was overwhelmingly
-adopted by the House of Representa-
tives early last fall.
The key advantage of this language.
I believe, is effectiveness. The Chafee-
Jackson language- will be more effec-
tive in protecting both our foreign in-
telligence capabilities and our Individ-
ual civil liberties. With this language,
the legitimate scope for governmental
investigation would be limited. Being
an objective standard of evidence, the
reason to believe element makes irrele-
vant an individual's political beliefs,
associations, and other public activi-
ties. At the same time, malefactors will
not be able to avoid punishment under
this law by claiming that they had a
benign intent for their actions, howev-
er, much they endangered national se-
curity and imperiled individual lives.
The reason-to-believe standard Is ef-
fective in a technical sense, as well. It
is consistent with the body of statu-
oped concerning espionage activities.
And it has passed constitutional
muster in a number of ., important
cases.
Finally, it is important to remember
? that we have been addressing just one
element-the objective versus the sub-
jective standard of. proof. Whichever
-version is supported by the Senate will
be only one of six elements, each of
which must be proven. Moreover, in
case a court might require further
guidance In applying this law, its legis-
lative history makes absolutely clear
that the legislative purpose is to "get
the bad guys, not to chill debate over
issues of public policy.
Mr. President, the amendment we
have proposed will help protect our
civil-freedoms and the lives of coura-
geous public servants-who are also
vital to preserving our freedoms.
Mr. President, I urge prompt adop-
tion of the amendment.
Mr. BIDEN. Mr. President, I wel-
come the comments made by the dis-
tinguished Senator from the State of
Washington. I shall attempt to rebut
some of the assertions that he made.
He has been a leader in thin: area for
some time. His knowledge of the area
is without question. But I wish to clar-
ify a couple things. The Senator says,
as do many have who support his posi-
tion, that having the reason to believe
language in the legislation would avoid
the argument that there was a benign
intent; that is, that the person making
the statement of disclosing the name
would not be able to argue: "I really
didn't mean to hurt the intelligence
capability of the United States; I
meant to help ft."
I cannot for the life of me under-
stand how the Senator and others can
continue to make that argument. when
in fact the same argument applies to
reason to believe. Why would a de-
fendant in a case not just as easily be
able to say before a jury, "ladies and
gentlemen, I did not have reason to
believe that I was hurting the United
States of America; I had reason to be-
lieve I was helping the United States
of America by disclosing the name of
John Doe who I believe to be a mole in
the CIA."
If the argument applies to the intent
language it applies with equal and I
think in fact decreasing validity to
those who suggest the reason to be-
lieve language should be there.
I wonder If the Senator wishes to re-
spond to that.
Mr. JACKSON. I am glad to re-
spond.
Having been a prosecuting attorney
myself once upon a time, handling
cases from speeding to murder in the
first degree and having sent them to
the gallows, so to speak, I can say as a
former prosecutor that the task here
without the Chafee-Jaekson amend-
ment is going to be very difficult when
you apply a subjective standard.
The key point is that the test should
be objective and not subjective, that a
S 1245
person knew or should have known
that the result of this course of con-
duct would lead to such-and-such..
That is what we are really talking
about.
Without this amendment, the ele-
ments of proof will be troublesome to
a jury and a U.S. attorney.
Mr. BIDEN. With all due respect,
having also tried a number of murder
cases, having tried rape cases, having
tried cases of equal consequence I re-
spectfully suggest and maybe having
tried them even at a more recent date
than the Senator from Washington, I
respectfully argue he is not correct. I
respectfully argue. that when one
walks into a court to try to apply in a
criminal case a reason-to-believe stand-
ard that is essentially a civil standard
by and large it is more difficult to
make that case than it is to make the
case of intent.
For example, in the celebrated case
we have been reading for several
months of Wayne Williams in Atlanta,
there was an intent-requirement The
prosecuting attorney bad to prove
that Wayne Williams intended to kill
those people. There are no eye wit-
nesses who said.. "I saw him kill those
young men.
There were no eye witnesses to sug-
gest that he ever at any time said he
intended to do anything. There was
never any proof in the literal sense. I
know the Senator from Washington
and others of my distinguished col-
leagues used the phrase "pure intent"
There is no such thing as pure intent
No court in the- world requires pure
intent, whatever that means. Intent
can and always is inferred unless one
can establish it directly by either the
defendant acknowledging that he had
the intent to do that All the rest of it
is inferred. So, this idea that somehow
we are out here searching like Dioge-
nes for the truth and pure intent is a
bit of a red herring. There is no such
thing as pure intent required to be
proven. It can be inferred.
Mr. PERCY. Mr. President, will the
Senator yield?
Mr. BIDEN. I Will not yet at this
point because it is a very important
point. I want'to hear the Senator's re-
sponse. I will yield in 30 seconds be-
cause I do not think the response will
take much longer than that.
Mr. JACKSON. As you know, reason
to believe laanguage appears in most of
the basic espionage statutes. I ask my
colleague, am I right or wrong?
Mr. BIDEN. You are right, but you
are applying it incorrectly.
Let me respond directly to the Sena-
tor from Washington. My distin.
guished colleague. Senator CHAISE,
has cited in the debate on Flyday sev-
eral espionage statutes. As a matter of
fact, he cites two espionage statutes
that included the reason to believe
language, and I would argue before
the distinguished court here that they
are not cases in point.
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CONGRESSIONAL RECORD - SENATE March 1, 1982
He starts off when he cites 18 U.S.C.
793, subsection (e), and this is a gener-
al espionage statute which makes it a
crime to disclose material related to
the national defense to a person not
entitled to receive it, and it adds an ad-
ditional requirement of "reason to be-
lieve that this information could be
used to the injury of the United
States" only for oral statements as op-
posed to documents.
Senator CxAFzE confirms that this
statute contains far less protection
than section 391, but the reason it
does is that this statute is not intend-
ed to apply to publications of informa-
tion but only to the secret transfer to
foreign powers.
This analysis is spelled out in an ar-
ticle in columbia Law Review in 1973
by Edgar and Schmidt. The Justice
Department asserts that this is not
the case and argues the reason to be-
lieve statute is as the Senator sug-
gests. But there is not any case of
which I am aware in the espionage
statutes, not a single conviction for
the publication of information, not a
single, solitary one under the reason
to believe standard and the reason
why is with publication the reason to
believe standard would be unconstitu-
tional unless intent is implied.
Mr. JACKSON. I do not believe we
have a provision in the code at the
present time similar to this one involv-
ing publication. We have the statutes
relating to classified material. But as
to the situation we are dealing with
here, we have not had that problem
presented in this way.
My colleague also mentioned intent
in murder. Of course, in first degree
murder it is not just intent, it has to
be premeditated intent which, as my
colleague knows from his experience,
having tried murder cases-I have as a
prosecutor, and do not know whether
he has in either defending or prosecut-
ing-
Mr. BIDEN. I was defending.
Mr. JACKSON. It is a tough ques-
tion, and the point I want to make
here is that to be required to prove
specific intent and to establish that as
one of the six elements poses real
problems in prosecuting. The accused
can say:
I had no intention of doing anything here
other than to divulge a scandal or whatever
is going on.
I think we have a duty and a respon-
siblity of saying that that individual, a
reasonable person, a reasonable man,
if you please, knew or should have
known, Mr. President, that the conse-
quences of his act or her act would
lead to such and such. That is what I
am saying here, to sum it all up.
(Mr. HATCH assumed the chair.)
Mr. BIDEN. Let me respond by
pointing out the Senator makes a very
eloquent rebuttal for his own point
about why the espionage-
Mr. JACKSON. That is my pur-
pose-for my own point.
Mr. BIDEN. Rebuttal of your own
point by the Senator's pointing out
that the espionage statutes are not ap-
plicable, they are not cases in point,
because you pointed out, Senator, the
reason why there have not been pros-
ecutions for publication is there are
not any statutes that, in fact, make
punishable publication under the ?
reason-to-believe standard, and the
point is the Senator from Rhode
Island and the Senator from Washing--
ton and others have often used that it
is evidence of the fact that the reason-
to-believe standard would be constitu-
tional is simply not applicable when
the issue is publication.
The second point I would like to
make- to the Senator from Washington
on premeditation, premeditated intent
to establish first-degree murder can be
inferred. It does not have to be proven
in the sense that you have somebody
having to leap into the person's mind.
It can be inferred from their acts.
That is how we convict people.
Mr. JACKSON. But the Senator
would not want the Rxcoan to stand
here and say it does not have to be
proven. The judge instructs the jury
that the accused must have the
charges against them proven beyond a
reasonable doubt both as to intent and
premeditated intent.
Mr. BIDEN. Right.
Mr. JACKSON. I agree with the
Senator that the overall circum-
stances, the pause, the time, and what
not, are matters that can be adjudged
by the jury as evidence of premedita-
tion.
Let me just say when I referred to
the espionage statutes and pointed out
that language is similar in those stat-
utes and they have been upheld by the
courts, that we are dealing now with a
situation which we have not had to ad-
dress in the past in a statutory
manner, and I submit that the prece-
dents here confirm the position that
the Intelligence Committee took and
that was adopted by the overwhelming
vote by the House on this issue.
We can go on and on, but I must say
that the standard that makes sense to
me is the prudent standard, and that
is whether the individual knew or as a
reasonable person should have known
that the consequences of his act would
lead to this kind of harm to the secu-
rity of the Nation.
Someone could travel around saying:
I was Just down in such and such a coun-
try checking over the lists in the Embassy,
and having served in the CIA I thought it
ought to be known who is working for the
CIA. It is a great organization, but I think it
all ought to be made public.
What does one do? Yet we know that
a reasonable person would come to the
conclusion that that person, regardless
of his defense and his protestations,
was indeed harming the security of
this country.
Mr. BIDEN. I think that is a very
valid point the Senator makes. Let me
ask him now a specific question. A re-
porter for the Washington Post, Bob
Woodward, disclosed that the CIA
made secret payments to King Hussein
of Jordan for the past 20 years, and
there was a subsequent story in the
New York Times by David Binder on
February 19, 1977, who named four ad-
ditional foreign leaders who received
that money.
Under the reason to believe standard.
I believe it is fair to say anybody who
did that, in this case Woodward and
Binder, should have reason to believe
that would have hurt our efforts, is
that not correct?
Mr. JACKSON. I think you would
have reason to believe that the King
of Jordan did not look so good. He did
not harm any of our people.
Mr. BIDEN. I see.
Mr. JACKSON. We are here to pro-
tect the good name and the integrity
of the intelligence system of our coun-
try. Other countries protect theirs in a
pretty rough manner.
Mr. BIDEN. So neither of those
people-
Mr. JACKSON. My colleague is
being very modest. He has done a lot
of outstanding work on the Intelli-
gence Committee, and he knows that
other countries are really tough on
those who violate the code. The Brit-
ish, who have a reasonable system,
through the centuries of freedom have
been the toughest, and the Israelis are
even tougher.
Mr. BIDEN Well, I understand that.
I am concerned about what it means in
this country. If the Senator is right, I
could vote with him.
For example, an article by Jeff
Gerth on December 6, 1981, in the
New York Times reveals that many-
former CIA station chiefs have gone
into private business in countless
countries around the world. He goes
on to identify seven former CIA offi- -
cials who have used contacts they
have made, while they were in Gov-
ernment, uncovering the agent's name.
One of the standards is that the Gov-
ernment is taking affirmative action to
prevent their disclosure. The Govern-
ment took affirmative action to pre-
vent the disclosure of these names. He
published them. Under the reason to
believe standard, is it likely he will go
to Jail if he were tried?
Mr. JACKSON. No.
Mr. BIDEN. Why not?
Mr. JACKSON. No, because we are
talking about former agents who were
no longer in the CIA. We are talking
about a totally different situation.
Mr. BIDEN. So, as the Senator un-
derstands our overall statute here
then, if anyone, including Agee, can go
out and disclose, even though it is
based on prior information that he
had as an agent, he could go out and
disclose the names of former agents
who were no longer agents, is that
right?
Mr. JACKSON. Well, you have to
prove, as you know, all six elements.
Mr. BIDEN. I understand. But I
want to make sure we are talking
about the same thing. Because the
Senator just said the reason why this
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March 1, 1982 CONGRESSIONAL RECORD - SENATE
fellow Gerth would not to to Jail was
because these people were former
agents. Does that mean it is all right
to disclose the names of former
agents?
Mr. JACKSON. My specific amend-
ment, the Chafee-Jackson amend-
ment, relates to those who are on
active duty in the CIA. There is an-
other section in the bill that addresses
former employees of the agency.
Mr. BIDEN. All right. We have a
couple of articles by current employ-
ees, where the names of current
agents have been published by the
United States or by publications in the
United States. Let me give you a few
examples.
David Shipler, reported in 1978. In
the New York Times that the Soviet
paper Izvestia had identified four al-
leged CIA officers in the U.S. Embassy
in Moscow who were then active
agents in the area. He published those
names. He published them because he
said .that Izvestia had identified them
as agents.
Now, it would seem to me, in . the
reason.to believe standard, that all the
standards were met. First, he did pub-
lish the name of agents. He disclosed
it and he knew they were agents.
Second, he used the pattern of activi-
ties to disclose it, because he went
around and interviewed a whole bunch
of people to establish whether or'not
they were agents. Third, he had the
intent to disclose those names by the
fact of disclosure. Fourth, the Govern-
ment was taking affirmative action to
prevent, in fact, their names from
being disclosed. And then we get down
to the last, standard, should he not
have-.nine the Government said, "We
do not want you publishing, those
names. We are taking efforts to keep
these from being disclosed. You, in
fact, .are engaged in the business of
finding out who they are," and so on-
should he not have, under the Sena-
tor's standard, reason to believe that
that would harm the United States of
America? I do not know how you avoid
that.
Mr. JACKSON. First, regarding the
previous case, I want 'to make clear
that the Senate bill does not cover the
situation that my good friend referred
to. That is, the disclosure of a covert
agent who is no longer in the employ
of the Government is not protected by
the Senate bill. The House bill pro-
vides, as it was passed and sent over
here, for a 5-year hiatus; that is, for 5
years after having left the intelligence
community, anyone who discloses in-
formation as indicated in the general
bill would be in violation. But my
amendment, the Chafee-Jackson
amendment, addresses only those on
active duty.
Mr. BIDEN. I think that is impor-
tant to make clear.
Mr. JACKSON. My colleague, I
know from our work together on the
committee on so many matters that
we cannot even discuss on this floor,
has played an outstanding role in en-
hancing and in strengthening our in-
telligence system. I know he wants to
do what we all want to do, and that is
to protect those who are taking great
risks for our country. We all want to
do the same- thing. I do believe that
unless we have language of this nature
we are simply not going to get the con-
victions when the chips are down.
That is my sole reason for offering the
amendment with Senator Caress and
other colleagues.
Mr. BIDEN. I do not want to put the
Senator on a spot or get us in a posi-
tion where we are arguing--
Mr. JACKSON. Neither one of us is
on the spot.
Mr. BIDEN. What I mean is arguing
about the number of angels on a head
of a pin or anything like that. I do not
want to get. into any of those kinds of
esoteric arguments.
I have very practical concerns, as the
Senator does.
For example, Robert Pear described
in the December 20, 1979, New York
Times a lawsuit involving current and
former CIA employees . assigned to
South Korea. One of the officers told
the Times that the CIA had been
aware of South Korean influence
buying in the U.S. Congress years
before the Koreagate affair became
public but had concealed the informa-
tion from the Justice Department.
Now, Pear comes 'along and discloses
the names of current employees, em-
ployees that the agency is trying to
protect their names. They are saying
that we do not want those names dis-
closed, employees that, in fact, are in-
volved in the CIA today; employees,
when he publishes their names, that
meet, as a consequence of his publica-
tion, five of the six standards set out;
that is, he intended to publish their
names, he knew they were agents, he
intended to disclose what their names
were, he, in fact, knew that they were
agents working for the-agency, and so
on, and he had reason to believe-no
one could doubt, it seems to me, that if
you publish the name of an agent op-
erating in South Korea that you are
not Jeopardizing that agent. But he
did it for a reason totally unrelated to
disclosing or hurting the national se-
curity. He did it for the reason to un-
cover Koreagate in the U.S. Congress.
Now, would he be subject to going to
Jail under your law?
Mr. JACKSON. My offhand judg-
ment is no. You would have to first es-
tablish that he acted in the course of
an effort or pattern of activity and in-
tended to identify and expose covert
agents. -
Mr. BIDEN. If-the Senator will stop
there, he clearly did that. It is beyond
question he did that. I will tell you
how he did it, if you give me just a
moment.
Mr. JACKSON. His purpose was not
to expose covert agents.
Mr. BIDEN. Sure it was. His purpose
was to disclose those agents by the
mere act-all of our testimony is re-
plete in the Judiciary Committee and
S 1247
in the Intelligence Committee that the
intent provision is met by the mere
fact of disclosure. Otherwise, why
would. he have disclosed unless he in-
tended to disclose? There is no ques-
tion about that.
The pattern of activity by the Jus-
tice Department testifying before our
committee is established not by a
series of publications but by a series of
activities that involve the investigative
process of determining whether or not
the person is an agent. So he went
around and asked a whole bunch of
people, "Is this guy an agent? What is
he involved in?" And so on. That es-
tablishes the pattern of activity. There
is not any question about that.
Mr. JACKSON. Clearly, you cannot
in one breath turn around and say
that it was his sole purpose to uproot
corruption and then that his real pur-
pose was to disclose agent identities.
That is what a' Jury would have to
decide on the basis of all six elements
that would have to be proved-wheth-
er it was his purpose to uproot corrup-
tion to disclose the identity of individ-
uals as covert agents.
Mr. BIDEN. You see, that is the
point. You are, saying in effect we
should 'apply an intent standard. You
say the reason to believe standard
allows a prosecutor to introduce in evi-
dence the following , evidence: I say,
"Did you not ask the Agency whether
or not this would impair or Impede?,"
and he said "Yes. I went out and asked
the Agency: 'What happens if I pub-
lish the name of Je Doaks, an agent
in Korea?"
Surely.. what the, Agency says is,
"You will be ir#pairlng or impeding."
And the defendant comes back and
says, "But that is not my intent. My
intent is, do you not realize these guys
are involved in bribery, in bluffing the
Congress? These guys are involved in"
so on and so forth.
Mr. JACKSON. I think the Jury
could determine, certainly, his objec-
tive, which is certainly different from
the Agency. He is not an investigative
Journalist. His objective was to uproot
corruption, and certainly you would
not have difficulty proving that.
If, incidentally, it turns out that the
individual involved is a covert employ-
ee of the intelligence community, you
have not proven a case against him.
Mr. BIDEN. With all due respect,
that is not what they have to prove.
All they have to prove is that he in-
tended to disrupt, impair, or impede.
The intent provision in your lan-
guage only goes to disclosure. All they
have to prove once you get beyond
that, the prosecution, and that is why
the press are so worried about this-all
they have to prove once you get
beyond that is that such disclosure
would impede, whether or not intend-
ed, and there is no'question it would
impede, even if you have a good pur-
pose.
It is clear that it will impede, disclos-
ing the name of four agents in Korea.
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CONGRESSIONAL RECORD - SENATE March 1, 1982
It is going to impede the efforts of the
CIA in Korea. There is no question
about that.
Mr. JACKSON. I just do not agree
with that conclusion because the
whole thrust of it in the suppositious
or hypothetical case you presented--
Mr. BIDEN. Senator, that happened.
Mr. JACKSON. Was he prosecuted?
Mr. BIDEN. No, because there was
not a law like you are suggesting.
Mr. JACKSON. You mean. the
amendment I have suggested. You are
not disagreeing with the law as a
whole?
Mr. BIDEN. No. Just on the reason
to believe standard.
Mr. JACKSON. Bear in mind that
you have to prove that he acted first
of all in the course of an effort or pat-
tern of -activities intended to identify
and expose covert agents simply for
the purpose
Mr. BIDEN. You are adding "simply
for the purpose." That is not what it
says. That is your language. That is
not whit the statute says. You have to
stop where you said to "expose covert
agents," "a pattern of activities In-
tended to identify and expose covert
agents."
Mr. JACKSON. That is what I said.
Mr. BIDEN. You said "sole pur-
pose." Then you go on and read the
qualifying language and it says "and"
You have established the first part,
he intended to disclose their name, be-
cause he did it. He had a pattern of ac-
tivity. He went around and asked 50
people, "Do you know Joe Doaks is an
agent of the CIA?" And so on. That is
clearly establishing the pattern. The
prosecutor established that. Now he
has disclosed the names.
I say to you he disclosed that.
"You knew they were agents. Didn't
you intend to disclose the name of an
agent?"
Of course he has to -say, "Yen."
There is no rebuttal.
Then the language comes into play
that you and I argue about. That is
that it then says, "And, in addition,
with reason to believe that such activi-
ty would Impair."
Mr. JACKSON. May I say that my
answer is that a jury would have to
prove that he did it intending to iden-
tify and expose covert agents. What
he is intending to do is to expose cor-
ruption, and I do not agree with the
press' interpretation of this amend-
ment or that example. I understand
what this hassle is all about, but I also
understand, too, that leaving a loop-
hole here can indeed make it almost
impossible to handle any of these
cases.
Mr. BIDEN. I am not sure how fruit-
ful it is to continue in terms of asking
questions, but let me emphasize again
for the record, for my colleagues in
the Senate. The intent provision clear-
ly, unequivocally, without question,
applies to the issue of identification.
That is the first thing that has to be
met-the second, actually, with the
pattern. That is easy to prove by the
mere fact that you have, in fact,
named the names. You are estopped
from saying you did not intend to
name the names. So the intent provi-
sion is in fact met.
Then you move to the second stage.
Did you, when you published that
name, have reason to believe that it
would hurt, impede, foreign Intelli-
gence activities?
It Is almost impossible to argue be-
cause a Jury cannot decide what your
real intent was. We are saying they
cannot look at your intent. We are
looking at what they had reason to be-
lieve. They have to acknowledge that
reason to believe.
When I expose the name of an agent
In another country, operating covertly
in an area that is important to us,
when I do that, obviously it does not
help the effort in that country, even if
the reason I did it was to expose a
mole, to expose a triple agent, to
expose the Koreagate, a greater pur-
pose. It is impossible to argue. under the
reason-to-believe standard that the de-
fense lawyer for that newspaperman
would say, "Look, ladies and gentle-
men of the Jury, we acknowledge this
hurt, we acknowledge this impeded,
but you have to look beyond that. You
have to look to the greater good."
The presecutor can stand up and
say, "Your Honor, I object. That is ir-
relevant."
The Judge will have to say, "You are
right, Mr. Prosecutor, it Is not relevant
that this man uncovered a triple
agent, that this man was going after
Koreagate, that this man was doing
something which, in fact, in the long
run benefits the U.S. intelligence proc-
ess. That is not admissible."
So what happens? As the defense at-
torney for that newspaperman, what
do I do? I say, "I will visit you in jail. I
will bring you lunch. I will go by and
say hello to your children."
It is clear that he has to have reason
to believe that it would hurt. There Is
no question it hurts, but is that what
we are after here?
What happens in the case of our dis-
tinguished colleagues, former agents
and present agents, who are involved
with these guys, Wilson and Terpil?
What are those guys all about?
Were it not for the vigilant press,
where would we be? I did not hear
anybody in the Agency come and tell
us, "Hey, by the way, Wilson and
Terpil are bad guys. They are talking
to Libya."
I did not hear anybody in this Con-
gress uncover those guys. It was the
press that did it. It greatly benefited
the United States of American intelli-
gence-gathering apparatus. It put us
on the alert as to what we had to be
worrying about.
So what happens? What happens if
those folks are still in the business,
still on that payroll, and a newspaper-
man discloses that?
Look, I am going to yield to Senator
Basnisr in a second, but I want to
make it clear for those of you back in
the offices listening on the squawk
box and those of you who will be
voting on this thing.
First of all, a pattern of activity, I
will read into the record before the
day is over from the record before the
Judiciary Committee a series of
agents' names being disclosed. It is a
series of agents and activities on the
part of a single Investigative reporter
looking for a single name. That estab-
lishes a pattern of activity.
Now you have the first element of
proof.
The second element of proof is that
the person, the investigative reporter.
Intended to publish the name.
Obviously, if they published it and
they knew it was a CIA agent, the
second element of proof is met. They
intended to publish the name.
Now we move from intent-that no
longer is an element In the crime-to
reason to believe.
You have established the pattern,
you have established the intent to
publish the name, and now all the
prosecution has to do is to say. "Ladies
and gentlemen of the jury, did not
David Binder, did not Robert Wood-
ward, would not any reasonable man,"
to use the phrase of my colleagues,
"know that by publishing this infor-
mation they are going to hurt the in-
telligence-gathering capability of the
United States of America?"
Of course they know that.
Now I stand up as the defense coun-
sel for either of those two gentlemen,
and I say, "Ladies and gentlemen of
the jury, of course we knew it would
hurt, but that is not the issue here.
The Issue is they did not intend to .
hurt the overall gathering capability.
What they were going after here is the
fact that there is a mole in the CIA
that works for the Kremlin, that is on
the payroll of the KGB, and that is
what they were going after. They
could not expose that and make their
case absent the exposure of the other
person."
And then the prosecution stands up
and says. "Ladies and gentlemen of
the jury, that is irrelevant. You do not
have a right to look beyond what to a
reasonable man would appear to be
the case on its face."
The fact that Bob Woodward was
trying to expose a mole is irrelevant.
And the court will have to sustain
that.
First of all, the court will not sustain
this at all. It will be declared unconsti-
tutional. But assume it were not. The
court has to sustain It. So that is not a
defense. That is why intent is so im-
portant.
Granted, Mr. President, anyone you .
prosecute under this law is going to
come back and say, "I did not really
intend to hurt. My effort to pull down
the CIA was done in the best interest
of America."
Well, they can make the same argu-
ment on reason to believe. They can
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March 1, 1981 CONGRESSIONAL RECORD - SENATE S 1249
stand before the jury and say, "Oh, it us. They are like everyone else in is called intent. Nothing magic about
is true, I published that name. It is America: When the heat is on, they do it. It need not be pure, it can be
true that I know that 'that person is not like to jump in, like the rest of us. impure. It need not be perfect, it can
operating in Korea or Afghanistan or So, instead of taking a chan6e, I sus- be imperfect. It need not be shown
any other place in the world. It is pert that in some cases, there will be a beyond anything beyond having to
true-but I had reason to believe it chilling effect. And that is not good infer it. Why not stick with that
would help America, not hurt Amer. for America. standard?
ica." Forget the press; forget the first Mr. President, I can tell by the looks
That is a question for the jury to amendment. That is not good for on my colleagues' faces they are think.
decide, just as it is in intent. There is basic, flat-out, old-fashioned Ameri- mg why do I not sit down now? So I
nothing special or unique about the cans, whose security is at stake. will sit down. I yield the floor.
intent provision as being somehow Absent the ability of a third party to The PRESIDING OFFICER (Mr.
immune from that counterargument. look in an objective way as to whether Sncrsox). The Senator from Califor-
That is where "reasonable men" on or not the agency is functioning, we nix is recognized.
the jury and "reasonable women" on are at peril and at risk. And. I might Mr. HAYAKAWA. Mr. President, I
the Jury make that judgement as to respectfully suggest, so is the agency. Implore the distinguished Senator
whether they are lying or telling the It is helpful to them, not harmful. from Delaware, who has defined the
truth. But I sure do not want to be the Sena- problem before us as a matter of se-
But, folks, this is not a matter of se- tor who votes on a piece of legislation, mantles, to leave that determination
mantles. This is not a minor point. assuming it can- sustain constitutional to me, since I have written five books
The last point I shall make is-and muster, which I do not believe it can, on the subject of semantics.
then I shall yield to the Senator from that results in long debates in the edi- BIDEN. If the Senator will yield
New Jersey, or whoever is seeking rec- torial board rooms of the newspapers Mr.
on that point, I often wonder about
ognition-let us assume for the sake of of America as to whether or not they that comment with regard to generals,
argument that the Senator from the go forward with exposing a Wilson or "Is war not too important to be left to
great. State of Washington was correct a Terpil or anybody else. Especially generals," if it would not apply here: moment ago when he said the cases I when they mean sincerely and deeply Is semantics not too important to be
read to him would be matters for the to enhance the capabilities of the in. left to those who wrote books about it?
jury to decide. That, in and of itself. telligence community, to enhance U.S. But I yield to the Senator.
should be reason enough to make us security, to enhance our national in. Mr. HAYAKAWA. Mr. President, I
not go along with the reason-to-believe terest, and have to debate whether a am fascinated by the argument of the
standard, because talk about a chilling reasonable man would or would not distinguished. Senator from Delaware.
effect. Do you want to be the editor of think they should go to jail for this I have not heard such academic hair-
a newspaper in America when your re- effort. splitting since I was a graduate hair-
porter comes to you and says, Hey, Why not do in this statute what we sp split caught since the middle conflict-
decade. d ate stu-
look, I have the biggest case of the do in other criminal statutes and say de theories of literary iI? can blow the KGB operation you are required to have knowledge In applied a poem Interpretation
m
o William
in America wide open. I found out who what you are doing, that you intend to Bas. utler Yeats. I am grateful to the d
the mole is in the CIA." hurt-not intend to publish the name, Butlerhed Senator from Delaware for
Instead of the editor's asking the intend to hurt. reminding me of those dear r dead days
question,"Can you corroborate that, That is a matter for the jury to when I ngs working on my d Ph. D.
what are your sources, how did you decide. That is a matter that prosecu-sident. it seems as though we
get it?" the editor is going to have to tom can make an argument for. That Mr. President, the United States sometimes ha
have
ask the following question: "By the is a matter that is constantly argued naive view d how our Nation e
way, when you expose that mole, are before juries in every criminal case, in n n ceived abroad.
you going to have to expose anybody every court, in every State, at every After all. our country seeks peace.
else in the Agency?" trial. And it can be inferred just as it is As President Reagan noted last seeks
year In
"Well, of course, I am going to have in the Wayne Williams case. It was in-
to mention four other agents who are ferred that he had a premeditated his worldwide address on nuclear
now operating in another country." intent to kill. The jury did not have to disarmament, the United States is not
The editor is going to have to say, have it set out for them, Wayne Wil- an aggressor. Immediately following
"Wait a minute, will that hurt the op- liams saying, "Yes, I intended," or World War II. we alone possessed the
eration in the other country?" someone else saying, "I heard him say atom bomb, and yet we sought world
"Well, yes, it is going to hurt overall. he intended." stability, not world domination.
but think what it is going to mean to It is the same in this case. Why not And our people are charitable. In
the country to expose this mole." err on the side of the Constitution? countless disasters around the world,
Then the editor is going to be Why not err on the side of the first the American people and their Clov-
saying, "Wait a minute, now, I want to amendment? Why, not err on the side ernment have come to the aid_ of the
make sure. Is this first happening on of security? Why not err on the side afflicted.
your watch, not on mine? that everybody, including the agency, go, Mr. President, it is not surprising
"Second, what would a reasonable says will get the job done? that, so often, we cannot comprehend
person think? Would a reasonable If you notice, folks, you will hear the hostility our Nation encounters
person think this is good or bad? throughout this entire debate that abroad. Our Embassies are bombed,
Would a reasonable person think this there is nobody in the agency who has our officials kidnaped, and our policies
will impede or impair? said before any of the committees, "If attacked.
"Regardless of what your intent is, you adopt the Biden language, we In this increasingly tense interna-
you and I are both certain, John Doe cannot get the job done." They are tional atmosphere, thousands of our
Reporter, that we have no intent to saying, "We can get the job done with citizens are courageously serving their
harm America. But what will a reason- it." They are saying, "We like the country in the intelligence-gathering
able person think?" other language better, but we can put operations so important to our nation-
I do not want to be the editor having away all the Agees in the world under al security. These Government em-
to make that Judgment. I do not want Biden's language." It IS a piece of ployees were aware of the personal
to be the reporter having to make that cake-that is my characterization. dangers confronting them when they
Judgment. In spite of the fact-that our "piece of cake," not theirs. elected to engage in intelligence activi-
press is noble and wonderful, I find in So why not err on the side of-main- ties. But they now find themselves
times of crisis, they are not ready to taming what is a standard that has threatened not only from the front,
throw themselves upon a sword. They been in our Anglo-Saxon jurlspruden- but from behind as well; threatened by
tend to be as. cowardly as the rest of tial thought for the past 800 years? It their fellow citizens.
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S 1250 CONGRESSIONAL RECORD - SENATE March 1, 1982
In 1975, American Philip Agee's
Counterspy magazine identified Rich-
ard S. Welch as CIA station chief in
Athens, Greece. Richard Welch was
murdered 1 month after the informa-
tion was disclosed in the Athens Daily
News.
In 1980 another American citizen,
Louis Wolf, revealed the names of 15
alleged CIA agents in Jamaica. Within
a week assassination attempts were
made on 2 of the 15.
Mr. President, we are now approach-
ing the seventh anniversary of the
death of Richard Welch, and still
there are no laws to prohibit the type
of despicable act that led to his
murder. Those citizens who would de-
stroy our intelligence gathering capa-
bilities are still trotting around the
globe naming names and endangering
the lives of conscientious Americans.
I have cosponsored S. 391, the Intel-
ligence Identities Protection Act, so
that we can at last bring an end to this
type of activity. The bill prohibits the
unauthorized disclosure of intelligence
agents and directs the President to
take steps to insure the secrecy of in-
telligence relationships.
Section 601 (a) and (b) of the act set
stiff penalties for those who misuse
their authorized access to classified in-
formation by disclosing the identities
of covert agents.
Section 601(c) targets those who
engage in patterns of activity to iden-
tify and expose covert agents. The lan-
guage originally proposed' by Senator
CsAFEE and approved overwhelmingly
by the House would penalize such per-
sons who have reason to believe that
their activities would harm U.S. intel-
ligence activities.
The Senate Judiciary Committee,
however, decided narrowly to change
the reason to believe requirement to
one of intent. The Government would
have to prove, not that an individual
engaged in naming names had reason
to believe that his activities were
harmful, but that he intended them to
damage . American intelligence oper-
ations.
I favor the language originally pro-
posed by Senator ClAFsE and support-
ed by both the Carter and Reagan ad-
minstrations. The intent standard
would be difficult to prove and would
allow an individual to claim that his
anti-intelligence actions were intend-
ed, not to impair U.S. intelligence ef-
forts, but to expose certain activities
that were improper and worthy of
public discussion. In other words,
whatever the results, the individual
could claim that his intention was
good-indeed, he could say he was
acting from highest motive of patrio-
tism.
Senator CaAFZs's "reason to believe"
standard would deal more effectively
with those who threaten our national
security, while preserving constitution-
al rights. To convict, the Government
would have to prove not only that an
individual had reason to believe that
his activities imperiled foreign intelli-
gence operations, but that beyond a
reasonable doubt: First, there was an
intentional disclosure of information
which identified a covert agent; sec-
ond, the disclosure was made to some-
one not authorized to receive classified
information; third, the person who
made he disclosure knew that the in-
formation disclosed identified a covert
agent; fourth, the person who made
the disclosure was aware that the
United States was taking affirmative
measures to conceal the convert
agent's classified intelligence affili-
ation; and fifth, the disclosure was
made in the course of a pattern of ac-
tivities intended to identify and expose
covert agents.
This language will enable the Gov-
ernment to convict the guilty, while
continuing to allow legal scrutiny of
Government activity. A reporter who,
in the course of an investigation, re-
vealed an agent's identity could not be
guilty under the act, because he would
not meet its pattern of activities re-
quirement.
Mr. President, I commend the Sena-
tor from Rhode Island for introducing
this legislation and for continuing to
press for the best possible language.
Like him, I recognize that if we are to
deter effectively those who would de-
stroy legitimate American activities,
we must have an effective law.
Mr. BRADLEY. Mr. President, the
bill we are presently debating is one of
the most important pieces of legisla-
tion to come before Congress. It deals
with the national security and the
constitutional rights of all Americans.
The issues the bill raises merit rea-
soned debate. And they deserve the
careful scrutiny of every Senator.
This bill is responsive to a grave
problem the U.S. intelligence commu-
nity faces in fulfilling its foreign intel-
ligence responsibilities. In recent years
a small number of Americans, includ-
ing some former CIA employees, have
been engaged in a systematic effort to
undermine our clandestine intelligence
operations by disclosing the names of
agents. Yet so far, none of the people
responsible for these disclosures has
been indicted under the expionage
laws or any other law.
The failure to prevent these wanton
acts underscores the need for a new
law that specifically addresses this
problem. Until we pass such a law, our
intelligence agents will become less
and less effective while at the same
time they will be exposed to increasing
danger. In addition, our relations with
foreign sources of intelligence will con-
tinue to deteriorate because of the
fear these sources feel for their own
safety. Unless we can protect U.S.
agents and their foreign sources from
malicious disclosure, our foreign intel-
ligence activities will be severely im-
paired. And because we will have di-
minishing access to intelligence infor-
mation that is timely and accurate,
our national security will suffer.
Accordingly, I support the bill that
the Judiciary Committee has reported.
This bill makes criminal the disclosure
of intelligence identities in certain
specified circumstances. It applies to
three well-defined and limited classes
of individuals. The first consists of
those who have had authorized access
to classified information identifying
undercover agents. These are primar-
ily U.S. Government officials who
have a need to know the identity of
CIA operatives. Because their access
of the identities of covert agents de-
rives from a position of trust, the bill
penalizes their disclosure of this infor-
mation most heavily.
The second class also consists of in-
dividuals who have had authorized
access to classified information, but
not necessarily information directly
identifying covert agents. In order for
members of this class to be penalized
under the bill, it must be shown that
they learned an agent's identity as a
result of their access to classified in-
formation.
The third class of individuals affect-
ed by the bill are those who may have
never, had authorized access to classi-
fied information but who, in the
course of an effort to expose covert
agents and with an intent to impair or
impede the foreign intelligence activi-
ties of the United States, disclose in-
formation to unauthorized persons
that identifies an individual as a clan-
destine agent.
I believe the bill as reported has
been carefully considered and skillful-
ly drafted. It affords appropriate pro-
tection to intelligence agents by
making criminal those disclosures
which clearly represent a conscious
and pernicious effort to identify and
expose covert agents with the intent
to damage the national security.
At the same time, the bill avoids in-
fringing the constitutional rights of
innocent Americans and unduly im-
peding the public's right to know. In
particular, it is drafted so that casual
discussion, political debate, the legiti-
mate activities of journalists, or the
disclosure of illegality or impropriety
in Government will not be inhibited
by enactment of this legislation.
Mr. President, it is essential that
this last feature of the bill be pre-
served. There is no doubt that we need
effective prohibitions on malicious dis-
closures of the identity of intelligence
agents. But there is similarly no doubt
that we must preserve the fundamen-
tal right of free speech guaranteed all
Americans by the first amendment.
And we must jealously guard the im-
portant role played by the press in ex-
posing the truth.
S. 391 as reported strikes a proper
balance between protecting the men
and women who risk their lives as
covert agents and guarding the inter-
est all of us have in freedom of speech
and a free press.
Substituting language from the
House-passed bill as proposed in the
Chafee amendment would upset this
balance and I must oppose it.
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March 1, 1982 CONGRESSIONAL RECORD - SENATE
In the case of individuals who may
never have had access to classified in-
formation, the Chafee language re-
quires only proof of reason to believe
that disclosures would impair or
impede intelligence activities.
The bill before us requires "Intent."
I am concerned that substituting the
"reason to believe" for the "intent"
test would chill significant public
-debate on Government activities even
where the purpose of the.debate was
to expose serious impropriety.
The reason to believe standard also
risks imposing criminal sanctions on
those who disclose information of a
purely factual nature which they be-
lieve the public has, a right and a need
to know. The penalty would apply to
situations in which the identification
derives entirely from published U.S.
Government documents and where the
disclosure would not place any lives in
jeopardy. Finally, the House bill would
impose criminal sanctions not only on
those in the business of naming
names, but also on publishing activi-
ties fully protected by the first amend-
ment.,
Mr. President, there is no need for
us to substitute "reason to believe" for
"intent." The administration is on
record as stating either version of the
bill is acceptable and will be enforce-
able. In a letter to Chairman Bos.nxn
of the House Intelligence Committee,
CIA Director Casey stated he could
support the Senate Judiciary Commit-
tee version. The Justice Department
has indicated ? their agreement with
Mr. Casey's position and the hearing
record on this bill fully confirms that
either version will do the job.
If both versions are acceptable to
the agencies they are intended to pro-
tect, why then should we risk needless-
ly infringing on freedom of speech and
freedom of the. press?
Proponents of the reason-to-believe
test tell us that their version' affords
ample protection for the press because
of the other protections of the bill. In
fact, these other conditions simply de-
scribe the activities of an investigative
journalist
Senator BIDEN has gone over this
point in some detail but let us go
through it once more and perhaps the
proponents of the amendment could
concretize this for us by responding to
a few questions that are directed at
specific newspaper articles.
First, let us consider "pattern of ac.
tivities." This requirement is supposed
to provide protection for those who
argue for the reason to believe stand-
ard as opposed to the intent standard.
Instead, "pattern of activities" is
simply a definition of exactly what an
investigative reporter does when on a
story such as the current New York
Times effort to find out whether any
CIA officials worked with former intel-
ligence agents Wilson and Terpil in re-
cruiting and training Americans and
foreign nationals for terrorist activi-
ties.
A second requirement is that the in-
dividual disclosing the agent's Identity
have reason to believe that the disclo-
sure will harm U.B. intelligence activi-
ties. But the CIA asserts that when-
ever a covert agent is identified it be-
comes harder to recruit new agents.
Based on the CIA position, a reason-
able person would have to conclude
that any disclosure of a possible CIA
operative would harm U.S. intelligence
activities. Moreover, most journalists
would check with the CIA before pub-
lishing a story and would invariably be
told that disclosure would cause injury
to the agency. Hence, it is difficult to
imagine -a situation in which this con-
dition would not be met. ,
The third criterion for liability
under the Chafee language is that the
individual discloses information that
identifies an individual as a covert
agent. This simply requires that a
story be factual-a condition that the
media itself imposes on investigative
reporting.
The fourth criterion is that the dis-
closure be unauthorized. Repeating
the name of an agent to an editor or
printer would constitute, such disclo-
sure.
The fifth requirement is that the in-
dividual knew that a covert agent was
being identified: This condition would
be met by the story thatthe individual
was an undercover CIA agent.
Finally there. is the requirement
that the individual. knew that the
United States is taking, affirmative
measures to conceal the agent's identi-
ty. Any reporter would know that the
CIA wants to conceal the identity of
all covert agents. Again. it is hard to
conceive of circumstances where a
piece of investigative journalism about
an intelligence operative would not
satisfy this condition.
In sum, the reason-to-believe stand-
ard would cover virtually all disclo.
sures by an investigative reporter in-
volving intelligence agents.
Proponents of the reason-to-believe
version assert that it is not necessary
to name names. that responsible jour-
nalists do of name names. That is
simply not the case. I have here arti-
cles and books by responsible journal-
ists and authors which include names
of covert agents as defined in the bill.
I would like the proponents of the
Chafee amendment to explain to me
whether the authors of these articles,
which seem to respond to legitimate
concerns of the public and their right
to know, would be criminally liable
under the terms of, this amendment.
Specifically I would like to know:
Do they believe that the article or
book should have been published with
the names included?
Do they believe that the publication
would be .covered by S. 391 with the
reason-to-believe standard? If not, why
not?
Mr. President, if I could have the at-
tention of the floor manager of the
Chafes amendment, I wish to pose
these questions to him and have him
S 1251
respond only to clarify the Record as
to what his intent is in proposing the
reason-to-believe amendment.
I have with me today fewer articles
than I did the last time we discussed
this situation on the floor. I now have
only 10 articles with me and I wish to
ask the Senator to answer a couple of
questions about each of these articles
so that we might clarify the intent of
his amendment. The questions are:
Does the Senator believe that the ar-
ticle or book should have been pub-
lished with the names included and
does he believe that the publication
would be covered by S: 391 with the
reason-to-believe standard? If not, why
not?
I can provide the Senator with a
copy of each of the articles. or I would
be pleased to read the article to him or
read a summary of the article, but I
would like to get this clarified for the
Record. Which would the Senator
prefer to do?
Mr. CHAFEE. Why do we not have a
look at the article? I am not at all fa-
miliar with what the Senator is dis-
cussing. And why does he not send it
over or let me take a look at it if I
could, please?
Mr. BRADLEY. I ,have 10 articles
from the New York Times, the Wash-
ington Star, and the Washington Post,
each written by . a journalist and the
question is: Does the Senator believe
that the article or book should have
been published with the names includ-
ed? Does he believe that its publica-
tion would be covered by S. 391 with
the reason to believe standard? While
I am waiting for them to be Xeroxed,
let me summarize the first article:
It is a New York Times article dated
December 6, 198L
The PRESIDING OFFICER. If the
Senator from Rhode Island-
Mr. CHAFES. Mr. President, if I
could interject one question, if I
might, I would be' interested in the
Senator's viewpoint as to whether it
would be covered by the intent statute
since the Senator has indicated he is
for the intent statute, and he is obvi-
ously familiar with that. I would ap-
preciate it if he would give his views as
to whether it was covered, and answer
the same question as to intent that he
is asking of me with regard to reason
to believe.
Mr. BRADLEY. I would be pleased
to respond. We will go article by arti-
cle. The first article, as I say, is an ar.
ticle in the New York Times of Decem-
ber 6, 1981. This article details how
many former U.S. intelligence opera-
tives have entered into profitable busi-
ness arrangements in other countries.
According to the author, Jeff Oerth,
their success is derived from their spe-
cial secret access to foreign officials
and to the sensitive information they
gained in their Government service. It
names several people the author char-
acterizes as former agents and de-
scribes their present business activi.
ties.
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Now, to the Senator the questions
are: Do you belive the article or books
should have been published with the
names included?
Second, do you believe the publica-
tion would be covered under the
reason-to-believe standard?
Mr. CHAFEE. That one is easy. As
the Senator knows, the statute only
covers covert agents. It does not cover
former covert agents
Let us have the next one.
Mr. BRADLEY. So that the author
in this case would not be subject to
the law, is that right?
Mr. CHAFER That is true under
either statute.
Mr. BRADLEY. The reason to be-
lieve-
Mr. CHAFES. Or the version that
came out of committee.
Mr. BRADLEY. Very well.
The second article is a New York
Times article dated September 14,
1981. This is an article by Phil Taub-
man which discuss weaknesses in U.S.
laws and policies governing the trans-
fer of American arms and technology
abroad, the lack of prohibitions on the
training of Terrorists or the sale of
arms or explosives by U.S. citizens.
The article names several former
CIA officials whom the author identi-
fies as possibly involved in such activi-
ties, including Edwin Wilson.
The question to the Senator is: Do
you or do you not believe the article or
book, this article, should have been
published with the names Included?
Do you believe the publication would
be covered by the reason to believe
statute? If the Senator would prefer to
wait until the articles are Xeroxed-
Mr. CHAFEE. I would prefer to
answer them as the articles came off.
I would prefer if the Senator from
New Jersey would refer to the defini-
tions in the committee bill, by the
way, so that his questions are not
really directed against the so-called
Chafee amendment. Then he would
see that they are directed against the
bill itself.
If you will note on a copy of the leg-
islation in section 606 it goes into defi-
nitions. It states:
The term "covert agent" means an officer
or employee of an Intelligence agency or a
member of the Armed Forces assigned to
duty with an intelligence agency.
So by definition the article he was
reading does not deal with an officer
or employee of an intelligence agency.
He himself said "a former agent of the
CIA." So clearly that example does
not apply.
The news stories of the Wilson and
Terpil cases have been constantly
cited as being imperiled by passage of
this legislation. That is absolute non-
sense. The people who say this have
not read the legislation. Wilson and
Terpil were former agents, and disclo-
sure of their names would not be pe-
nalized under this bill.
Mr. BRADLEY. The third article,
New York Times, November 1, 1981, is
an article again by Phil Taubman in
which he details how again former
U.S. intelligence agents assisted
Libya's intervention in Chad.
The PRESIDING OFFICER. May I
interJect to the participants and
remind the participants, even though
it may not be necessary, that the Sen-
ators in debate under the rule should
address the Presiding Officer and not
individual Members of the Senate.
The Senators should address their
questions to another Senator through
the Chair.
Mr. CHAF'EE addressed the Chair.
The PRESIDING OFFICER. The
Senator from Rhode Island.
Mr. CHAFEE. Mr. President, in
answer to the question posed by the
Senator from New Jersey, again the
answer is in the question itself where
the Senator from New Jersey referred
to a former employee of the CIA. That
case, of course, Is covered by the defi-
nition which we previously discussed
in section 606, with the definition of
the term "covert agent."
Mr. BRADLEY. A fourth article, Mr.
President,- I would pose the question,
this is from the New York Times of
October 24, 1981, an article by Stuart
Taylor which identifies an additional
actor In the Wilson-Terpil investiga-
tions.
The PRESIDING OFFICER. The
Senator from Rhode Island.
Mr. CHAFEE. Mr. President, I am
not clear on whether that is the com-
pletion of the question. Obviously the
question is covered, as we say, as I
have stated several times here, by the
definitions in the act. This act only ap-
plies to active officers or employees of
an agency in the case the Senator
from New Jersey cited.
Mr. BRADLEY. Mr. President, the
fifth article is from the New York
Times. of December 4, 1981. This is a
story by William Schmidt. It identifies
Eugene Tafoya, accused of murdering
a Libyan national, as a self-styled
covert agent. Does the Senator believe
that this article should have been pub-
lished with the name included, and
does he believe the publication will be
covered under the Chafee amend-
ment?
Mr. CHAFEE. Apparently this indi-
vidual claims to be a covert agent of
some type. Anyway there is no sugges-
tion that this individual is now an
agent of the CIA. But as the distin-
guished Senator from New Jersey
knows, if perchance this individual
should be on active duty or an employ-
ee of an intelligence agency, this does
not by itself mean the disclosure of
that name subjects the discloser to the
punishment in the act. There are
other elements to be proved.
Mr. BRADLEY. In this particular
article let me read the paragraph that
I am especially interested in knowing
the Senator's opinion about. The
author of the article says:
Mr. Tafoya testified that not only did he
shoot Mr. Zagallai in self-defense in a strug-
gle, but that he also believed at the time he
was on secret assignment from the CIA.
Does the Senator believe, Mr. Presi-
dent, that the publication of this arti-
cle by William Schmidt is covered by
S. 391 with the reason to believe
standard?
Mr. CHAFEE. This individual is not
an employee of the CIA, so his case is
not relevant.
Mr. BRADLEY. So the Senator is
saying that this article would not vio-
late the reason to believe test because
the named CIA official is, in fact, not
a member of the CIA, is that correct?
Mr. CHAFEE. Not so. But that is the
easiest and quickest exception to the
various standards of proof that have
to be met. In other words, if the
person is not an employee of the CIA,
then he is out. That does not mean if
he is an employee of the CIA that
whoever wrote the article can be pros-
ecuted. There are the other issues that
we mentioned before.
Mr. BRADLEY. Such as pattern of
activities.
Mr. CHAFEE. Mr. President, I am
confused as to the question, which
does . not seem to be coming through
the chair.
Mr. BRADLEY. Mr. President, let us
go to the sixth article from the Wash-
ington Star, August 17, 1978. This arti-
cle is by Leonard Curry. He states that
the former chief of station in Saudi
Arabia, Raymond Close, went into
business with Kamal Adham a former
CIA connection in Riyadh. According
to the author, the Joint business ven-
ture between a former station chief
and a top foreign government spy is
the first known case of its type. The
story also quotes a former U.S. Am-
bassdor as saying he questions wheth-
er CIA agents ever really break their
ties with the agency.
Now, the question is: Does the Sena-
tor believe that this publication would
be covered under the reason to believe
standard?
Mr. CHAFES. Mr. President, the dis-
tinguished Senator from New Jersey is
making a mistake in suggesting that
there is a different standard of proof,
as far as these particular matters go,
under either the reason to believe or
the intent standards. Under either
statute, that is the statute which in-
cludes the committee language or the
statute which would include the
amendment language, there can be no
prosecution of a disclosure of a name
of someone who is not an employee of
the CIA or of an intelligence agency.
So this Mr. Raymond H. Close, in the
article I believe the Senator is refer-
ring to, which was published in August
of 1978 had retired or stepped down 8
months previous to his name appear-
ing in print. So, again, according to
the definitions, this disclosure would
not be covered under the statute,
whether it is the intent statute or the
reason to believe statute.
Mr. BRADLEY. Mr. President, I ask
the Senator to further clarify what he
means by an active agent.
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Mr. CHAFEE. Mr. President, it is
not what I mean by an active agent, it
is what the statute says. The statute
has a definition which we have re-
ferred to several times. A covert agent
means "an officer or employee of an
intelligence agency." An officer or em-
Iiloyee. Those are words of art. They
are not vague. You are employed. You
are in the employ of an intelligence
agency.
Then it further goes on to say:
(i) whose identity as such an officer, em-
ployee, or member is classified information,
and
(ii) who is serving outside the United
States or has within the last five years
served outside the United States.
So those are not the definitions of
the Senator from Rhode Island. Those
are the definitions In the statute.
Mr. BRADLEY. Mr. President, I
would Just ask one further clarifica-
tion. The article I have quoted by Mr.
Leonard Curry quotes an Ambassador
as saying he questions whether agents
ever really break their ties with the
agency. If an agent is no longer an em-
ployee, per se, but has an arrangement
with the agency whereby he receives
any type of compensation, would he
come under the definition of officer or
employee?
Mr. CHAFEE. The description that
somebody never breaks their ties, I
suppose, can be applied to anybody. I
suppose distinguished graduates from
Princeton never break their ties with
Nassau ' Hall. They are there. But
hardly would the person be referred to
as a student of Princeton or an em-
ployee of that great university. They
have ties of sentiment and ties of nos-
talgia, but not necessarily ties of em-
ployment. The statute is clear. Covert
agent means an employee. And an em-
ployee is a legal term, which I do not
think we have to go into all the facets
of here, but it can be determined by
statute and by regulation.
Mr. BRADLEY. Mr. President, one
further clarification: Is an employee
or officer someone receiving a pen-
sion?
Mr. CHAFEE. Well, Mr. President, I
think again that is very clear. That is
very clear in all law that someone re-
ceiving a pension is not an employee.
He is entitled to that pension whether
he shows up for work or not. He is not
even expected to show up for work. So
there is no question. I do not think
there is any serious question whether
a pensioner is an employee of a firm,
company, the U.S. Government, or
whatever it might be.
Mr. BRADLEY. Mr. President, I
thank the Senator. One last clarifica.
tion on the definition of covert agent.
The bill lays out three major headings
under the section defining "covert
agent." The third heading, and I
would like to read it and ask the Sena-
tor to explain his understanding of it,
says:
The term covert agent means-
"(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.
Now the Senator has said that
former agents are not included I do
not understand the third definition of
covert agent if that is so. I hope the
Senator can explain that for me.
Mr. CHAFES. Mr. President, we are
now dealing with a whole new class of
individual that was not in the previous
groups that were discussed by the Sen-
ator from New Jersey. Those were US.
citizens and these, as it makes clear,
are not U.S. citizens. These are re-
cruited agents, not necessarily employ.
ees, of an intelligence- agency. So this
is a distant group that falls under a
separate classification.
Mr. BRADLEY. I would again cite
the article by Mr. Leonard Curry, in
which he refers to a Sheik Kamal
Adham. Adham is reportedly a CIA
connection in Saudi Arabia. Under the
third definition of covert agent, if it
was revealed Adham is no longer but
he was formerly an agent, would the
author of this article be subject to
prosecution under the reason-to-be-
lieve standard? Mr. President, I hope
my colleague would comment on my
question.
Mr. CHAFEE. I wonder-if the Sena-
tor would repeat his question?
Mr. BRADLEY. Of course.
Mr. President, under section (c), the
third definition of covert agent, as the
Senator correctly points out, applies to
other than U.S. citizens and says that
a covert agent means' someone who
presently or. formerly had an intelli-
gence relationship with the. United
States.
This article in the Washington Star
of August 17 identifies the former
Chief of Station in Saudi Arabia,. Ray-
mond Close, and states that he went
into business with Sheik Kama]
Adhom. The article says that Adham
reportedly was a CIA connection in
Saudi Arabia.
The Question Is, assuming Adham
was formerly or is presently connected
with the CIA, "Is the author liable
under the Chafee amendment?"
Mr. CHAFEE. The thrust of the ar-
ticle that the Senator from New
Jersey is referring to, as I have read it,
deals with Mr. Close, who is a U.S. citi-
zen but no longer an employee of the
Agency. So we are clear on him. He is
not covered under the bill.
Now, in the course of the article,
which was written some 3 years ago, it
refers to another gentleman who, it al-
leges, is a Mr. Adham. The article says
he is reportedly a former CIA agent in
Saudi Arabia.
The Senator from'New Jersey asks,
Does the disclosure of his name sub-
ject the author to a penalty? The
answer to that, of course, depends on a
whole series of factors.
First, was this gentleman engaged in
a past or present intelligence relation.
ship with the United States and was
S 1253
his name classified information? I do
not know. That would have to be as-
certained.
Second, you have to go through the
other elements of the proof required,
which the Senator from New Jersey
listed earlier, the so-called six ele-
ments of proof. One of those elements
of proof evolves around a pattern of
activity to identify and expose covert
agents.
If Mr. Leonard Curry had written a
whole series of articles dealing with
probing and the disclosure of the
names of agents and they were indeed
agents, active agents, or had been
agents, foreign agents, as this gentle-
man here, whom we do not know, then
it is possible he could come under the
provisions of our bill. That presents a
possibility. That well could be. But we
do not know.
As I say, we have to ascertain wheth-
er the elements, the six elements of
proof, have been met, including this
particular one I referred to as regards
whether he ever was an agent of the
Intelligence Agency of the United
States.
Mr. BRADLEY. Mr. ` President, I
would ask one more question of the
distinguished Senator from Rhode
Island. Assume that, Adham was an
agent. Assume the reporter asked 20
people and ascertained that he was an
agent. Would Mr. Leonard Curry be in
violation of the law under the reason-
to-believe standard?
Mr CHAFEE. Mr. President, if you
take hypothetical cases, they all get
difficult. I think an easier case would
be a series of articles disclosing the
names of a series of agents. That
would be a clearer cut case, assuming
that the six elements of proof had
been met.
Indeed, they might well be met not
Just under the reason to believe, but
under the intent standard, which is
the committee language.
So I cannot definitely say yes or no
in answering the question regarding
the investigative work that Mr. Curry
might have undertaken to ascertain
Mr. Adham's intelligence connection.
First of all you would have to find out
whether he was ever an agent-maybe
he was not.
Mr. BRADLEY. Mr. President, I
think I have heard something that is
new to me. Maybe the Senator did not
mean to inject it. Did I hear the Sena-
tor imply or say that there can never
be an isolated article, one isolated arti-
cle, that would violate the reason-to-
believe standard; that there has to be
a series of articles identifying a series
of agents? Those were the Senator's
words, if I recall.
Mr. CHAFEE. No, Mr. President, I
think if the Senator from New Jersey
studies the Record, I did not say that
there could never be a single article. I
said an easier case would be one which
involved a series of articles disclosing
the. names of a series of agents. In
other words, I will refer the Senator
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from New Jersey again to the defini-
tions in which it states:
The term pattern of activities requires a
series of acts with a common purpose or ob-
jective.
Let us take a single situation, where
a reporter engaged in a series of acts
such as following a suspected agent to
work, seeking his telephone number,
making a whole series of background
checks on him, checking his prior ac-
tivities in the United States, where he
took his training, and so forth. If one
went through an elaborate process like
that, and, indeed, knew that the
person involved was an agent, then
disclosing it as a part of this series of
acts would violate the provisions of
this bill.
Mr. BRADLEY. Mr. President, this
does not refer to a U.S. agent. This
refers to a non-U.S. citizen who once
had a relationship with the CIA. Does
the Senator think personally that if
Mr. Adham was an agent that this ar-
ticle violates the reason to believe
standard?
Mr. CHAFEE. Mr. President, the
answer to the Senator from New
Jersey cannot be given by me on the
basis of what I see here.
We previously discarded all the
other cases presented by the Senator
from New Jersey because in none of
them was the individual identified as
an employee of the CIA.
Here we are dealing with a category
where the individual is not a U.S. citi-
zen and might possibly had a, past con-
nection with the CIA. That is un-
known.
So, first of all, we have to ascertain
that fact. Even if that were so, and let
us assume it for the sake of argument,
that he was a former employee of the
CIA, then you would have to find out
what kind of a pattern of activities Mr.
Curry followed in writing this article.
If he stumbled on a name and wrote it
up without a whole series of checks to
find out what he was, then that would
be one act. But here he does not even
allege flatly that he had a CIA connec-
tion. He says reportedly, so presum-
ably he does not know and has not
done that extensive background
checking. On this basis, I do not be-
lieve Mr. Curry is covered under our
bill.
Mr. BRADLEY. Mr. President, this
is precisely the kind of question which
has troubled me. This is the kind of in-
formation that I believe the public
does have a right to know.-However, I
will not discuss this article at greater
length.
Mr. President, I would like to go on
to a Washington Post article of July
11, 1979.
Mr. CHAFEE. Mr. President, might I
interject? If the Senator is troubled by
this situation, his troubles are not con-
fined, Mr. President, to the language
of the Chafee amendment.
He is troubled by the whole bill be-
cause, under the intent provision,
what he claims is true as well. The
definitions I am reading from are not
from the Chafee amendment, they are
from the legislation that was reported
out by the Judiciary Committee. It
may well be that the Senator has trou-
ble, as I say, with the whole bill. If so,
let him say so and let the world know
it. But let him not direct his objections
to the reason to believe section alone.
If he is troubled by the whole bill,
then he is troubled with trying to get
at the very problem we are trying to
solve, which is the disclosure of
agents' identities.
Mr. BIDEN. Will the Senator yield
for a question?
Mr. BRADLEY. Mr. President, I do
not think the Senator from Rhode
Island had heard my entire speech. I
said unequivocally that legislation of
this type is necessary. I said it is my
intent to protect our agents abroad,
but that we have to balance on pro-
tecting our agents with preserving free
speech and a free press, and it is,
indeed, the bill that came out of the
Judiciary Committee that I support
without the Senator's amendment. It
is that bill that has the support of the
Justice Department and the Agency.
So, I think it is incorrect for the Sena-
tor to imply that I do not strongly
support the protection of our agents.
I have posed a series of very specific
questions trying to clarify what the
Senator means, in real terms, by the
reason to believe standard. I frankly
do not know any effective way to do
that other than to give specific exam-
ples and have the proponent of the
reason to believe standard say wheth-
er he thinks it applies or not. That is
the whole purpose of this exercise.
Mr. CHAFEE. Mr. President, no one
was challenging the Senator's concern
about protecting the agents. All I am
saying is that he has indicated he has
trouble with the response that I gave
to the article he produced by Mr.
Leonard Curry in the Washington
Star of August 19, 1978. My answer
was that if he has trouble, his trouble
does not revolve around the reason to
believe language. That is not what pre-
sents the trouble for the Senator, as I
see it. It is the language of the statute
itself. Whether you take the intent or
whether you take the reason to be-
lieve, the same difficulties arise.
Mr. BIDEN. Will the Senator, from
New Jersey yield for a question?
Mr. BRADLEY. I am pleased to
yield for a question.
Mr. BIDEN. Mr. President, the Sen-
ator from New Jersey has just been re-
butted on the grounds that the prob-
lem does not relate to reason to be-
lieve versus intent. Is it not true, in
the cases he has put forward, that the
reporter reporting those incidents
could have intended in fact to help,
not hurt, move forward, not impede,
the national intelligence capability of
this country?
Mr. BRADLEY. Yes, Mr. President.
Mr. BIDEN. They could have and
should have had reason to believe that
it would, in some aspect of it, have
been detrimental. They could have
reason to believe that by identifying
the name of an agent, present or
former, it would in fact hurt that
person or hurt that particular effort
but may very well, in the total scheme
of things, be incredibly helpful.
Mr. BRADLEY. Mr. President, the
Senator is correct. That is exactly the
situation with the former Saudi agent
this article refers to.
Mr. BIDEN. So there is a distinct,
real difference. The Senator could
very well have trouble with reason to
believe in these cases and not at all
have trouble with the intent provision.
That is what this is all about.
I thank the Senator for yielding.
Mr. BRADLEY. Mr. President, while
I am sympathetic to the desires of my
colleagues to afford maximum protec-
tion to our covert intelligence person-
nel. I remain unpersuaded of the need
for. the reason-to-believe standard. It
does not provide additional protection
to agents, but it will have a chilling
effect on public debate.
If this legislation passes with this
amendment, many Americans commit-
ted to preserving freedom of speech
and a free press will resist its enforce-
ment and challenge its constitutional-
ity in the courts.
In the final analysis, therefore, the
Chafee substitute language will pro-
vide less-effective protection to our
agents than the version reported out
of the Judiciary Committee with the
Biden amendment. Thus, Mr. Presi-
dent, I urge my colleagues to support
S. 391 as reported with the intent
standard.
Mr.. CHAFEE. Mr. President, I
should like briefly to reply before we
engage in a colloquy.
The distinguished Senator from New
Jersey and the Senator from Delaware
and, I understand, the Senator from
Vermont, although it was not my
privilege to be here during his remarks
because of a prior commitment, insist
that the language that came out of
the Judiciary Committee, affords
better protection for our agents than
the language of the so-called Chafee-
Jackson amendment. They may have
many, many reasons for opposing the
Chafee language but for them to
choose the particular reason that it af-
fords greater protection to our agents
just does not bear up. Distinguished
though these gentlemen are, and I.un-
derstand the Senator from Vermont
has prosecuted thousands of cases, we
have on the opposite side of the ledger
those whose business it is to prosecute
such cases: The assistant attorneys
general and the Attorney General of
the United States. They are the chief
prosecutorial officers of this Govern-
ment. They are not just from this ad-
ministration but from the prior admin-
istration. They have said that the lan-
guage that is embodied in the Chafee-
Jackson amendment is the better lan-
guage from their point of view.
So I say to them, please, gentlemen,
let us not come forward with the sug-'
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gestion that you are supporting lan-
guage that better protects covert
agents. Perhaps your language will
give some protection to agents. I am
not disputing that.
Later these gentlemen quote a letter
from Mr. Casey to the House Intelli-
gence Committee that says that their
language would be adequate. But they
do not go on to say that, in a further
part of the letter from Mr. Casey, the
-administration would far prefer the
Chafee language and has so testified.
It is all in the RacoRD. This is nothing
new we are producing here. The
former head of the CIA for President
Carter, Adm. Stansfield Turner, and
the members of the Justice Depart-
ment have all said the Chafee-Jackson
language is easier to prosecute. It is
clear. So these gentlemen ought to dis-
card immediately the argument that
their language permits the easier pros-
ecution of those who reveal names and
that it provides better protection for
our agents. It simply is not so.
Mr. BRADLEY. Mr. President, let
me read into the record at this point
one or two sentences from the letter
from the Director of the CIA, Mr.
Casey, in which he says:
I must emphasize, however, that the ad-
ministration's preference for S. 391, the
Senate version of the identities bill, remains
unchanged.
I do not see any language here that
says it is far more preferable.
Mr. HEFLIN. Mr. President, I
wonder If the distinguished Senator
from Rhode Island would enter into a
colloquy with me pertaining to some
questions that I have in regard to lan-
guage in this bill.
I notice that the term "covert agent"
is used in each of the three substan-
tive criminal provisions in the bill-
subsection 601 (a), (b), and (c)-and
that it is specifically defined in subsec-
tion 606(4). I ask the distinguished
Senator from Rhode Island whether
use of this term to refer to those
whose identities are being protected
implies that these individuals must be
involved in a particular covert action
before the protective scope of the bill
would apply.
Mr. CHAFEE..I thank the distin-
guished jurist from Alabama for his
very astute question, indicating the se-
riousness which has characterized his
review of the bill we are considering
today.
The answer to the Senator's ques-
tion is no; choice of the term "covert
agent" in no way is to be construed as
limiting protection afforded under the
terms of the legislation to those actu-
ally engaged in a particular covert
action. The legislation is designed to
cover all individuals engaged or assist-
ing in foreign intelligence activities
whose identity is classified and with
regard to whom, at the time of the dis-
closure, the United States is taking af-
firmative measures to conceal such in-
dividual's classified intelligence rela-
tionship. No distinction is drawn as to
whether the individual at the time of
the disclosure was engaged in collect-
ing intelligence, as opposed to being
engaged in covert action, or "special
activities," as it is called and defined in
section 3.4(h) of Executive Order
12333.
Mr. HEFLIN. I thank the Senator.
He made mention in his response of
"affirmative measures"-that is, those
actions which the United States takes
to conceal a covert agent's classified
intelligence relationship. Unlike the
term "covert agent," the term "affirm-
ative measures" is undefined, even
though it is used In each of the three
substantive criminal provisions. I
should like the Senator to explain just
what is meant by the use of the term
"affirmative measures."
Mr. CHAFEE. The Senator from Al-
abama is correct. The term "affirma-
tive measures" is not defined in the
bill. However, the legislative history of
the bill speaks to this question. Both
the Senate Intelligence Committee
report from the last Congress and
more recently the Senate Judiciary
Committee report of this Congress, in-
dicate that the reference to "affirma-
tive measures" Is intended to confine
the effect of the bill to relationships
that are deliberately concealed by the
United States. "Affirmative measures"
could include the use of such tech-
niques as, for example, the creation of
a "cover" identity, such as a set of fic-
titious characteristics and relation-
ships, to conceal the individual's true
identity and relationship to an intelli-
gence agency, or the use of clandestine
means of communication to conceal
the individual's relationship with U.S.
Government personnel, or the restrict-
ing of any mention of the individual's
true Identity or intelligence relation-
ship to classified documents and chan-
nels.
Mr. HIl1F LIN. Does that, then, mean
that the Government will have to
prove knowledge on the part of the de-
fendant of each "affirmative measure"
undertaken by the United States with
regard to a covert agent whose identi-
ty the defendant has disclosed?
Mr. CHAFEE. No. In no way do we
intend to impose such a burden on the
prosecution. Under the terms of this
legislation as drafted, the prosecution
has a heavy burden in meeting six ele-
nnents of proof without imposing what
might be impossible to prove-that is,
a defendant's knowledge of specific af-
firmative measures being taken with
regard to a specific covert agent or
even the fact that all affirmative
measures possible with regard to a
particular covert agent were being
taken at the time of the disclosure.
The Government need only show a de-
fendant's knowledge that the U.S.
Government at the time of the disclo-
sure was taking some steps to conceal
an intelligence relationship. Just as
the "affirmative measures" used for
one covert agent may vary from those
used for another, depending on cir-
cumstances; so, too, proof of knowl-
edge that the United States is taking
S 1255
affirmative measures to conceal an in-
telligence relationship will depend
upon the facts and circumstances of
each case. Such proof could be demon-
strated by showing that a current or
former employment or other relation-
ship of the defendant with the United
States required or gave him such
knowledge. It could also be demon-
strated by statements made in connec-
tion with the disclosure or by previous
statements evidencing such knowl-
edge.
Mr. HEFLIN. I thank the Senator.
His response evokes one final question:
Under the terms of the definition of
"covert agent," the Identity or the In-
telligence relationship of those who
the bill aims to protect must be classi-
fied. Why, then, Is there a need for
the prosecution to prove defendant's
knowledge of "affirmative measures"
undertaken? Does this not render the
prosecution's job virtually impossible?
Mr. CHAFEE. I assure the Senator
that the language of the legislation we
are considering today has been care-
fully crafted. It has been subjected to
the scrutiny of some of the finest legal
minds, within the intelligence commu-
nity, and the Justice Departments of
both the Carter and Reagan adminis-
trations have studied this language
and are of the opinion that the lan-
guage strikes a proper balance be-
tween the need to protect civil and
constitutional rights, while at the
same time providing the Government
with a statute that is effective and en-
forceable. Since we are dealing with
our most fundamental freedom, that
of speech, I do not feel that the
burden placed on the United States Is
too difficult. We have deliberately
made it difficult in terms of elements
of proof so as to insure protection of
that fundamental freedom.
Classification alone would not pro-
vide the kind of insulation. required.
The mere fact that an intelligence re-
lationship appears in a classified docu-
ment does not necessarily constitute
evidence that the United States is
taking affirmative measures to conceal
the relationship. It could mean that or
it could not. For instance, the docu-
ment . could be classified because of
other information it contains. Proof of
the existence of a classified relation-
ship would not be enough. The Gov-
ernment must show in addition, that
the person who made the disclosure
knew that the United States was
taking affirmative measures to conceal
the covert agent's classified intelli-
gence relationship.
Mr. HEFLIN. Mr. President, I appre-
ciate the indulgence and assistance of
the distinguished Senator from Rhode
Island in clarifying some of my con-
cerns in regard to this most vital legis-
lation.
I am supportive of the goals of this
legislation and wholeheartedly com-
mend Chairman THuamoi D; the rank-
ing minority member of the Senate
Judiciary Committee, Senator BIDEN;
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Senator DzirroN, and Senator CHAraa,
for their efforts in this vital area of
legislation and its appropriate and
necessary goals.
Although, I am very concerned as to
whether the objectives of this legisla-
tion will be met by its present lan-
guage. I do not profess to be an expert
in the area of intelligence, nor the in-
terworkings of the Central Intelli-
gence Agency. I must defer to my col-
leagues on the Select Committee on
Intelligence for guidance in this area
of legislation. But, as a lawyer, I look
at an almost insurmountable burden
that a prosecutor would have to meet
in order to achieve a conviction under
this legislation.
The language, in my opinion, in both
the House and the Senate versions of
section 601(c), is potentially cumber-
some, repetitive, and counterproduc-
tive, and I seriously question if its in-
tended purpose, as a deterrent to the
exposure of our intelligence agents
throughout the world. will be accom-
plished. I have spent a great deal of
time in reviewing this legislation and
discussing it with colleagues, repre-
sentatives of the Central Intelligence
Agency, individuals concerned with Its
first amendment ramifications, and
many other interested individuals. Un-
fortunately, like most legislation, this
bill is a result of compromise. which
rarely produces law in its best lan-
guage. As I have indicated previously.
I support the objectives of this legisla-
tion and will vote in favor of final pas-
sage of this legislation, but I have seri-
ous reservations as to the value and ef-
fectiveness of this bill.
I hope that my initial analysis of
this concept, in its present form, is in-
accurate, and that this will be a true
deterrent to the vicious and heinous
disclosures of the identity of our
agents and will achieve the goals that
the administration, the U.S. Senate,
and the proponents of this legislation
seek to accomplish.
In describing committee efforts to
achieve a proposed goal, it is often
cited "that the camel was the product
of a committee whose purpose was to
design a horse." I hope that we are
creating a horse and not a camel.
Mr. BIDEN. Mr. President, I rise to
read into the Racoiw the floor state-
ment by Senator INours who strongly
supports the language that is in the
bill now and does not support the
amendment of the Senator from
Rhode Island. He is unable to be here.
As we all know, he is deeply involved
in preparations for a most distasteful
matter we are about to take up in the
Senate.
Let me read Senator INovua's floor
statement so my colleagues may hear
it:
S. 391 is a significant departure from pre-
vious statutes passed by the Congress to
punish disclosure of information in the na-
tional security field. It would not only
punish publication-of information obtained
from access to classified information, but
would also punish the publication of infor-
mation derived entirely from open, publicly
available sources. This is something the
Congress has never done before, except
during wartime.
When the problem of deliberately expos-
ing the names of agents arose several years
ago, it seemed to result mainly from rene-
gade former agents like Philip Agee who
used information they had obtained while
employed by the CIA. The first bills intro-
duced to deal with this problem focused on
the breach of trust by government employ-
ees and former employees who used their
access to classified information to identify
and expose U.S. intelligence agents. The
main issue at that time was whether to in-
clude in those bills criminal penalties for
outsiders who conspired with, or aided and
abetted, employees and former employees
like Agee.
Unfortunately, experience has shown that
the problem was not confined to the Agees
and their collaborators, but that it also re-
sulted from determined efforts to sift
through public source information to identi-
fy agents. The techniques for identifying
agents from open sources are not perfect,
and mistakes are often made. But the ef-
forts of those who seek, by these means, to
destroy the CIA's effectiveness abroad have
gained enough credibility overseas to pose a
significant danger to the security of the
United States and the physical safety of in-
dividuals In the service of this country.
The task, therefore, has been to develop
statutory language that would deter these
activities without sweeping so broadly as to
inhibit news media reporting, and the rights
of citizens to discuss questions of foreign af-
fairs and intelligence policy. S. 391 as re-
ported by the Judiciary Committee at-
tempts to meet these criteria through adop-
tion of an "intent" standard. Thus, under
the Judiciary bill, disclosure of the names of
agents is criminalized only if done so with
an "intent to impair or impede intelligence
activities."
The language proposed by Senator Chafee
would adopt a lesser reason to believe stand-
ard. Undoubtedly Senator Chafee's lan-
guage would make it easier to prosecute
journalists who disclose the names of
agents. I am concerned, however, that with-
out a requirement to prove intent to impair
or Impede U.S. Intelligence activities, this
legislation will place journalists under too
great a jeopardy of criminal prosecution for
legitimate news reporting.
It is important to understand that there
can be situations where Investigative report-
ing that results in the publication of agent's
identities may serve legitimate public inter-
ests. For example, during consideration of
this legislation last year, the Justice Depart-
ment was asked whether Senator Chafee's
language would cover an Investigative jour-
nalist's reporting the identities of CIA em-
ployees engaged in a scheme to defraud the
government by misusing funds Intended for
covert operations. The response was, In
effect, that prosecutorial discretion would
protect the newsmen in such cases, and that
the Justice Department would not bring
charges even if the facts technically fit the
law. This is precisely why the Intent stand-
ard in S. 391, as reported by the Judiciary
Committee, is so essential. We must insure a
"government of laws, not of men" as the
guarantee for freedom, of the press; reliance
on the exercise of prosecutorial discretion is
simply unacceptable.
It has been suggested that the legislative
history of this legislation can make clear
the meaning of the language, so that legiti-
mate news reporting will not be deterred.
Neither, in my view, is this an acceptable so-
lution. A requirement to prove intent to
impair or impede U.S. intelligence activities
is necessary to insure protection for a vig-
orous free press. If it is necessary to have a
criminal statute to deter the "naming of
names" by a handful of malefactors bent
upon destroying the CIA, it must be framed
in a way most likely to achieve that very
specific objective, without unnecessarily
risking interference with the freedom of the
press.
I strongly urge my colleagues to support
S. 391 as reported by the Judiciary Commit-
tee.
Mr. President, I suggest 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. WALLOP. 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.
Mr. WALLOP. Mr. President, today,
thanks to Senator CnAr'aa, the Senate
will take another step toward giving
the men and women who work as clan-
destine collectors of intelligence for
the United States the legal protection
they have thus far lacked. Today the
United States is the only country in
the world where someone can wanton-
ly disclose the identity of a clandestine
agent and get away with it. It is a trib-
ute to our country that, until recent
years, we did not need laws to pro-
scribe such behavior. Americans just
did not set up private intelligence serv-
ices with the purpose of "blowing the
cover" of the intelligence agencies of
the U.S. Government. In recent years,
however, precisely that has happened.
A few dozen individuals, in consulta-
tion with our country's foreign en-
emies, have published lists of people
purported to be undercover agents of
American intelligence.
In some instances they hit their
mark; in some instances they implicat-
ed people with absolutely no connec-
tion to American Intelligence. But in
all cases they did harm. They endan-
gered individual lives and careers.
Above all, they harmed the security of
every man, woman, and child in the
United States by weakening our intel-
ligence agencies' ability to gather vital
information abroad. In effect these
disclosures of agents' identities have
done much to plug up the eyes and
ears on which we depend to warn of
coming danger. It matters little how
they got those names. They got them
and have used them to do harm. This
we must stop. We must not just give
the appearance of stoppink it, we must
actually have an enforceable law to
stop it.
That is whyI am opposed to section
601(c) of the bill as amended by the
Judiciary Committee. As one of the
original authors of the bill, I once con-
sidered writing the provision like this.
But, for goodness' sake, with 601(c)
like this, the prosecution would have
to prove six elements of the crime si-
multaneously, beyond a reasonable
doubt:
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First, that there was an intentional
disclosure of information which did in
fact identify a covert agent;
Second, that the disclosure was
made to an individual not authorized
to receive classified information;
Third, that the person who made
the disclosure knew that the Informa-
tion disclosed did in fact identify and
disclose a covert agent;
Fourth, that the person who made
the disclosure knew that the United
States was taking affirmative meas-
ures to -conceal the covert agent's clas-
sified intelligence affiliation;
Fifth, that the disclosure was made
in the course of an effort to identify
and expose covert agents; and
Sixth, that the person making the
disclosure did so with the intent of im-
pairing or impeding the foreign intelli-
gence activities of the United States.
To pass the bill in this form would
be to pay lip service to protecting
agent identities while knowing well
that no one would probably ever be
convicted.
The bill's original intention is that
someone ought to go to jail if he has
disclosed the identities of agents "in
the course. of a pattern of activities in-
tended 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." In other words, to
be convicted the suspect has to have
disclosed the identity or Identities not
accidentally, but as part of an objec-
tive pattern of activities of his, and
has to have done it with reason to be-
lieve that it would hurt his country.
Who will argue that such a person
should not be In jail? Even the Carter
administration,. not very sanguine
about this sort of thing, argued that if
anyone ran ,afoul of that standard he
should go to jail.
The legalistic objections to Senator
Cserss's efforts to restore the bill are
a mask for a much more fundamental
position, which we in the Intelligence
Committee have been arguing against
for years. According to this position,
although it may be permissible to
punish people with official access to
agents' identities who disclose those
identities, it is not permissible to
punish people who do not have official
access but who do the same thing.
That, in turn, is based on the pseudo-
constitutional contention that once
any information leaves the Govern-
ment, there is an absolute constitu-
tional right to publish it. But this con-
tention has no basis in the text of the
Constitution or in commonsense. I do
not see such right anywhere in the
Constitution. If anyone sees it, let him
point to the text. Such a so-called
right has even less basis in common-
sense.
it makes no sense to punish those
who disclose names of agents and to
give Immunity to those who publish
them. The distinction between disclo-
sure and publication is a wholly artifi-
cial one. Even when the person who
learns the identity of an agent is dif=
ferent from the person-who discloses it
to foreign enemies, we are compelled
to note that both contribute to the
process by which harm is done. Both
do harm-both should go to jail. Be-
sides, the leakee is usaally in concert
with the leaker. Whether or not the
two parties are in league with one an-
other is a question for a court to
decide.
There is no reason. It seems to me,
to punish the employee of an intelli-
gence agency for a disclosure and not
to punish the person who taken that
information and brings it to the
knowledge of those who are In a posi-
tion to do harm to the United States.
The employee who steals the informa-
tion is moat often not the most impor-
tant person in that chain. He is most
often not the most malevolent party.
To punish only the employee would be
skin to saying that we would go after
only the clandestine agents of foreign
nations and not the case officers who
run them. ,
Moreover, what if Mr. Agee or any
other leaker teaches the art of finding
agents or finding other information to
other people and they, the outsiders,
use the skills to Anther grind out in-
formation harmful to the United
States? Apparently this is precisely
what happened. We now have people
who have never been employees of the
U.S. Government who have set up
what amount to be them own Intelli-
gence service. They use ooh sources
and they try to find sources within the
U.S. Government. Their purpose is to
find out about the activitiesof U.S. in-
telligence agencies and to put a stop to
those activities by exposing them
Why should the American people
put up with that?
Some of the wren against this
provision have argued that there is an
absolute constitutional right for pri-
vate citizens to learn what they can
about our intelligence agencies and to
do what they will with that knowl-
edge. The first amendment's guaran-
tee of freedom of the press, so goes
the argument, allows the press to find
out what it can and publish what it
knows. Thank goodness this Is just
wild talk and not part of the Constitu-
tion. Otherwise the Constitution
really would be a suicide pact. Just
suppose for a moment that the press
and the judicial system took that
statement seriously. Each reporter
would believe it proper to act no dif-
ferently than a Soviet clandestine case
officer. He would recruit agents by
whatever means, and try to penetrate
American intelligence as deeply as he
could to find out the most sensitive in-
formation we had. -Then he would
probably publish it to the world-
names of agents, frequencies, func-
tions of technical means, everything.
In war time such dutiful reporters
would send untold numbers of their
fellow citizens to their graves. The
Justice Department and the courts,
for their part, would-just let it go on,
81257
because, after all, the press' job in a
free society is to infoem the public, is
it not? Well. I think an of that is very
clearly nonsense.
Those who oppose this provision on
the ground that it would muzrle legiti-
mate journalists do a disservice to le-
gitimate journalism. They maintain
perforce that there is no objective cri-
terion for distinguishing between the
enterpirse of Journalism and the work
of private intelligence services working
to impair or impede V.B. Intelligence.
Journalists should feel Insulted by the
comparison. I think that the differ-
ence between legitimate journalists
and the likes of Louis Wolf is obvious,
and that the language which Senator
Cress is trying to restore to the bill
is a good. sound legal test of that dif-
ference and a test which I suggest, Mr.
President, more than just passing, Is
critical to the future of this great Con-
stitution.
Mr. President, I yield the floor.
Mr. CHAFEE. Mr. President, I thank
the distinguished Senator from Wyo-
ming for that outstanding statement. I
personally went to ex, ss my appre-
elation to him for that fine statement
and for his support. We are very grate-
ful. He is an influential Member of
this body and held in the highest re-
spect. The fact that he has chosen to
endorse the amendment that I am sup-
porting gives us a big boost.
Mr. President, I suggest 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. CHAFER. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDIIIG OFFICER. With-
out objection, it is so ordered
Mr. CHAFEE. Mr. President, I ask
unanimous consent that we temporar-
ily lay aside the amendment which we
are presently considering, and take up
my amendment to delete section 603
of this bill.
The PRESIDING OFFICER. Is
there objection? Without objection, it
is so ordered.
8 CTTON 603 Or S. 391
Mr. CRANSTON. I am concerned
about the implications for the confer-
ence situation of time motion of the
Senator from Rhode Island (Mr.
CH~ to strike section 603 from the
bill as reported. As the Senator knows,
the Judiciary Committee, on a strong
bipartisan vote of 11 to 7, specifically
amended the intelligence-agent-cover
requirement in section 603 to exclude
the Peace Corps. In agreeing to that
amendment offered by the Senator
from Montana (Mr. BAucus), the com-
mittee was clearly ratifying and pro-
posing to codify into law the 20-year-
old executive branch policy of com-
plete separation of the Peace corps
from intelligence activities. I worked
very closely with the Senator from
Montana, with the ranking minority
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CONGRESSIONAL RECORD - SENATE March 1, 1982
member of the committee (Mr. BIDEN),
and other Senators on the committee
with regard to the need for this excep-
tion. In fact, earlier this year, I per-
sonally wrote each committee member
as well as the author of the bill (Mr.
CHAFEE) and spoke to many of them in
support of such an amendment.
Mr. President, I ask unanimous con-
sent that several of these letters be
printed in the RECORD at this point.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
UNIVERSITY OF GEORGIA,
SCHOOL OF LAW,
Athens, Ga., May 4, 1981.
Hon. JEREMIAH DENTON,
Chairman, Subcommittee on Security and
Terrorism, Committee on the Judiciary,
U.S. Senate, Washington, D.C.
Hon. JOSEPH R. BIDEN,
Ranking Minority Member, Subcommittee
on Security and Terrorism, Committee
on the Judiciary, U.S. Senate, Washing-
ton, D.C.
DEAR SENATORS DENTON AND BIDEN: I am
writing in connection with S. 391, the pro-
posed Intelligence Identities Protection Act
of 1981. I understand that last year, in con-
nection with a similar bill which ultimately
was not enacted, the Committee on the Ju-
diciary voted, in accordance with the twenty
year old policy of absolute separation be-
tween the Peace Corps and United States in-
telligence, to except the Peace Corps from a
statutory requirement that United States
Government agencies provide assistance to
maintain secrecy of the identity of officers
or employees of intelligence agencies. As
Secretary of State when that policy was
adopted, I would like to explain its genesis
and, in my opinion, continuing vitality.
The Peace Corps, as conceived and main-
tained. expresses the idealism and humanity
of the United States in its relations to other
countries, particuarly those of the Third
World. More than 80,000 Americans, mainly
young, have now served overseas, often
under conditions of hardship, to help meet
the need of Third World countries for
skilled manpower.
To permit the Peace Corps to be used as
cover for United States intelligence would
be inconsistent with this conception of the
Peace Corps. If people in foreign countries
thought it was being so used, whether their
belief was true or false, foreign countries
would not accept Peace Corps volunteers,
and, equally important, many highly moti-
vated Americans would not volunteer for
Peace Corps service.
Those who reject the separation policy
proceed, I suppose, from the premise that if
the United States is to carry out intelligence
activities as it must, those activities require
cover. If the United States excepts the
Peace Corps from any obligation to provide
cover, then where does one draw the line.
First, the United States has repeatedly
stated and assured foreign governments
that the Peace Corps was not and would not
be so used. So far as I know, this distin-
guished it from any other United States
government agency.
Secondly, any effort to use the Peace
Corps as cover would likely be vigorously
opposed by Peace Corps volunteers and
staff and would, therefore, not be feasible.
The argument has also been made that
formal legislation should not legally circum-
scribe the President's discretion. The prob-
lem is that on its face proposed Section 603
of the National Security Act of 1947 could
be interpreted as changing the historic
policy of absolute separation between the
Peace Corps and United States intelligence,
because proposed Section 603 does not
except the Peace Corps. Moreover, in my
opinion any action that suggests that the
United States has modified the policy of ab-
solute separation between the Peace Corps
and intelligence would also increase the
danger to Peace Corps volunteers and staff.
During the last twenty years there have
been Countless examples of volunteers con-
tinuing ko perform their duties despite civil
strife. Indeed, they have many times been
protected by the ordinary citizens with
whom they live and work from any harm.
Instability and terrorism have already sub-
stantially increased the dangers to Ameri-
cans abroad. These dangers Peace Corps vol-
unteers necessarily assume. The United
States should do nothing to increase these
risks.
Thus, I hope your subcommittee will, as
the Judiciary Committee did last year,
adopt an amendment to the proposed Sec-
tion 603 of the National Security Act of
1947 to confirm the separation between the
Peace Corps and Intelligence.
In closing, I would point out that when
the Peace Corps was born it was very clear
that it would not only refrain from any ac-
tivities of an intelligence nature but that it
would be separate from any role as an in-
strument of American foreign policy and
would not become an instrument for use by
our embassies abroad or by the Department
of State. It was felt that it was vital that it
be recognized as an organization solely con-
cerned with the purposes for which the
Congress established it and would have no
other role whatever. The substance of the
recommendation for an amendment to Sec-
tion 603 has been discussed with former Sec-
retaries Cyrus Vance and Edmund Muskie
who endorse it fully.
Respectfully submitted.
Hon. MAX BAUCUS,
U.S. Senate,
Washington, D.C.
DEAR MAX: Attached is a letter to the Ju-
diciary Committee Subcommittee on Secu-
rity and Terrorism from Dean Rusk regard-
ing S. 391, the proposed "Intelligence Iden-
tities Protection Act of 1981". I think it's an
excellent letter, and I hope you'll read it
fully. It makes the case most persuasively, I
think, for exempting the Peace Corps from
the requirement to be added in proposed
section 603 by the bill that each Federal
agency designated by the President provide
all possible cover to U.S. intelligence activi-
ties. .
Last year the Judiciary Committee ap-
proved on a 7-6 vote such an exception to
the predecessor of S. 391 (S. 2216)-also in-
cluding AID in the exception.
I urge that you support a Peace Corps ex-
ception to section 603. According to the Ad-
ditional Views of Senators Thurmond,
Laxalt, Hatch, Dole, and Simpson in last
year's report, they fully supported the tradi-
tional view that "the Peace Corps has never
provided-and should never provide-such
cover and it has been effectively precluded
from doing so by statute. . We do not
wish to revoke the Peace Corps statutory
exemption.... But we do not wish to estab-
lish any further exemptions... ." S. Rept.
No. 96-990, page 39. (Emphasis mine.)
Thus, the opposition in the Judiciary
Committee to an exception for the Peace
Corps last year was based on the predicate
that it already had a statutory exemption.
But that is a mistake. There is not and
never has been any such exemption in law.
There is a long-standing Executive Branch
policy to this effect, but it is a policy that
could be altered at any time unilaterally by
the Executive and one that would seem to
be drawn Into serious question by the subse-
quent enactment of this new cover-giving
obligation.
Although a President could choose to con-
tinue the exemption after enactment of the
bill, the critical point to note here relates to
the perception overseas-which lies at the
very heart of the policy to begin with. As
the Committee report stated at page 20 last
year:
"The rationale for baring such use of the
Peace Corps has been acknowledged by
every President since Its formation. Because
of the vital importance -of Peace Corps Vol-
unteers and staff being able to fulfill their
essential purpose of building links between
the United States and the peoples of devel-
oping countries at the grassroots level, of
providing practical and humanitarian assist-
ance on a voluntary basis and of demon-
strating through the personal commitment
of the volunteers the interest of American
citizens in the welfare of individuals in de-
veloping countries, the Peace Corps also has
been substantially separate from the formal
day-to-day official relations of governments.
It is, has been, and must continue to be
completely and absolutely separated from
all intelligence activities. For that reason,
the Peace Corps specifically bars individuals
with any intelligence background from vol-
unteer or employee positions with the Peace
Corps. In addition to being barred from
using Peace Corps volunteers as cover,
under current Presidential policy directives,
the intelligence community also has been
barred from contacting, questioning or in
any other way of seeking to use volunteers
as intelligence sources. To insure that sec-
tion 503 is not perceived as altering the
independence of the Peace Corps, the Com-
mittee adopted this amendment excluding
that agency from the provisions of this sec-
tion. " (Emphasis added.)
I'd very much appreciate an opportunity
to discuss this matter with you after you've
reviewed this material and before you cast
your vote in Committee. I consider such a
statutory exception indispensable to the in-
tegrity of the Peace Corps, the safety of its
workers overseas, and the future effective-
ness of this very worthwhile program.
Cordially,
ALAN CRANSTON.
JUNE 3, 1981.
Hon. JOHN H. CHAFEE,
U.S. Senate,
Washington, D.C.
DEAR JOHN: Attached is a letter to the Ju-
diciary Committee Subcommittee on Secu-
rity and Terrorism from Dean Rusk regard-
ing S. 391, the proposed "Intelligence Iden-
tities Protection Act of 1981". I think it's an
excellent letter, and I hope you'll read it
fully. It makes the case most persuasively, I
think, for exempting the Peace Corps from
the requirement to be added in proposed
section 603 by the bill that each Federal
agency designated by the President provide
all possible cover to U.S. intelligence activi-
ties.
Last year the Judiciary Committee ap-
proved on a 7-6 vote such an exception to
your predecessor bill to S. 391 (S. 2216)-
also including AID in the exception.
When you reintroduced your bill this
year, you did not include such an exception.
I urge you to reconsider and support a
Peace Corps exception. According to the Ad-
ditional Views of Senators Thurmond,
Laxalt, Hatch, Dole, and Simpson In last
year's report, they fully supported the tradi-
tional view that "the Peace Corps has never
provided-and should never provide-such
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March 1, 1982 CONGRESSIONAL RECORD - SENATE
cover and it has been effectively precluded
from doing so by statute .:.. We do not
wish to revoke the Peace Corps statutory ex-
emption .... But we do not wish to estab-
lish any further exemptions ...." S. Rept.
No. 96-990, page 39. (Emphasis mine.)
Thus, the opposition in the Judiciary
Committee to an exception for the Peace
Corps last year was based on the predicate
that it already had a statutory exemption.
But that is a mistake. There is not and
never has been any such exemption in law.
There is a long-standing Executive Branch
policy to this effect, but it is a policy that
could be altered at any time unilaterally by
the Executive and one that would seem to
be drawn into serious question by the subse-
quent enactment of this new cover-giving
obligation.
Although a President could choose to con-
tinue the exemption after enactment of the
bill, the critical point to note here relates to
the perception overseas-which lies at the
very heart of the policy to begin with. As
the Committee report stated at page 20 last
year:
"The rationale for barring such use of the
Peace Corps has been acknowledged by
every President since its formation. Because
of the vital importance of Peace Corps Vol-
unteers and staff being able to fulfill their
essential purpose of building links between
the United States and the peoples of devel-
oping countries at the grassroots level, of
providing practical and humanitarian assist-
ance on a voluntary basis and of demon-
strating through the personal commitment
of the volunteers the interest of American
citizens in the welfare of individuals in de-
veloping countries, the Peace Corps also has
been substantially separate from the formal
day-to-day official relations of governments.
It 4, has been, and must continue to be
completely and absolutely separated from
all intelligence activities. For that reason,
the Peace Corps specifically bare individuals
with any intelligence background from vol-
unteer or employee positions with the Peace
Corps. In addition to being barred from
using Peace Corps volunteers as cover,
under current Presidential policy directives,
the intelligence community also has been
barred from contacting, questioning or in
any other way of seeking to use volunteers
as intelligence sources. To insure that sec-
tion 503 is not perceived as altering the
independence of the Peace Corps, the Com-
mittee adopted this amendment excluding
that agency from the provisions of this sec-
tion. " (Emphasis added.)
I'd very much appreciate an opportunity
to discuss this. matter with you after you've
reviewed this material. I consider such a
statutory exception indispensable to the in-
tegrity of the Peace Corps, the safety of its
workers overseas, and the future effective-
ness of this very worthwhile program, and I
hope you will agree and, if so, will urge the
Judiciary Committee to except the Peace
Corps.
Cordially,
ALAx CRANSTON.
Mr. CRANSTON. Mr. President,
thus, I was extremely gratified by the
fine leadership of the Senator from
Montana (l,1r. BAVCUS) on this issue
and the committee's action in adopt-
ing the amendment.
However, Mr. President, as I said,
the pending amendment by the bill's
author, the Senator from Rhode
Island (Mr. CHAPEE), is a matter of
concern because of the situation that
would obtain In conference with the
House which has passed H.R. 4 with
section 603 and no Peace Corps excep-
tion. I would, therefore, like to ask the
Senator from Rhode Island several
questions about this conference situa-
tion.
Mr. BAUCUS.: Mr. President, will
the Senator from California yield?
Mr. CRANSTOR. I am delighted to
yield.
Mr. BAUCUS. I have discussed this
matter with the Senator from Califor-
nia and very much share his concerns.
I believe it needs to be very clearly un-
derstood in consideration of this
matter that the Senate's position is to
be strongly in support of an explicit
statutory exception for the Peace
Corps if any legislation is to be en-
acted with an intelligence-agent-cover
requirement along the lines of section
603 in H.R. 4 as passed by the House.
Mr. TSONGAS. Mr. President, as a
former Peace Corps volunteer, I would
say that I very much share these con-
cerns, as I know does my colleague
from Connecticut (Mr. DODD), who
also served as a Peace Corps volunteer.
Mr. CRANSTON. I thank the Sena-
tors for their good words and ask the
Senator from Rhode Island whether
he agrees with the statement of the
Senator from Montana with respect to
the very clear will of the Senate on
the question of the need for an "ex-
plicit statutory exception" if an intelli-
gence-agent-cover provision like sec-
tion 603 is in the bill?
Mr. CHAFEE. I do agree. In fact, I
wish to make very clear that in offer-
ing this amendment, I am not in any
way disagreeing with 'the critical im-
portance of maintaining the historic
total separation of the Peace Corps
from intelligence activities. Indeed, I
fully support that policy. As I ex-
plained-to the Senator from California
(Mr. CRAxszoN) in my letter to him
earlier this year, section 603 of S. 391
would require departments and agen-
cies of the Government designated by
the President to provide assistance for
intelligence cover arrangements. The
section does not require the Peace
Corps or any other agency to provide
cover. Nor does it designate any specif-
ic agency for this purpose. All that the
section does is to provide that cover be
effective. -
In my judgment.. it is unnecessary
and unwise to put into any bill a list-
ing of agencies which are not to pro-
vide cover for intelligence personnel. '
This sort of listing would not be be-
lieved by people overseas-in fact, it
might tend to highlight the suspected
relationship between the Peace Corps,
and the intelligence community. ;At
the same time, it could focus the ii~
tention of terrorists and other parties
on the representatives of other, unlist-
ed Federal agencies who have people
serving abroad.
Recently the Director of Central in-
telligence wrote to the Director of the
Peace Corps on just this issue and
said:
Let me personally emphasize that I do not
advocate and would indeed firmly oppose
any designation of the Peace Corps for
S1259
cover support. I can assure you that I have
no intention of seeking to use the Peace
Corps to provide cover for clandestine intel-
ligence collection, and I certainly do not
intend to change the longstanding CIA
policy barring such use of the Peace Corps.
It is not the intent of subsection 603(a) to
foster secret directives at odds with this
publicly stated policy, which has been in
effect since 1961, the same year the Peace
Corps was established.
It is my understanding that Director
Casey's statement represents the posi-
tion of this administration, and that
this administration has no intention of
departing from this policy in the
future.
In spite of all these assurances, how-
ever, the perception still seems to exist
in some minds that this section of S.
391 adversely affects the Peace Corps.
On this basis, I am prepared to drop
section 603 from the bill altogether as
this appears to be the beat solution to
the problem. I will support this posi-
tion in conference as well.
Mr. President, I ask unanimous con-
sent that my letter to Senator CRAx-
srox, and Director Casey's letters on
this matter, be inserted into the
RECORD.
There being no objection, the letters
are ordered to be printed in the
RecoitD, as follows:
ATTACa7QNT 2 (CsArss)
U.B. SENATE,
Washington, D.C. June 22, 1981.
Hon. ALAN CRANSTON,
Russell Senate O Ice Building, U.S. Senate,
Washington, D.C.
-
DsAa ALAN Thank you for contacting me
regarding the intelligence Identities Protec-
tion Act of 1981 (8.391), and your interest in
a "Peace Corps" amendment to this bill.
As you recall, the Senate. Committee on
the Judiciary last year added such an
amendment to S. 2216, my predecessor to S.
391, when it reported the bill. In reintroduc-
ing the legislation this year, I did not in-
clude a Peace Corps provision for several
reasons.
First, S. 391 requires the President to es-
tablish procedures to ensure that undercov-
er intelligence officers and employees re-
ceive effective cover. This provision of the
bill does not, however, stipulate which ele-
ment of government shall provide assist-
ance, or what that assistance will be. In
other words, as currently drafted, S. 391
does not require the Peace Corps, or any
other agency, to provide cover at all. It
simply requires that cover be effective.
Second, in my ,judgment, it is unnecessary
and unwise to put into any bill a listing of
agencies which are not to provide cover for
intelligence personnel. this sort. of listing
would probably not be believed by people
overseas-in fact, it might tend to highlight
the suspected Peace Corps/intelligence rela-
tionship. Moreover, it would, automatically
focus the attention of foreign governments,
terrorists and others on the representatives
of other unlisted federal agencies who have
people serving abroad.
Third, to my knowledge, the intelligence
community never has, and never will, use'
the Peace Corps for intelligence purposes.
This is due in part to the special nature of
the Peace Corps, which every administra-
tion has understood and respected. But it is
also due to the fact that representatives of
the Peace Corps do' not 'have the sort of
access overseas which would provide the in-
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CONGRESSIONAL RECORD -SENATE March 1, 1982
telligence community with the sort of infor-
mation they need. Thus, I see no need to
legislate against something which is not
now a problem, and which shows no likeli-
hood of becoming a problem.
I realize that the Pauken nomination has
tended to focus' Congressional attention on
the special role of the Peace Corps, and I
appreciate your concern that this special
status be maintained. I believe strongly,
however, that this is not a real issue with
regard to S. 391. I also believe that an effort
to legislate an exemption for the Peace
Corps in this case will do more harm than
good.
Once again, thank you for raising this
issue with me. I appreciate your interest in
S. 391.
Warm regards.
Sincerely,
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., July 15, 1981.
Hon. LORET MILLER RUPPE,
Director, Peace Corps,
Washington, D.C.
DEAR MRS. RuPPE: Your letter of June 25,
1981, requested my views regarding policies
governing cover relationships between CIA
and the Peace Corps in connection with S.
391, the Intelligence Identities Protection
Act, which will be considered by the Senate
Judiciary Committee soon. Companion legis-
lation, H.R. 4, is also pending in the House.
I understand that you are concerned with
a provision in that proposed legislation that
would require departments and agencies of
the government designated by the President
to provide assistance for cover arrange-
ments to provide whatever assistance the
President deems necessary to effectively
maintain the secrecy of intelligence officers
and employees. This language does not man-
date that the Peace Corps or any other par-
ticular agency provide cover for intelligence
personnel. Moreover, I do not advocate and
would oppose any designation of the Peace
Corps as an agency required to provide
cover support. For these reasons. I am sure
that you will agree that there is no need for
a specific statutory exclusion of the Peace
Corps from the cover provision of the pro-
posed bill. Moreover, such a proposed
amendment would be misleading for it
would suggest that CIA desires to change its
policy in this regard.
I can assure you that I have no intention
of seeking to use the Peace Corps to provide
cover for clandestine intelligence collection
conducted by Central Intelligence Agency
personnel. I certainly do not intend to
change the long-standing CIA policy barring
such use of the Peace Corps, which is re-
flected in existing regulations.
Thank you for the opportunity to express
my views. I hope that I have reassured you
regarding CIA intentions. If you have any
specific questions whatsoever regarding our
policies, my General Counsel, Mr. Stanley
Sporkin, will be happy to answer them. I
look forward to an amicable relationship
with you in the future.
Sincerely,
WILLIAM J. CASEY,
Director of Central Intelligence.
PEACE CORPS,
Washington, D.C., June 25, 1981.
Hon. WILLIAM J. CASEY,
Director, Central Intelligence Agency, Wash-
ington, D.C.
DEAR MR. CASEY: As we both begin our
work with the new Administration, I write
to you about a matter of mutual concern to
our agencies. Specifically, I would like to
bring to your attention the bill S. 391, the
Intelligence Identities Protection Act which
will be considered by the Senate Judiciary
Committee soon. As you know, throughout
the 20 year history of the Peace Corps,
there has been a deliberate effort to keep
separate our volunteers from any intelli-
gence-gathering role. In connection with
that policy, we have evolved our intelligence
policy which bars forlner CIA employees.
and others who have been in the intelli-
gence-gathering business since less than 10-
years prior to their application, from serv-
ing in the Peace Corps.
As you know, this policy has been in effect
for the past twenty years and was last reaf-
firmed by our predecessors in 1978. I under-
stand that your agency has very recently ex-
pressed the position that you have no inten-
tion of deviating from your current regula-
tions prohibiting cover arrangements Involv-
ing the Peace Corps and that it is not your
intention to foster secret regulations at odds
with those regulations which have been in
effect for the past twenty years.
I look forward to hearing from you direct-
ly as to the CIA position on this matter. I
think that it would be to our mutual benefit
to share this correspondence with appropri-
ate members of Congress, so that there will
be no mistake as to the Peace Corps' total
separation from the function of intelli-
gence-gathering.
Sincerely,
LORET MILLER RUPPE,
Director.
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., September 14. 1981.
Hon. STROM H. THURMOND.
Chairman, Committee on the Judiciary, U.S.
Senate, Washington, D.C.
DEAR MR. CHAIRMAN: I am writing to you
because of concerns about Central Intelli-
gence Agency and the Peace Corps which
several Senators have expressed to me in
connection with S. 391, the Intelligence
Indentities Protection Act, which the
Senate Judiciary Committee will consider
on Tuesday, 15 September.
Subsection 603(a) of the Bill would re-
quire departments and agencies of the gov-
ernment designated by the President to pro-
vide assistance for intelligence cover ar-
rangements. The language of this provision
does not require the Peace Corps or any
other agency to provide cover for intelli-
gence personnel. The authority to designate
which agencies shall provide such cover is
left where it currently resides and should
remain, that is, with the President.
Let me personally emphasize that I do not
advocate and would indeed firmly oppose
any designation of the Peace Corps for
cover support. I can assure you that I have
no intention of seeking to use the Peace
Corps to provide cover for clandestine intel-
ligence collection, and I certainly do not
intend to change the long-standing CIA
policy barring such use of the Peace Corps.
It is not the intent of subsection 603(a) to
foster secret directives at odds with this
publicly stated policy, which has been in
effect since 1961, the the same year the
Peace Corps was established.
It would be unwise, however, to put into
the Identities legislation a listing of agen-
cies which are not to provide cover for intel-
ligence personnel. Such a listing would not
be believed overseas. It would serve only to
focus foreign intelligence services, violence-
prone individuals, and terrorist groups in
the overseas personnel of Federal agencies
not included in the listing.
For these reasons, I am sure that you will
agree that there is no need for a specific ex-
clusion of the Peace Corps from the cover-
related provision of the Identities Bill. I
trust I have reassured you regarding CIA in-
tentions. I am enclosing for your informa-
tion recent correspondence to the same
effect between the CIA and the Peace
Corps.
Sincerely,
WILLIAM J. CASEY,
Director of Central Intelligence.
Enclosures. -
Mr. CRANSTON. Do the distin-.
guished floor managers, the Senator
from Alabama (Mr. DENTON) and the
Senator from Delaware (Mr. BIDEN).
also agree with the Senators from
Rhode Island and Montana that in
dropping section 603 it will be the very
clear will of the Senate that if there is
to be a section 603 in the bill, it must
contain an exception for the Peace
Corps?
Mr. DENTON. Yes.
Mr. BIDEN. Very much so. That is
the Senate's clear will.
Mr. CRANSTON. I thank the Sena-
tors. Thus, would they also agree that
should the Chafee amendment be
adopted-and I will support it-and
the Senate turns out to be unable to
convince the other body in conference
to delete section 603 from the confer-
ence agreement, then the Senate con-
ferees must insist that section 603 can
stay in the conference report only if
the Peace Corps exception as reported
from our Judiciary Committee is
added, and that the Senate conferees
will be unyielding on this point?
Mr. CHAFEE. Mr. President, I agree
with the analysis of the Senator from
California and assure him that that
will be my position if I am named a
conferee.
Mr. DENTON. Mr. President, I agree
also and will in conference certainly
forcefully advocate the Senate posi-
tion on this, as the Senator from Cali-
fornia and the Senator from Rhode
Island have described it.
Mr. BIDEN. Mr. President, I also
will be adamant on this point in the
conference: Either strike section 603
entirely or amend it to insert the spe-
cific Peace Corps exception.
Mr. CRANSTON. Mr. President, I
thank the Senators very much, and
greatly appreciate their cooperation in
clarifying this matter so very impor-
tant to the future integrity and effec-
tiveness of the Peace Corps.
Mr. BAUCUS. Mr. President, I
concur with my colleague from Cali-
fornia and thank my fellow committee
members and the bill's author, Sena-
tor CHAFES.
Mr. CRANSTON. Finally, Mr. Presi-
dent, whether or not there is section
603 In the conference report, does the
author of the bill agree that the con-
ferees should be urged to state that
the provisions of section t.6(a) of the
recently issued Executive Order No.
12333, relating to cooperation of Fed-
eral agencies with the Director of Cen-
tral Intelligence, should not be con-
strued as altering in any way the his-
toric policy of complete separation of
the Peace Corps from intelligence ac-
tivities?
Mr. CHAFEE. I agree.
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March 1, 1982 CONGRESSIONAL RECORD - SENATE
Mr. BIDEN. I share that view as
well.
Mr. LEARY. Mr. President, I have
listened to this discussion with great
interest and note that, as a member of
the judiciary subcommittee that han-
dled this bill and a strong supporter of
the Peace Corps, I share fully the con-
cerns of the Senators from California,
Montana, Massachusetts, and Con-
necticut, and endorse completely the
agreement with the bill's author and
floor managers as to both the Senate's
clear will on this matter and the posi-
tion of the Senate conferees'3n confer-
ence.
UP AMENDMENT NO. 823
(Purpose: To strike out section 603 relat-
ing to procedures for establishing cover for
intelligence officers and employees.)
Mr. CHAFES. Mr. President, I send
an unprinted amendment to the desk
and ask for its immediate considera-
tion.
The PRESIDING OFFICER. The
clerk will report.
The assistant legislative clerk read
as follows:
The Senator from Rhode Island (Mr.
CHAFEE) proposes an unprinted amendment
numbered 823.
Mr. CHAFEE. Mr. President, I ask
unanimous consent that further read-
ing of the amendment be dispensed
with.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
The amendment is as follows:
On page 5, strike out lines 4 through 23.
On page 6, line 2, strike out "SEC. 604."
and insert in lieu thereof "SEC. 603.".
On page 6. line 9, strike out "SEC. 605."
and insert in lieu thereof "SEC. 604.".
On page 6, line 13, strike out "SEC. 606."
and insert in lieu thereof "Szc. 605:".
On page 9. immediately after line 10,
amend the table of contents to read as fol-
lows:
"TITLE VI-PROTECTION OP CERTAIN NATIONAL
SECURITY INFORMATION
"Sec. 601. Protection of identities of certain
United States undercover in-
tellgence officers, agents, infor-
mants, and sources.
"Sec. 602. Defenses and exceptions.
"Sec. 603. Extraterritorial jurisdiction.
"Sec. 604. Providing information to Con-
gress.
"Sec. 605. Definitions.".
Mr. CHAFEE. Mr. President, I move
the adoption of the amendment.
The PRESIDING OFFICER. The
question is on agreeing to the amend-
ment of the Senator from Rhode
Island (Mr. CHAFES.)
The amendment (UP No. 823) was
agreed to.
Mr. BIDEN. Mr. President, I move to
reconsider the vote by which the
amendment was agreed to.
Mr. CHAFEE. Mr. President, I move
to lay that motion on the table.
The motion to lay on the table was
agreed to.
AMENDMENT NO. 1259
Mr. CHAFES. Mr. President, I ask
that we now return to the,considera-
tion of the amendment which was the
business before the Senate prior to the
disposition of the last amendment:
The PRESIDING OFFICER. The
Senate will not'return to its considera-
tion.
Mr. CHAFEE. Mr. President, I sug-
gest the absence of a quorum.
Mr. BIDEN. Mr. President, will the
Senator withhold that for a moment?
Mr. CHAFEE. Yes.
Mr. BIDEN. Mr. President, we are
winding down. My understanding is
that we are going to be closing up
fairly soon on this issue for today.
Senator DURENBERCER, Senator
GORTON, Senator SpzcxaR, and several
other Senators have an interest in
speaking on this bill. I have discussed
this with the Senator from Rhode
Island. He is also anxious for them to
have their opportunity to discuss this.
Although 'we have not agreed on a
time certain to vote on this measure
tomorrow, we have all been operating
under the assumption that we would
vote tomorrow.
I want to ask the Senator from
Rhode Island if his understanding is
the same as mi,pe, that if we do vote
tomorrow, or before we vote, whether
it is tomorrow or whenever, that we
will have an opportunity to hear from
those Senators I have mentioned, and
possibly several others who would
wish to add to this debate, and that
also each of us will have an opportuni-
ty to spend 15 minutes or so summa-
rizing our position.
Is that what he understands the
leadership position to be generally?
Mr. CHAFES. Yes, Mr. President,
definitely.
As I understand the proceedings to-
morrow, as soon as we come in,. we
move immediately to the Department
of Justice authorizations bill. There
will be some votes on that at around 2
o'clock.
The PRESIDING OFFICER. If the
Senator from Rhode Island will in-
dulge the Chair, he will refer to the
order which is pending. The present
order reads as follows:
Ordered, That at 9:30 am. on Tuesday,
Mar, 2, 1982, the Senate resume considera-
tion of S. 951, a bill to authorize appropri-
ations for the purpose of carrying out the
activities of the Department of Justice for
fiscal year 1982, and for other purposes and
at that time there be not to exceed 2 hours
of debate, to be equally divided and con-
trolled, on the Johnston amendment No.
1252, and that upon the disposition thereof,
the Senate proceed without debate, motion,
point of order, or appeal, to the disposition
of the Heflin amendment No. 1235.
Ordered further, That 'these two amend-
ments be the only amendments in order.
Ordered further, That upon the disposi-
tion thereof, without intervening debate,
motion, point of order, or appeal, third read-
ing occur, to be followed immediately with-
out intervening debate, motion, or point of
order by final passage of S. 951, as amended,
and that no debate be permitted on a
motion to reconsider. (Feb. 25, 1982.)
? Let me inquire of the Parliamentar-
ian.
The Chair will note that there is no
time limit on the. amendment of the
Senator from Alabama, amendment
No. 1235. The Chair is now informed
that there is no time limit at all.
S 1261
Mr. CHAFES. Mr. President, I want
to assure the Senator from Delaware
that the Senators he referred to will
have an opportunity to be heard.
There is no question about that. There
is no time limit, actually, on this bill
which is before us. So they will be
heard.
It would be my understanding that
probably their discussions would take
place tomorrow afternoon, following
the votes which have been ordered,
but that we would not proceed to any
votes on this matter tomorrow.
Mr. BIDEN.:If the Senator will
yield, I obviously do not object. There
has been a good deal of comity be-
tween the Senator and myself on this
issue. I Just want to make sure that
our colleagues, when they read the
RECoRD; will know what is likely to
happen tomorrow.
We have been operating under'the
assumption, though there has been no
time agreement, that we would be
voting on this tomorrow. At least now
it looks like there is a possibility we
will not be voting on it tomorrow. The
Senator from Delaware is prepared,
once those few Senators speak, to go
forward, but I understand there may
be other exigencies which,would make
it difficult for u, to vote.
I did not intend to pin the Senator
down. I wanted a sense of where we
are going. That answers my question
and I do not have a further question
on that issue.
Mr. CHAFES. Mr. President, I sug-
gest the absence of a quorum.
The PRESIDING OFFICER. The
clerk will call the roll.
The legislative clerk proceeded to
call the roll.
Mr. BAKER. 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.
Mr. BAKER. Mr. President, S. 391,
the Intelligence Identities Protection
Act, is now before the Senate, and I
want to take this opportunity to com-
mend the, distinguished Senator from
Rhode Island, Senator CHAFEE, and
the distinguished manager of the bill,
Senator DENroN. Their patience and
dedication has been most appreciated,
and their efforts on behalf of U.S. se-
curity interests have been crucial to
the development of this important leg-
islation.
As President Reagan wrote in a
letter to me last month,
Legislation to make criminal the unau-
thorized disclosure of the names of our in-
telligence officers remains the cornerstone
for the improvement of our intelligence ca-
pabilities. Nothing has been more damaging
to this effort than the pernicious disclosures
of the names of officers whom we send
abroad on dangerous and difficult assign-
ments. -
Mr. President, I. support this legisla-
tion, and I urge my colleagues to do
the same. This is a matter whose im-
portance cannot be overemphasized.
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CONGRESSIONAL RECORD - SENATE March 1, 1982
? Mr. METZENBAUM. Mr. President,
I rise in opposition to the amendment
that would permit criminal prodecu-
tion for disclosing intelligence agents'
identities without a showing of an
intent to impair U.S. foreign intelli-
gence activities. I want to commend
the distinguished Senator from Dela-
ware, Senator BIDEN, for the admira-
ble job he has performed in handling
this most difficult issue.
Mr. President, we are ligislating in
an extremely difficult area here. Un-
questionably we have an obligation to
safeguard the lives of agents engaged
in activities which protect our national
security. We must condemn any ac-
tions that intentionally endanger the
lives of intelligence agents in order to
distrupt our foreign intelligence activi-
ties. At the same time, however, we
have no more urgent mission than the
protection of the press' freedom to in-
vestigate and report on matters that
are in the public interest. For 200
years the maintenance of a free press
has been the core of our constitutional
way of government. To the maximum
extent possible, we must continue to
permit the press to function without
encumbrance.
The legislation before us today, Mr.
President, attempts to balance these
two very delicate matters. As my good
friend from Delaware well knows, that
is not an easy task.
The Judiciary Committee, after ex-
tensive consideration of the issue, ar-
rived at a reasonable method for pro-
tecting our national security and the
safety of individual intelligence agents
without compromising the freedom of
the press to report on matters in the
public interest. By requiring proof of
an intent to impair or impede our for-
eign -intelligence activities, the bill as
reported by the Judiciary Committee
adequately protects against the kinds
of identity disclosure which all of us
condemn. At the same time it protects
members of the press who have a le-
gitimate interest in investigating and
reporting on corrupt, illegal, improper,
or questionable intelligence activities
under circumstances where the identi-
ties of covert agents are necessary to
the story. The bill as reported by the
Judiciary Committee represents a
proper balancing of these two compet-
ing concerns.
The proposed amendment to substi-
tute a reason-to-believe standard
would, however, tip the balance
against legitimate reporting in the- in-
telligence area. It would have a chill-
ing effect on the kind of journalistic
endeavors which the first amendment
is meant to protect.
Moreover, there is no need to tip the
balance in this fashion. It is my under-
standing that both the CIA and the
Department of Justice have indicated
their satisfaction with the bill as re-
ported by the Judiciary Committee. If
these clearly self-interested parties are
satisfied that the bill with the intent
language adequately safeguards
agents' identities, then why should we
enact legislation that has an even
greater chilling effect on legitimate
press activities?
More than 140 constitution scholars,
including some of our leading first
amendment experts, have stated un-
equivocally that the reason-to-believe
standard will not pass constitution
muster. Why then should we enact
such a standard, especially if the intel-
ligence agencies themselves do not be-
lieve it is essential?
A free press in this country is too
precious a right to impair in this
manner. I urge my colleagues to join
me in opposing this amendment.?
? Mr. HAYAKAWA. Mr. President, it
seems as though we in the United
States sometimes have a naive view of
how our Nation is perceived abroad.
After all, our country seeks peace.
As President Reagan noted last year in
his worldwide address on nuclear
disarmament, the United States is not
an aggressor. Immediately following
World War II, we alone possessed the
atom bomb, and yet we sought world
stability, not world domination.
Our people are charitable. In count-
less disasters around the world, the
American people and their Govern-
ment have come to the aid of the af-
flicted.
So, Mr. President, it is not surprising
that, so often, we cannot comprehend
the hostility our Nation encounters
abroad. Our embassies are bombed,
our officials kidnapped, and our poli-
cies attacked.
In this increasingly tense interna-
tional atmosphere, thousands of our
citizens are courageously serving their
country in the intelligence gathering
operations so important to our nation-
al security. These Government em-
ployees were aware of the personal
dangers confronting them when they
elected to engage in intelligence activi-
ties. But they now find themselves
threatened not only from the front,
but from behind as well; threatened by
their fellow citizens.
In 1975 American Philip Agee's
Counterspy magazine identified Rich-
ard S. Welch as CIA station chief in
Athens, Greece. Richard Welch was
murdered 1 month after the informa-
tion was disclosed in the Athens Daily
News.
In 1980 another American citizen,
Louis Wolf, revealed the names of 15
alleged CIA agents in Jamaica. Within
a week assassination attempts were
made on 2 of the 15.
Mr. President, we are now approach-
ing the seventh anniversary of the
death of Richard Welch, and still
there are no laws to prohibit the type
of despicable act that led to his
murder. Those citizens who would de-
stroy our intelligence-gathering capa-
bilities are still trotting around the
globe "naming names" and endanger-
ing the lives of conscientious Ameri-
cans.
I have cosponsored S. 391, the Intel-
ligence Identities Protection Act, so
that we can at last bring an end to this
type of activity. The bill prohibits the
unauthorized disclosure of intelligence
agents and directs the President to
take steps to insure the secrecy of in-
telligence relationships.
Section 601(a) and (b) of the act set
stiff penalties for those who misuse -
their authorized access to classified in-
formation-by disclosing the identities
of covert agents.
Section 601(c) targets those who
engage in patterns of activity to iden-
tify and expose covert agents. The lan-
guage originally proposed by Senator
CHAFEE and approved overwhelmingly
by the House would penalize such per-
sons who have "reason to believe" that
their activities would harm U.S. intel-
ligence activities.
The Senate Judiciary Committee,
however, decided narrowly to change
the "reason to believe" requirement to
one of "intent." The Government
would have to prove, not that an indi-
vidual engaged in "naming names"
had reason to believe that his activi-
ties were harmful, but that he intend-
ed them to damage American intelli-
gence operations.
I favor the language originally pro-
posed by Senator CHAFES and support-
ed by both the Carter and Reagan ad-
ministrations. The intent standard
would be difficult to prove and would
allow an individual to claim that his
anti-intelligence actions were intended
not to impair U.S. intelligence efforts,
but to expose certain activities that
were improper and worthy of public
discussion. In other words, whatever
the results, the intention was good.
Senator CHAFEE's "reason to believe"
standard would deal more effectively
with those who threaten our national
security, while preserving constitution-
al rights. To convict, the Government
would have to prove not only that an
individual had reason to believe that
his activities imperiled foreign intelli-
gence operations, but that beyond a
reasonable doubt: First, there was an
intentional disclosure of information
which identified a covert agent;
Second, the disclosure was made to
someone not authorized to receive
classified information; Third, the
person who made the disclosure knew
that the information disclosed identi-
fied a covert agent; Fourth, the person
who made the disclosure was aware
that the United States was taking af-
firmative measures to conceal the
covert agent's classified intelligence
affiliation; and Fifth, the disclosure
was made in the course of a pattern of
activities intended to identify and
expose covert agents.
This language will enable the Gov-
ernment to convict the guilty, while
continuing to allow legal scrutiny of
government activity. A reporter who,
in the course of an investigation, re-
vealed an agent's identity would not be
guilty under the act, because he would
not meet its "pattern of activities" re-
quirement.
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March 1, 1982 CONGRESSIONAL RECORD - SENATE
Mr. President, I commend the Sena-
tor from Rhode Island for Introducing
this legislation and for continuing to
press for the best possible language.
Like him, I recognize that if-we are to
deter effectively those who would de-
stroy legitimate American activities,
wit have an effective law.*
ROUTINE MORNING BUSINESS
Mr. BAKER. Mr. President, I ask
unanimous consent that there now be
a brief period for the transaction of
routine morning business. extending
not more than 10 minutes in length. in
which Senators may speak for not
more than 3 minutes each.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
APPOINTMENT BY THE VICE
PRESIDENT
The PRESIDING OFFICER. The
Chair. on behalf of the Vice President,
pursuant to Public . Law 84-944. ap-
points the Senator from Washington
(Mr. Gowiow) to the Senate Office
Building Commission.
S. 2148-TO PROTECT UNBORN
HUMAN BEINGS
Mr. HELMS. Mr. President, I intro-
duce today a bill whose purpose Is to
protect unborn human beings from
the violence of abortion. Many of us In
this body. including a number elected
in 1980, have made a public commit-
ment to seek legal protection for the
unborn. The end of the 97th Congress
is but months away, and we have not
yet been able to set on this crucial
commitment.
With tens of thousands of unborn
babies being killed by abortions every
week, I suggest to my distinguished
colleagues in the Senate that the time
is now.
The bill I introduce today, Mr. Presi-
dent. can be divided Into four basic
parts. Part I-section 1-contains find-
ings from treaties. international
bodies, American. history, and Senate
hearings concerning the unborn and
the right to life.
Part II-sections 2 through 6-gets
the Federal Government totally out of
the abortion business. Instead of tying
up Congress every year during the ap-
propriations process over . the Hyde
amendment, part II would make Hyde
permanent law. Among other things, it
also contains a freedom-of-conscience
clause to protect medical personnel
from discrimination because of their
prolife convictions.
Part III-sections 7 through 9-ap-
plies the bill's findings to constitution-
al protections over which Congress has
enforcement powers. This part also.
provides for certain expedited Su-
preme Court review. Part IV-section
10-is a severability clause which
should assure maximum support
S 1263
Mr. President, in concluding my the state to protect this life from other per-
comments on this bill I call my col- sons;
leagues' attention to the January 11, (e) The Declaration of Independence af.
1982, edition of Newsweek magazine. firmed that all human beings are endowed
On the cover 'of that issue Was a pic- by their Creator with certain unalienable
Lure of an 8-week. old unborn baby. I rights among which is the right to life.
challenge any honest observer to As early as 1857 the American medical
study that picture and the nature of profession sffirniOd of the the independent and
actual existence of tchild before birth as
prenatal development, and then try to a living being and condemned the practice
refute the fact that the unborn, just of abortion at every period of gestation as
like those of us who have been born, the destruction of human life;
are living individual human beings. (g) Before 19113, each of the several states
Newsweek knows when human We had enacted laws to restrict the perform-
f
abastiosi,
begins and. I submit, this Congress once o
knows. It Is time for us to act and to (h) Agencies at the United States continue
protect that precious gift which we all to protect human life before birth from
ardou -
share, that precious divine gift-indi- workingplace hazards. the ot
effects her hazardous
vidual human life. oce DhstrmaoEUtepla, and other of
substances;
Mr. President, today marks the be- (1) It Is a fundamental principle of Ameri-
ginning of March and both Houses of can law to recognize and affirm the Intrinsic
the Congress are preparing for a pro- value of all human life; and
longed debate over the Federal budget _ (i) Scientific evidence demonstates the life
and the levels of appropriation for the
various Federal departments and agen-
cies. Before we embark on that, It is
necessary that we begin with the con-
sideration of this issue in a timely
fashion that will permit consideration
of it also in the House of Representa-
tives. Therefore, I am Introducing this
legislation today and objecting to its
being referred to committee. It is my
intent that the Senate proceed to the
consideration of this bill at the earli-
est possible date. Two subcommittees
of the Judiciary Committee have held
extensive -hearings on this subject. It
is a subject which has been extensive-
ly debated by the Senate and the time
for action is now.
Mr. President, I ask unanimous con-
sent that the full text of the bill be
printed In the Rncolw.
There being no objection, the bill
was ordered to be printed In the
Rzcosn, as follows:
S.2148
Be it exacted by the Senate and House of
Representa.tiow of the Tisanes states of
America in Congress assembled, That title
42 of the United States Code stall be
amended at the end thereof by adding the
following now chapter:
"CHAP'T 101
"Sxcxxox L The Congress finds that-
ta) The American Convention on Human
Rights of the Organization of American
States in I969 affirmed that every person
shall perform dbortton% except when the
life of the mother Wotdd be endangered if
the child were carried to term.
Sac. 3. No funds appropriated by Congress
shall be used directly or indirectly to per-
form abortions;, to reimburse or pay for
abortions, or to refer for abortions. except
when the life of the mother would be en-
dangered If the child were carried to term.
Sac. 4. No funds appropriated by Congress
shall be used to give training In the tech-
ftfues i for Derfora tilg abortions, to finance
research related to abortion, or to finance
experimentation on aborted etlfldren.
Sac. B. The United States shall not enter
into any contract for ientranoe? that pro-
vides, directly or iadi for payment or
reimbursement for abortions other than
when the Life of the mother would be en-
dangered if the child were carried to term.
Sac. S. No Institution that receives federal
financial assistance shall discriminate
against any employee, aDokant for employ-
ment, student, or appbasowfor admission as
a student, on the basis of that person's op-
position to abortion or refraal to counsel or
assist in the performance of abortions.
Sac. 7. Upon the basis of the findings
herein, and in the exerboe of the powers of
Congress. Including its power under section
5 of the Fourteenth Amendment to the
Constitution of the United States, the Con-
gress hereby recognizes that for the purpose
of enforcing the obligation of the States
under the Fasrteeath Amendment not to
deprive persons of life without due process
has the right to have his life protected by Lion, without\regard to race, sex, age,
law from the moment of conception and health, defect, or condition of dependei}cy,
that no one shall be arbitrarily deprived of and for this purpose "person" includes all
life; human beings.
(b) The Declaration of Human Rights of Sao. 5. Congress further recognizes that
the United Nations In 1959 affirmed that each State has a compelling interest, Inde-
every child needs, appropriate legal protec- Pendent of the status of unborn children
tion before as well as after birth; under the Fourteenth Asendment, in pro-
(c) The Nuremburg International Military tecting the lives of those within the State's
Tribunal for the trial of war criminals de- Jurisdiction whom the State rationally re-
clared the promotion of abortion among mi- garde as human beings.
nority populations, especially the denial of Sr- 9. Any party may appeal to the Su-
the protection of the law to the unborn chil- preme Court of the United States from an
dren of Russian and Polish women, as a Interlocutory or final judgment, decree, or
crime against humanity. order of any court of the United States re-
(d) The Federal Constitutional Court of garding the enforcement of this Act, or of
the Federal Republic of Germany to 1975 any State law or municipal ordinance based
ruled that the life which is developing Itself on this Act, or which adjudicates the oonsti-
in the womb of the mother Is an independ- tutionallty of this Act, or of sing such law or
wCongress from those approach- exit legal value which enjoys the protection ordinance Any .patty to such can shall
within it tCongress subject those with different of the constitution and the state's duty to have a right to direct appeal to the Supreme
legal the
concerns, protect human life before birth forbids .pot Court of the United States on the same
Only direct state attacks, but also requires terms as govern appeals pursuant to 28
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