INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200060015-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 20
• Document Creation Date: December 21, 2016
• Document Release Date: January 12, 2009
• Sequence Number: 15
• Publication Date: February 25, 1982
• Content Type: OPEN SOURCE

S 1164
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CONGRESSIONAL RECORD - SENATE February 25, 1982
meeting that is presently taking place.
Can the Senator tell, me why he uses
the hour of 4 o'clock?
Mr. BAKER. Yes, Mr. President, be-
cause one of the majority participants
in the debate will not be ready until 4
o'clock. It is my intention, frankly: to
I further ask unanimous consent
that these. two amendments be the
only amendments in order.
And finally I ask unanimous consent
that upon the disposition thereof,
without intervening debate, motion,
point of order, or appeal, third reading
occur to be followed immediately with-
out further debate, motion, point of
order, or appeal by final passage of S.
951. as amended, and that no time be
allowed for debate of any motion to re-
consider and that paragraph 4 of rule
XII be waived.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BAKER. I thank the Chair, and
I thank all Senators.
I yield the floor, Mr. President.
Mr. JOHNSTON. Mr. President, I
now move and ask unanimous consent
that amendment 1250 and amendment
449, both now pending, be withdrawn.
JLne
The PRESIDING OFFICER. The
clerk will call the roll.
The assistant legislative clerk pro-
ceeded 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the quorum call'be rescinded.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. The ma-
jority leader is recognized.. .
UNANIMOUS-CONSENT
AGREEMENT
Mr. BAKER. Mr. President, I have a
unanimous-consent request in respect
to the business of the Senate this
afternoon, on Monday, and, on Tues-
day. I believe this has been cleared on
both sides, and I am prepared now to
put the request.
Mr. President, I ask unanimous con-
sent that at 4 p.m. today, the Senate
proceed to consideration of S. 391, the
out objection, it is so ordered. agent identities bill.
The text of the agreement follows: I further ask unanimous consent
ordered, That at 9:30 a.m. on Tuesday, that no call for regular order serve to
March 2, 1982, the senate resume considers, take that measure off the floor Pro
tion of S. 951, -a bill to authorize appropri- vided that the unfinished business,
ations for the purpose of carrying out the Senate Resolution 20, not become the
activities of the Department of Justice for pending business until the final dispo-
fiscal year 1982, and for other purposes, and sition of Senate Resolution -204, the
at that time there be not to exceed 2 hours Williams resolution; provided, further,
of debate, to be equally divided and con- that any rollcall votes ordered on this
trolled, on the Johnston amendment No. measure on Monday, March 1, will not
1252, and that upon the disposition thereof,
the Senate proceed without debate, motion, occur until Tuesday. March 2, begin-
point of order, or appeal, to the disposition ning at 2 p.m. and to occur- back to
of the Heflin amendment No. 1235. two with y subsequent votes to be 10
Ordered further, That these e two amend-
ments be the only amendments in order. minutes each.
Ordered further, That upon the disposi- Mr President, before the Chair puts
tion thereof, without intervening debate, the request,' I also announce that if
. of or or appeal, third motion
h this agreement is entered into, there
occur, r, totobe a fofolllloor, wed d immediately wittely with. -
out intervening debate, motion, or point of will be no more record votes today.
order by final passage of 8.951, as amended, Mr. LONG. Mr. President, reserving
and that no debate be permitted o'h a the right to object. I should like to
motion to reconsider. look at the agreement a second.
Mr. BAKER. Mr. President, I am When the Senator makes reference to
prepared to leave this bill and I hope back-to-back votes, what measure is he
that in a few moments we may have a referring to?
unanimous-consent order cleared to Mr. BAKER. Mr. President, the re-
provide for the beginning of considera- quest would be that any votes that are
tion on the so-called agent identities ordered on Monday to the agent iden-
bill later this afternoon. I may say, tites bill would not occur until Tues-
however, that it would be just the be- day, beginning at 2 o'clock, and ' that
ginning of consideration. I do not. an- those votes on the agent identities bill
ticipate votes on that measure today. would be back to back, with the first
it is not my intention to ask the vote to be 15 minutes and subsequent
Senate to be in session tomorrow. votes to be 10 minutes each.
The Senate will reconvene on Mr. LONG. I have no objection.
Monday and if the agreement is Mr. ROBERT C. BYRD. Mr. Presi-
agreed to, which I have referred to, dent, reserving the right to object,
rdered on the does the majority leader also state, by
ny votes that are o
a agent identities bill prior to Tuesday virtue of the request presented, that
- ... -
n+her business lln Ali
..hal be
ere
no
b
at Z P.M. WILLe ywavl.v....... ...........-___
that time. I am not making that re- Monday, no business other than th
quest at this moment but rather stat- agent identities bill?
uest that is Mr. BAKER. Yes.
e
f th
q
e r
the nature o
ing
now in the - clearance process and Mr. President, I think that will be
which I intend to make assuming it is the effect, absent another agreement,
cleared a little later. in view of the provision against the
Mr. President, I believe the time has call for the regular order. But I will in-
come under the order granted now to elude that in the request, that no
lay aside S. 951. Is that correct? other business be in order in the siness on The PRESIDING OFFICER. The coc u se of the busi consent' Monday
t
i
.
s correc
majority leader
Mr. BAKER. Then, Mr. President, I Mr. LONG. Mr. President, reserving
suggest the absence of a quorum. the right te.object. I need to attend a
have a quorum ci or-put the Senate
in recess for 20 minutes.
Mr. LONG. I thank the majority
leader.
Mr. ROBERT C. BYRD. Mr. Presi-
dent, reserving the right to object, will
the majority leader also assure that
there will be no votes on anything on
Monday, including conference reports
which could be brought up without
unanimous consent?
Mr. BAKER. Mr. President, I have
no objection to that. I will modify the
request so that there will be no votes
on Monday, and those votes which are
ordered either- on the "agent identities
bill or any other matter which is privi-
leged to come before the Senate, not-
withstanding the provision of this
order, will be stacked to occur in se-
quence beginning at 2 o'clock on Tues-
day as described.
Mr. ROBERT C. BYRD. Mr. Presi-
dent, I thank the majority leader. I
have no objection.
Mr. MATHIAS. Mr. President, re-
serving the .right to object, I inquire of
the majority leader whether or not.
the practical effect of this is that the
television question will go over until
the Williams question is disposed of.
Mr. BAKER. Yes, that is the intent.
Mr. MATHIAS. So all those who
wish to participate and preparethem-
selves to participate will be governed
by that knowledge.
Mr. BAKER. Yes, that is correct.
The PRESIDING OFFICER. With-
out objection, it is so ordered.
Mr. BAKER. Mr. President, it is 20
minutes before 4 p.m. Under the order
just entered the Senate will proceed to
the consideration of the agent identi-
ties bill at 4 p.m. No other business
will be transacted.
I think the better part of discretion
will be to ask the Senate to go into
recess. -
RECESS UNTIL 4 P.M.
Mr. BAKER.. Mr. President, I ask
unanimous consent that the Senate
stand in recess until the hour of 4 p.m.
There being no objection, the
p }n., whereupon, the Senate reassem-
bled when called to order by the Pre-
siding Officer (Mr. DsN oN).
INTELLIGENCE IDENTITIES
PROTECTION ACT OF 1981
The PRESIDING OFFICER. Under
the previous order, the Senate will
now proceed to the consideration of S.
391, the Intelligence Identities Protec-
tion Act of 1981, which the clerk will
report.
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February 25, 1982
CONGRESSIONAL RECORD. - SENATE S 1165
The assistant legislative clerk read
as follows:
A bill [S. 3911 to amend the National Se-
curity Act of 1947 to prohibit the unauthor-
ized disclosure of information identifying
certain United States, intelligence officers.
agents, informants, and sources and to
direct the President to establish procedures
to protect the secrecy to these intelligence
relationships. ,
The Senate proceeded to consider
the bill (S. 391), which had been re=
ported from the Committee on the Ju-
diciary with amendments, as follows:
On page 3, strike line 7, through and in-
cluding "information," on line 13, and insert
the following:
"(c) 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. dis-
closes to any individual not authorized to re-
ceive classified information, any informa-
tion that identifies an individual as a covert
agent,
On page 5, line 15, after "agency,", insert
the following: "other than the Peace
corps".
So as. to make the bill read:
Be it enacted by the Senate and House of
Representatives N the United States of
America in Congress assembled, That this
Act may be cited as the "Intelligence Identi-
ties Protection Act of 1981";
SEC. 2. (a) The National Security Act of
1947 Is amended by adding at the end there-
of the following new title:
"TITLE VI-PROTECTION OF CERTAIN
NATIONAL SECURITY INFORMATION
"PROTECTION OF IDENTITIES OF CERTAIN
UNITED STATES UNDERCOVER nITELLIGENCE
OFFICERS. AGENTS. INFORMANTS, AND SOURCES
"Sac. 601. (a) Whoever, having or having
had authorized access to classified informa-
tion that identifies a covert agent, inten-
tionally discloses any Information identify-
ing such covert agent to any individual not
authorized to receive classified information,
knowing that the information disclosed so
identifies such covert agent and, that the
United States is taking affirmative measures
to conceal such covert agent's intelligence
relationship to the United States, shall be
fined not more than $50,000 or imprisoned
not more than ten years, or both.
"(b) Whoever, as a result of having au-
thorized access to classified information,
learns the identity of a covert agent and In-
tentionally discloses any information identi-
fying such covert agent to any individual
not authorized to receive classified informa-
tion, knowing that the Information dis-
closed so identifies such covert agent and
that the United States is taking affirmative
measures to conceal such covert agent's In-
telligence relationship to the United States,
shall be fined not more than $25,000 or Im-
prisoned not more than five years, or both.
"(e) 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, dis-
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 information dis-
closed so identifies such individual and that
the United States is taking affirmative
measures to conceal such individual's classi-
fied intelligence relationship to the United
States, shall be fined not more than $15,000
or imprisoned not more than three years, or
both.
"DEFENSES MID ESC'TIbNS
"SEcc 602- (a) It In a defense to a prosecu-
tion under section 601 that before the com-
mission of the'offenae with which defend-
ant is charged, the United States had pub-
licly acknowledged or revealed the intelli-
gence relationship to the United States of
the individual the disclosure of whose intel-
ligence relationship to the United States is
the basis for the prosecution.
"(bXl) Subject to paragraph (2),' no
person other than a person committing an
offense under section 601 shall be subject to
prosecution under such section by virtue of
section 2 or 4 of title 18, United States Code,
or shall be subject to prosecution for con-
spiracy to commit an offense under such
section.
"(2) Paragraph (1) shall not apply in the
case of a person who acted in the course of a
pattern of activities intended to identify and
expose covert agents and with reason to be-
lieve that such activities would impair or
impede the foreign intelligence activities of
the United States.
"(c) It shall not be an offense under sec-
tion 601 to transmit information described
in such section directly to the Select Com-
mittee on Intelligence of the Senate or to
the Permanent Select Committee on Intelli-
gence of the House of Representatives.
"(d) It shall not be an offense under sec-
tion 601 for an individual to disclose infor-
mation that solely identifies himself as a
covert agent,
"PROCEDURES FOR ESTABLISHING COVER FOR
INTELLIGENCE OFFICERS AND EMPLOYEES
"SEC. 603. (a) The President shall estab-
lish procedures to ensure that any Individu-
al who is an officer or employee of an Intel-
ligence agency, or a member of the Armed
Farces assigned to duty with an Intelligence
agency, whose Identity as such an officer,
employee, or member Is classified informa-
tion and which the United States takes af-
firmative measures to conceal is afforded all
appropriate assistance to ensure that the
identity of such individual as such an offi-
cer. employee, or member is effectively con-
cealed. Such procedures shall provide that
any department or agency, other than ,the
Peace Corps, designated by the President
for the purposes of this section shall pro-
vide such assistance as may be determined
by the President to be necessary in order to
establish and effectively maintain the secre-
cy of the identity of such individual as such
an officer, employee, or member.
"(b) Procedures established by the Presi-
dent pursuant to subsection (a) shall be
exempt from any requirement for publica-
tion or disclosure.
"EXTRATERRITORIAL JURISDICTION
"SEC. 604. There is jurisdiction over an of-
fense under section 601 committed outside
the United States if the individual commit-
ting the offense is a citizen of the United
States or an alien lawfully admitted to the
United States for permanent residence (as
defined in section 101(aX20) of the Immi-
gration and Nationality Act).
"PROVIDING INFORMATION TO CONGRESS
"SEC. 605. Nothing in this title may be
construed as authority to withhold informa-
tion from the Congress or from a committee
of either House of Congress.
- "DEFINITIONS
"SEc. 606. For the purposes of this title:
"(1) The term 'classified, information'
means information or material designated
and clearly marked or clearly represented,
pursuant to the provisions of a statute or
Executive order (or a regulation or order
issued pursuant to a statute or Executive
order), as requiring a specific degree of pro-
tection against unauthorized disclosure for
reasons of national security.
"(2) The term 'authorized', when used
with respect to access to classified informa-
tion, means having authority, right, or per-
mission pursuant to the provisions of a stat-
ute, Executive order, directive of the head
of any department or agency engaged th for-
eign intelligence- or counterintelligence ac-
tivities, order of any United States court, or
provisions of any rule of the House of Rep-
resentatives or resolution of the Senate
which assigns responsibility within the re-
spective House of Congress for the oversight
of intelligence activities.
"(3) The Term 'disclose' means to commu-
nicate, provide, impart, transmit, transfer,
convey, publish, or otherwise make availa-
ble.
"(4) The term 'covert agent' means-
"(A) an officer or employee of an intelli-
gence agency or a member of the Armed
Forces assigned to duty with an intelligence
agency-
"(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; or
"(B) a United States citizen whose intelli-
gence relationship to the United States is
classified information, and-
"(1) who resides and acts outside , the
United States as an agent of, or informant
or source of operational assistance to, an in-
telligence agency, or
"(ii) who is at the time of the disclosure
acting as an agent of, or Informant to, the
foreign counterintelligence or foreign coun-
terterrorism components of the Federal
Bureau of Investlgat$en; or
"(C) an individual, other than a United
States citizen, whose past or present intelli-
gence relationship to the.United States .is
classified information and who Is a present
or former agent of, or a present or former
informant or source of operational assist-
ance to, an intelligence agency.
"(5) The term 'Intelligence agency' means
the Central Intelligence Agency, a foreign
intelligence component of the Department
of Defense, or the' foreign counterintelli-
gence or foreign counterterrorism compo-
nents of the Federal Bureau of Investiga-
tion.
"(6) The term 'informant' means any indi-
vidual who furnishes information to an in-
telligence agency in the course of a confi-
dential relationship protecting the identity
of such individual from public disclosure.
"(7) The terms 'officer' and 'employee'
have the meanings given Such terms by sec-
tions 2104 and 2105, respectively, of title 5;
United States Code.
"(8) The term 'Armed Forces' means the
Army, Navy, Air Force, Marine Corps, and
Coast Guard.
"(9) The term 'United States', when used
in a geographic sense, means all areas under
the territorial sovereignty of the United
States and the Trust Territory of the Pacif-
ic Islands.
"(10) The term 'pattern of activities' re-
quires a series of acts with a common pur-
pose or objective.".
"(b) The table of contents at the begin-
ning of such Act is amended by adding at
the end thereof the following:
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 S 1166
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CONGRESSIONAL RECORD - SENATE February 25, 1982
"TITLE VI-PROTECTION OF CERTAIN
NATIONAL SECURITY INFORMATION
Sec. 601. Protection of identities of certain United
States undercover intelligence officers,
agents, informants, and sources.
Sec. 602. Defenses and exceptions.
Sec. 603. Procedures for establishing cover for intel-
ligence officers and employees.
Sec. 604. Extraterritorial jurisdiction.
Sec. 605. Providing information to Congress.
Sec. 606. Definitions.".
Mr. GOLDWATER. 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. DENTON. Mr. President, I ask
unanimous consent that the order for
the quorum call be rescinded.
The PRESIDING OFFICER (Mr.
WARNER). Without objection, it is so
ordered.
Mr. DENTON. Mr. President, I rise
In support of S. 391. On February 3,
1981, our distinguished colleague Sen-
ator JoHN H. CHAFES of Rhode Island
introduced the Intelligence Identities
Protection Act of 1981. ? This bill,
which currently has 46 cosponsors,
was reported from the Committee on
the Judiciary on October 6, 1981.
S. 391 is a bill to amend the National
Security Act of 1947, to prohibit the
unauthorized disclosure of informa-
tion identifying certain U.S. intelli-
gence Officers, agents, informants, and
sources, and to direct the President to
establish procedures to protect the se-
crecy of these intelligence relation-
ships.
Events transpiring in the world have
been increasingly demonstrative of the
need for maintaining a strong and ef-
fective intelligence apparatus. It fol-
lows, therefore, that unauthorized dis-
closures of information identifying in-
dividuals engaged in, or assisting in,
our country's foreign intelligence ac-
tivities, undermine the intelligence
community's human source collection
capabilities as well as endanger the
lives of our intelligence officer in the
field.
The disclosure of the identity of a
covert agent is an immoral, nationally,
and personally harmful act that
cannot be tolerated. Prohibition of
this activity as defined by the bill
would in no way inhibit an individual
from speaking out against Govern-
ment programs that are wasteful. It
would not impede the whistleblower
who seeks to enhance his Govern-
ment's ability to perform more effi-
ciently by bringing to the attention of
those in responsible positions deficien-
cies, such as fraud or waste, in the
agency in which the whistleblower
serves. The reprehensible activities
which this bill is designed to crimina-
lize have repeatedly exposed honor-
able public servants to personal peril
and vastly reduced their effectiveness
in pursuing their endeavors with sig-
nificant detriment to national secu-
rity. The insensitivity and moral de-
generacy on the part of those who
seek to undermine the effectiveness of
our intelligence capability are so inimi-
cal to our American democratic system
that it seems evident that what we are
about to do today should not be neces-
sary. This bill Is indeed overdue for
passage.
While In a free society we must wel-
come public debate concerning the
role of the intelligence community as
well as that of other components of
our Government, the irresponsible and
indiscriminate disclosure of names and
cover identities of covert agents serves
no salutary purpose whatsoever. As
elected public officials, we have the
duty, consistent with our oaths of
office, to uphold the Constitution and
to support the men and women of the
U.S. intelligence service who perform
important duties on behalf of their
country, often at great personal risk
and sacrifice.
Extensive hearings before the House
and Senate Intelligence Committees
and the Subcommittee on Security
and Terrorism have documented the
pernicious effects which have resulted
from these disclosures or identities. An
iinderlying, basic issue is our ability to
continue to recruit and retain human
sources of intelligence whose informa-
tion is crucial to our Nation's survival
in an Increasingly dangerous world.
It seems mind-boggling to me that
no existing law clearly and specifically
makes the unauthorized disclosure of
clandestine intelligence agents' identi-
ties a criminal offense. Therefore, as
matters now stand, the impunity with
which unauthorized disclosures of in-
telligence Identities can be made im-
plies a governmental position of neu-
trality in the matter. It suggests that
the U.S. intelligence officers are "fair
game" for those members of their own
society who take Issue with the exist-
ence of a CIA or find other perverse
motives for making these unauthor-
ized disclosures.
Through the lengthy hearings that
have occurred over the past several
sessions of the Congress, we have
heard a substantial amount of testimo-
ny regarding the possible constitution-
al problems engendered by provisions
of this bill. As we all appreciate, in
this area of identities protection, we
have steered a course carefully
charted between two enormous inter-
ests: On the one side, we have the pro-
tection of a constitutional right of free
speech and, on the other side, the vital
need to protect the effectiveness of
U.S. intelligence gathering around the
world. During all of the hearings and
debates, great care has been taken to
construct a provision that would reach
the activity to be proscribed, that is,
"naming names," in such a way as to
do no violence to the first amendment
to the Constitution. I believe we, and
those who labored previously on this
measure, have been successful.
On June 29', 1981, the Supreme
Court of the United States in a 7-to-2
decision sustained the authority of the
President, acting through the Secre-
tary of State, to revoke a passport of a
U.S. citizen on the grounds that the
holder of the passport is engaged in
activities abroad that are causing seri-
ous damage to the national security of
foreign policy of the United States.
This decision, Haig, Secretary of
State against Agee, has a major rela-
tionship to this bill in that the Court's
review of this matter established the
serious nature of the activity of
naming names to identify and expose
covert agents. Furthermore, the
Court's decision suggests that the
issues involved here are, from a consti-
tutional standpoint, relatively clear
cut. This decision established that S.
391 will withstand a first amendment
challenge in the courts. Even Justice
Brennan stated in his dissent that:
It may be that respondent's first amend-
ment right to speak is outweighted by the
Government's interest in national security.
Mr. President, I view this as a bi-
partisan issue. I believe immediate
action must be taken to curtail these
activities which have been so deter-
mental to our intelligence-gathering
capabilities and, ultimately, to our na-
tional security. If any legitimate criti-
cism is to be leveled at this bill It
would, In, my view, relate to Insuffi-
cient criminal sanctions for what I
consider to be a most egregious of-
fense that borders on treason.
Frankly, I am grateful for the spirit
of cooperation that has enabled this
important bill to be brought to the
floor but I am concerned that it has
taken so long to do so. I look forward
to the prompt consideration of this
measure on the floor today and its
early enactment in a form that most
adequately addresses this serious gap
in the Federal Criminal Code.
Finally, I want to commend by col-
league from Rhode Island, Senator
CHAFES, for his initiative and unceas-
ing efforts on this vital measure. I also
want to thank staff members Rob
Simmons, Will Lucius, and Sam Fran-
cis for their valuable contributions on
S. 391. These gentlemen, along with
many others, have put in many long
hours on this legislation and I feel
they deserve our strong commenda-
tion.
There has been a strong bipartisan
tone in the discussions on this matter
in committee. In the spirit of that bi-
partisanship I have worked with the
minority floor manager of this bill and
have come to respect him greatly.
I am now pleased to yield to the Sen-
ator from Delaware.
The PRESIDING OFFICER. The
Senator from Delaware.
Mr. BIDEN. I thank the Senator.
I, too, would like to begin by compli-
menting the Senator from Rhode
Island, Senator CHAFES, who serves
with me on the Intelligence Commit-
tee, has had for some time a preemi-
nent interest in doing something
about protecting, the safety of agents
of the U.S. Government. These agents,
acting on behalf of our Government,
and in the interests of the people of
the United States of America, are sub-
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February 25, 1982 CONGRESSIONAL RECORD = SENATE. S 1167
ject to the outrageous public exposure reading the RxcoRD -of what the are not going to spend a lot more time
by individuals, some of - whom are debate is, about, will have a . starting here today-is how do we get to those
former members of those agencies, point at least. folks, how do we treat them, and by
who have deliberately put them at The whole purpose of this bill is to what standard of law do we apply to
risk. penalize the disclosure of names by them?
mind that those people who are delib-
erately engaging in this practice are
fully aware of the fact that such expo-
sure can and has resulted in the loss of
life and the breach of security and,
consequently, affected the interests of
the United States of America.
I, too, believe as does the Senator
from Rhode Island and the Senator
from Alabama, indeed I think we are
all in agreement that it is high time
we finally got this thing to the floor.
It is high time we get a vote.
We had a number of debates. I see
the distinguished Senator from Arizo-
na, chairman of the Committee on In-
telligence, here. He is fully aware of
the subject, fully cognizant of it. He.
in his capacity on that committee, has
heard all the arguments and debates
on this. We have had it through his
committee and the Judiciary Commit-
tee. In the 10 years I have been in the
U.S. Senate, there have not been many
issues that have been as thoroughly,
fully debated as this one. So I think it
is high time we got on with the issue
of deciding what are the only really
one or two controversial aspects of the
bill. We are 99 or 90 percent in agree-
ment as to what form this protection
of our agents should take.
I should like to suggest, and I think
it is appropriate-it is common prac-
tice that we should move, probably,
the committee amendments. This is
the Judiciary Committee the Senator
from Alabama and I are representing
today. I ask unanimous consent that
we consider and agree to en bloc the
amendments as adopted in the com-
mittee on this bill.
The PRESIDING OFFICER. Is
there objection?
Mr. DENTON. Mr. President, I re-
serve the right to object.
Mr. BIDEN. Mr. President, I amend
that to say and that the bill as thus
amended be considered as original
text.
The PRESIDING OFFICER. Is
there objection to. the unanimous-con-
sent request of the Senator from Dela-
ware as amended?
Is it the request of the Senator to
have the amendments be agreed to en
bloc?
Mr. BIDEN. That is correct.
The PRESIDING OFFICER. The
question is on agreeing to the commit-
tee amendments en bloc.
The committee amendments were
agreed to en bloc.
Mr. BIDEN. I thank the Chair for
the help.
Mr. President, let me, if I may, at
least from my perspective, outline in
just a few minutes the essential ele-
ments of the bill as I see it so our col-
leagues, as they go forward with their
efforts and their homework tonight
and tomorrow and on the weekend,
only the third class or person we nave the Senator from icnoue 1swuu, i. nC
a debate about as to how we should do Senator from Alabama and others, a
it. The first is in section 601 (a) and case can be made that the civil lib-
(b) and they deal with present and
former Government employees who
have had access to the . names of
agents or who, because they had
access to classified information, are
able to determine the names of the
agents. In subsection (d), that deals
with individuals outside the Govern-
ment who disclose the names of agents
even though they never had access to
classified information.
There are two formulations of sec-
tion (c) that really are the cause of
some debate here, in the Senate, and
that we shall be debating at the begin-
ning of next week, the so-called
reason-to-believe version, which reads
as follows:
Whoever, in the course of a pattern of ac-
tivities intended to identify and expose
covert agents and with reason to believe
that such activities would impair or impede
the foreign intelligence activities of the
United states. etc.
We are talking about the third class
of person now, not the person who has
had access to classified information.
These are persons outside the Govern-
ment who disclose the names, the
standard we want to judge them by.
The first standard we are going to
argue about is the one I just read.
Another version is the version adopt-
ed by the Judiciary Committee. It is
the intent version. It is a response to
some of the arguments raised by some
of the constitutional scholars and
press groups who contend that the
reason to believe version is unconstitu-
tional and/or unnecessarily broad.
The intent version reads as follows:
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 U.S. by the fact of
such identification and exposure,
And so on.
That is what we are going to be ar-
guing about. That is what it is all
about., That is what it comes down to-
whether or not we have the operative
language that would make it a crime
and subject those persons to a crimi-
nal penalty who reveal the names of
agents, who have not had access to the
names of these agents through classi-
fied information in the past, fall out-
side of Government but, nonetheless,
by whatever means, gain access to it: a
reporter who finds out that John Doe
is a CIA agent and he publishes John
Doe's name; or somebody who deliber-
ately goes on a witch hunt to find out
the names of those people, gathers
them up and publishes them for pur-
poses of exposure. They are the folks
we are after.
So what we are going to be arguing
about-not so much today because we
erties of Americans are better protect-
ed by the reason to believe standard.
So our colleagues are going to hear a
lot of confusing, well-intended jargon
on both -sides. We are going to have
the Senator from Rhode Island argu-
ing, if we really want to protect civil
liberties, we should adopt reason to be-
lieve. We are going to have the Sena-
tor from Delaware say, no, it is better
to have an intent standard.
I do not have any doubt in my mind
at the beginning of this debate that
the Senator from Rhode Island means
what he says, that he truly believes
the best way not only to protect our
national interest but also not to vio-
late the civil liberties of our American
citizens under the first amendment is
to adopt the reason -to believe. I
happen to disagree with that. So we
are about to get into a debate that I
believe is borne out by a genuine belief
on both our sides that we can get the
job done with our language and pro-
tect civil liberties.
Mr. President, I 'think it is useful for
us to really understand just how
narrow the difference is, because it
gets kind of complicated. We are going
to get into fairly esoteric arguments
and it is a little:'bit hard to follow. I
suspect that we shall both or all of us
on the floor may - very well-at various
times in the _ debate, our decibel rates
may rise and we may also be making
appeals as to the same basic set of ar-
guments and our colleagues are going
to argue, how can they both be saying
the same thing?
Mr. President, there is much more to
talk about in this bill. There, is a sec-
tion on whether it is constitutional to
penalize nonemployees. We are going
to be talking about what happens
without the intent language, what
happens with the intent language. We
are going to be arguing about what
the Agency thinks will get the job
done, we are going to be arguing. about
how badly all these things are needed.
Rather than get into those things now
and rather than make a more lengthy
floor statement, I want to reiterate
where the bone of contention is going
to come.
The argument we are going to be fo-
cusing on in this bill is whether or not
the language which says "with the
intent to impair or impede" should be
stricken and we should have language
that says "with reason to believe." It is
going to come down to that. That is
the big issue. I am anxious to get it
settled. I am anxious to have a resolu-
tion, because we need a bill. These
folks need protection and I am confi-
dent that whatever version we come
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S 1168 ? CONGRESSIONAL RECORD - SENATE February 25, 1982
out with we can get passed in the U.S. It is bad enough that our overseas how to protect first amendment rights
Congress, we can get the President to employees are exposed to violence, but while allowing for prosecution of
sign, and we can get on with the busi- to allow someone here at home to do it those who abuse those rights. I hope
ness of putting it in shape. So without by putting ID tags on them so that we have not become so helpless that
getting into the details of my argu- they may become targets makes no we cannot recognize a serious situation
ment as to why I think we should stick sense at all. and solve it just because we cannot
with the committee version, let me So far, some 1,200 names have been agree on words. I believe that first
yield to my colleagues who also have made public in magazines or newspa- amendment rights were considered
opening statements and, maybe, a dif- pers. Another 700 appeared in a book, and that the bill will protect those
ferent perspective on this question. A bimonthly bulletin exposes CIA, rights while allowing for prosecution
Mr. DENTON. Mr. President, first I FBI, and military Intelligence person- of those who name names solely for
would pose a rhetorical question to nel and assignments. A worldwide net- the purpose of harming the Govern-
the Senator from Delaware. I wonder work called CIA watch is operated for ment's foreign intelligence activities.
why the Senator Is so firm on the the purpose of destroying the CIA. There is another amendment in the
intent standard regarding the applica- Every time I read about something Constitution that is 'important, too.
tion of legislation to protect the lives like this, it bothers me, I cannot help That is the 14th amendment, which
of our intelligence agents and yet does but wonder why we let it continue and guarantees the right of equal protec-
not come down on that same standard why someone does not do something tion to all citizens. I believe this bill
on the issue .of voting rights. about it. That seems to me as morally will protect those rights and the first
Mr. BIDEN. I said it was going to be wrong as anything I can think of and amendment at the same time.
an interesting debate. I will be happy, something I can accept no longer. This bill will outlaw unauthorized
since it was a rhetorical question, to We are in a rut on this subject, and I disclosure of names in three ways.
speak to that question in some detail am afraid It will become our grave if First, it covers those who have access
as we get down the line here, we do not stop talking and do some- to classified information which identi-
Mr. DENTON. I yield to the Senator thing. We must tell the world that we fies names. Second, it applies to those
from Arizona. will not tolerate such disclosures any who have access to classified informa-
Mr. GOLDWATER. Mr. President, I longer and show that we care for the tion but not names, and who learn of
thank my friend. The Intelligence CIA and plan to do something about names because of that access. Third, it
Identities Protection Act (S. 391) it. hits those who make a business of
before us today will, help protect our Thus, the immediate goal for this naming names in a deliberate and sys-
intelligence personnel on difficult and Nation-and for this Congress-should tematic way even though they claim
dangerous assignments in foreign be the rebuilding and revitalization of not to have access to classified infor-
countries. It also will help stop our in- the intelligence community which will mation.
telligence' sources from turning away benefit all our citizens. Some have said that this bill will not
from us because they are afraid we We should have had this bill before do much more than help patch the-
cannot be trusted to protect them. It us sooner, but now that it is before us, image of the CIA. I believe that there
might help us get information that is we must act promptly. This bill was re- is a lot more at stake than that. It has
vital to the security of our country. ported from the Senate Intelligence nothing to do with whether you like
Last November, the "Covert Action Committee by a vote of 13 to 1 In 1980, the CIA or do not like the CIA. Saving
Information Bulletin" published the after 9 days of hearings and over 650 lives Is what this bill will do. This is so
names of 69 alleged CIA officers serv- pages of testimony. It picked up 47 co- serious that if we do not pass this bill
ing in 45 countries abroad in a section sponsors in 1981. It passed the House the KGP people are the only ones who
titled "Naming Names." In addition, by a vote of 354 to 56 last year, and will get a laugh out of it. Everyone
the "Bulletin" reprinted the names of has had the support of both the else will think we are crazy and start
272 alleged covert agents which had Reagan and Carter administrations. looking at us as accessories to negli-
been identified in the 12 previous edi- The purpose of this bill is to protect gent homicide. It would mean that we
tions of the magazine. the lives of American citizens working would
One week later, the pro-Sandinist abroad in the intelligence operations prefer to protect those who
would
paper, Nuevo Diario, identified the of this country from other American harm us instead of those who
work for us
names of 13 alleged CIA officers as- citizens who deliberately wish to set A high gh ra.
signed to the U.S. Embassy in Mana- them up for exposure -nking CIA official tesCo e -
to violence by before the Senate Intelligence Com
gua, Nicaragua. Several of those the unauthorized disclosure of names. mittee in these words:
named have already received death The bill also places a price on the ac-
threats, been roughed up in their tivities of those who use this means to Our intelligence sources and methods are
at night, and the families of a impair and impede duly authorized part of the national treasure. Once dis-
homes cl our be denied to and
number of these American officials American intelligence activities our methods thwarted by relatively simple
have been evacuated for their personal around the world, actions by foreign authorities. The law cur-
safety. U.S. officials in Managua have The biggest obstacle to this bill in rently lacks teeth in seeing to it that these
linked the publication of these names the past were claims that it would in- sources and methods are adequately pro-
with the visit of Philip Agee to Nicara- terfere with free speech and freedom tected from unauthorized disclosure.
gua last month. of the press. That has been worked Mr. President, those words certainly
There has already been one murder. out, and those claims are phony. The make sense. There is no good reason
Richard Welch was murdered in Supreme Court would not hesitate to why our intelligence employees or
Greece after being named. In 1980, say so if Congress were to go too far. agents who operate under protective
two attempts were made in Jamaica to If someone wants to criticize foreign cover on official Government business
assassinate American personnel. They policy, that is their business. If they should be placed in needless danger by
were set up as targets for assassination want to write about the lousy conduct permitting their identities to be re-
by other Americans through the unau- of some of our citizens, that is OK, vealed deliberately.
thorized disclosure of names. There too. But they do not have to name Mr. President, I might comment
are two ways this is being done. One is names, because that places the lives of that we are the only country in the
the naming of names at press confer- human beings in danger. That is not world that allows this to go on. The
ences, and the other is listing names in OK. It is not acceptable in the Ameri- penalty for doing this in any other
books and publications. These unau- can society. country would undoubtedly be death .
thorized disclosures have been exten- There have been at least six bills on or life imprisonment. But we allow it
sive and many have been made by both sides of the Capitol to deal with to go on out of an office on DuPont
former CIA employees. The tragedy is this, but all of them have been bogged Circle, and I am fed up with it.
that we do not have any laws to stop down in discussions over how best to These disclosures of identities have
it. arrange words. The problem has been no redeeming social value and were
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S 1170 CONGRESSIONAL RECORD - SENATE February 2j, 1982
Somebody goes out, he spends an in. nature has been examined in one form ness of furnishing the enemies of the
credible amount of time, he goes or another by both the Intelligence United States with information that
through a whole series of unclassified Committee and the Judiciary Commit- invites and facilitates violence against
documents; and then with the intent tee since early 1980'. Hearings have its agents and mere reporting. I am
to expose the name of an agent in been held, there has been lengthy satisfied with the terms of this bill
order to impair the activities of the debate, and each and every section has and the protection that it affords. I
United States, goes ahead and pub- been closely and carefully scrutinized. encourage all of my colleagues to sup-
lishes these names. I do not believe that there is much dis- port this bill and its goals.*
On the other hand, in the amend- agreement in the Senate as to whether AMENDMENT NO. 1256
ment that I will call up, the language or not legislation of this type is
is somewhat different. The language needed, and I think that it is time for (Purpose: To describe criminal liability for
in my amendment says, "Whoever, in the Senate to say with a loud and the disclosure of certain information iden-
the course of a pattern of activities in- clear voice that we do not condone the tifying an individual as a covert agent)
tended to identify and expose covert type of action prohibited by this bill. Mr. CHAFEE. Mr. President, I call
agents and with reason to believe that This measure aims at protecting the up my amendment numbered 1256.
such activities would impair or identities of those individuals whose The PRESIDING OFFICER. The
impede." As the distinguished Senator anonymity serves the interest of the clerk will report the amendment.
from Delaware mentioned, it seems we country. Moreover, this legislation The assistant legislative clerk read
might be arguing and nitpicking over would insure an appropriate balance as follows:
words here. One talks about the between Individual rights and the ab- The Senator from Rhode Island (Mr.
"intent" to impair the Intelligence ac- solute necessity for secrecy In intelli- CHAFEE) for himself, Mr. JACxsoN, Mr.
tivities of the United States, and the gence collection vital to the security of ABDNOR, Mr. COCHRAN, Mr. D'AMATO,
other talks about "reason to believe" the Nation. Mr. DENTON, Mr. DOMENICI, Mr. EAST,
that the disclosure of these names The prohibitions contained in S. 391 Mr. GARN, Mr. GRASSLEY, Mr. GOLD-
would impair the intelligence activities are directed at punishing those indi- WATER, Mr. HAYAKAWA, Mr. HATCH,
of the United States. viduals who intentionally and without Mrs. HAWKINS, Mr. HELMS, Mr. HvM-
First, let me say this: We have been authorization disclose information PHREY, Mr. LAXALT, Mr. LUGAR, Mr.
working on this entire subject now for identifying intelligence officers and MATTINGLY, Mr. NICKLES, Mr. SCHMITT,
over 2 years. I will say, how delighted I agents of the United States. This bill Mr. SIMPSON, Mr. Symms, Mr. THUR-
am that we have this legislation on is not intended -to apply to members of MOND, Mr. TOWER, Mr. WALLOP, and
the floor now. In one way or another the press or others engaged in legiti- Mr. WARNER) proposes an amendment
it seems apparent that legislation is mate activities protected by the first numbered 1256:
going to pass dealing with this prob- amendment. It is intended, however, On page 3, beginning with line 13, strike
lem. That in itself is a mammoth step to stop those people who are in the out all through "agent," on line 19 and
forward. Indeed, in the Judiciary Com- business of "naming names" of our insert in lieu thereof the following:
mittee, the committee language passed covert agents. "(c) Whoever, in the course of a pattern of
unanimously, and the amendment We must keep In mind the special activities intended to identify and expose
that I presented barely failed by a needs of the brave and unsung em- covert agents and with reason to believe
vote of 8 to 9. But if it had passed I ployees of the intelligence agencies of that such activities would impair or impede
suspect that that language would have this country. We must remember, too, the foreign intelligence activities of the
also been approved by the committee. that uninformed policymakers cannot United States, discloses any information
In other words, one way or another properly serve the people, and without agent identifies
to any i a an individual ulth o a covert is unanimity, I believe, in this the information these employees pro- ago y individual not authorized to re-
ceive classified information,".
there that we will pass legislation to vide, the American people will suffer.*
curb the disclosure of the names of al- ? Mr. GRASSLEY. Mr. President, ear- Mr. CHAFEE. Mr. President, the
leged agents working for our intelli- her this year, as a member of the guts of this debate here this afternoon
gence agencies. Senate Judiciary Committee, I voted and Monday and Tuesday morning
As I mentioned earlier, we have in favor of S. 391, as originally intro- presumably will revolve around the
found this to be the principal sore spot duced. I intend to reaffirm my strong amendment I have submitted.
with those who serve this country support for the bill here today and I As I previously indicated, the rest of
abroad. How Is it possible, they say, hope that we can restore the bill to its the language of this legislation ap-
that fellow Americans can disclose original form. pears to be noncontroversial and that
names of alleged agents who are serv- In this bill, as in other bills that the is a tremendous step forward because
ing at their personal peril around dif- Judiciary Committee has studied in such certainly was not true some 2
ferent trouble spots of the world? Why this and the prior session, we have years ago when we first presented this
do we permit this to happen? been asked to balance first amend- language.
When this legislation is passed, and ment rights against the Government's On this amendment, in which I am
the House has passed language similar ability to "suppress" information nec- joined as a principal cosponsor by Sen-
to that in my amendment, and if my essary to protect the men and women ator JACKSON of Washington,' and by
amendment prevails, which I hope It of the intelligence community, whose some 25 other Senators, I now review a
will, then we will not have to go to secret work is vital to the Nation's se- bit of history, if I might, on the back-
conference on this subsection. If my curity. ground of the amendment.
amendment fails, then we will go to Some have opposed this legislation. The language which I am presenting
conference, but one way or another The opposition states that the bill un- along with Senator JACKSON Is the lan-
language is going to come out. An act dermines first amendment rights. But, guage which was originally proposed
is- going to be passed by this body, that overwhelmingly, it has been viewed and referred to the Senate Committee
will wrestle in a determined manner and it should be viewed as an attempt on the Judiciary. It emerged from the
with this problem, to bolster or protect our covert intelli. Subcommittee on Security and Terror.
Let me briefly give a bit of history, if gence and counterintelligence agents. ism headed by the distinguished Sena-
I might, but before proceeding to that, I have been convinced beyond a rea- tor from Alabama, and then was con-
let me call up my amendment. sonable doubt that this legislation is sidered in the full committee. There
(By request of Mr. DENTON the fol- needed to prohibit the systematic ex- this language was rejected by a very
lowing statement was ordered to be posure- of agents' identities under cir- close vote of 9 to 8.
printed in the RECORD:) ' cumstances that pose a clear threat to In my judgment, the committee lan-
? Mr. THURMOND. Mr. President, intelligence activities vital to the Na- guage, which was adopted-and let me
this bill represents the culmination of tion's defense. I am also convinced call it the committee amendment-
a great deal of work during at least that this bill goes to great lengths to substantially weakens the language
two Congresses. Legislation of this distinguish between the ghoulish busi- which was originally in the bill which
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February 25, 1982 CONGRESSIONAL RECORD -SENATE
was adopted by the House, and which
is in my amendment.
Therefore, I am presenting this
amendment, which passed in the
House of Representatives last fail by a
vote of 354 to 56. It is the language
which the Senate Intelligence' Com-
mittee originally adopted in 1980 by a
vote of 13 to 1.
Now, President Reagan has stated
that our language-and by our lan-
guage I mean the Chafee-Jackson lan-
guage-is "far more likely to result in
an effective law that could lead to suc-
cessful prosecution," than the commit-
tee language.
Mr. President, the key difference be-
tween the committee and the Chafee-
Jackson language relates to the stand-
ard of proof that would be used in a
prosecution. The committee language
requires that there be an effort to
identify and expose agents with the
intent to impair or impede the intelli-
gence activities of the United States.
Our language requires that there be
a pattern of activities intended to
identify and expose agents, with
reason to believe that such activities
would impair or impede the foreign in-
telligence activities of the United
States. In other words, the difference
is the committee language depends on
the subjective intent of the person en-
gaged in naming names whereas our
language uses an objective standard of
proof.
(Mr. HAYAKAWA assumed the
chair.)
Mr. CHAFEE. I will explain this fur-
ther as we go along. But, at this point,
let me say that it places the Intent of
the defendant under our language
where it should be in a criminal act-
on the intention. to perform the harm-
ful act. The committee language focus-
es on the subjective intent of the de-
fendant to do harm.
The reasons for these differences
rises out of the debate we had on this
issue last year. I would like to summa-
rize some of the background of the
debate.
In January of 1980, over 2 years ago,
Senator JACxsoN and I Joined Senator
MoYNiHAN' in Introducing the Intelli-
gence Reform Act of 1980 (S. 2216).
That bill contained a section designed
to protect agent identities which de-
pended on a subjective standard of
intent-in other words, when we origi-
nally introduced this bill, we also had
this subjective standard of Intent.
What did the person intend to do
inside their breast?
Now, when we had the hearings
before the Senate Intelligence Com-
mittee in June of 1980, a number of
witnesses expressed concern with this
language. For example, Mr. Floyd
Abrams testified that he did not sup-
port the intent standard for the fol-
lowing reasons:
I don't think that their intent-
Meaning the accused-
ought to bear on your decision. They-
The accused-
Do bad things maybe for bad reasons but
the question I would urge on you at least Is
whatever the intent is. whether you ought
to start down the road of deriding what can
be said or written by people -who don't
happen to work for the Government,
whether you like or approve of their Intent
or not. I don't think that factor ought to be
that they don't like the CIA. They may not
have a constitutional right to publish' cer-
tain information but they have absolute
right to like or dislike what they choose.
And Mr. Morton Helperin, of the
ACLU, said about the same thing. He
said:
I think that a citizen has the right to
impair or impede the functions of a govern-
ment agency whether it is the Federal
Trade Commission or the CIA. The fact
that your intent is to Impair or impede
those agencies does not make your activity a
crime if it Is otherwise legal.
Now, because of these concerns
about intent, the staffs of the Senate
Intelligence Committee and the Jus-
tice Department began working on an
alternative standard of proof which
would remove the problems of the spe-
cific intent standard. Eventually, we
came up with language which utilized
what they call an objective standard
of intent. The Carter administration's
Justice Department endorsed this lan-
guage.
In a letter to Chairman Bayh, who
was then the chairman of the Senate
Intelligence Committee, the Deputy
Attorney General of the United
States, Mr. Renfrew, wrote as follows
about this objective standard:
This formulation iubstantlally alleviates
the Constitutional and practical concerns
expressed by the Justice Department with
regard to earlier versions of this bill that hi-
eluded a requirement that prohibited disclo-
sures be made with a specific "Intent to
impair or Impede" U.S. Intelligence astivi-
ties.
Because of the significance of this matter,
however, it has been our view from the be-
ginning that such legislation as Is enacted
must be fair, effective and enforceable. Our
position has been and remains that the ab-
sence of an intent element in this legislation
will accomplish this goal.
Let me just briefly summarize what
we are talking about here. Under the
committee language, it is said that you
have to have an intent to impair the
intelligence activities of the United
States before you are guilty. We say
that is not the right standard. Some-
body might be impairing intelligence
activities but not with the intent to do
so. Somebody might be disclosing
names of alleged CIA agents and
saying.
I'm not doing It to impair the Intelligence
activities of the United States, I am doing
it to Improve intelligence activities. These
agents are misbehaving all over the world.
They shouldn't be monkeying around In
foreign countries. We ought to be collecting
intelligence with satellites or whatever it
might be. I'm not out to poll or impair the
Intelligence activities of the United States,
I'm out to Improve theac.
Now, that is what we can the subjec-
tive standard of Intent. How do we get
into that person's breast and deter-
mine whether he is out to improve or
S 1171
he is out to impair the intelligence ac-
tivities of the country?
The problem is why we do not use
that standard. Instead, we look at the
pattern of activities of a person: If
time after time after time he exposes
the names of agents and he has a
reason to believe that It impairs intel-
ligence activities, he Is culpable. Any
reasonable person would know that by
naming names you are going to impair
the foreign intelligence activities of
the United States.
Now, there is the crux of the prob-
lem between this different language.
It is not that we are dancing on the
head of a pin here. There are substan-
tial differences.
Mr. President, the Department of
Justice under President Carter ? and
the Department of Justice under
President Reagan both believe that
the better standard is the one in our
amendment. This language protects
the individual and, furthermore, it en-
hances the chances of obtaining a
prosecution at the same time.
Now, I note that the language of
this amendment is the only language
that has been endorsed by both the
Carter and the Reagan administration
Justice Departments. The Issues which
this legislation involves have been
heard In detail. Our wording In this
amendment has been carefully worked
out and refined to its current state.
Let me address for a moment the
committee language.
The reason we are here this after.
noon, of course, is to strengthen the
intelligence capabilities of the United
States by prohibiting the unauthor-
ized disclosure of intormatlon identify-
ing certain intelligence offices of our
country. This bill places criminal pen-
alties on those enemies of our intelli-
gence community engaged In this per-
nicious activity called naming names.
'There is no dispute that those who
are for the,committee language and
those who are for the amendment
both object to the activity of the
naming of names. The difficulty comes
in whether the eomgaittee language
will accomplish the purpose of placing
criminal penalties on this activity be-
cause the committee language depends
on specific Intent language. That is
the standard in the committee bill. It
offers serious prosecutorial problems
in the case of an Individual that claims
that his intent Is to inform the public
or even to improve U.S. intelligence.
Let me refer to the testimony of Mr.
Richard Willard, who is the Attorney
General's counsel for Intelligence
policy, on October 6, 1941. Mr. Willard
said:
The problem is that Senator Bwmec's ap-
proach would invite ev ,alon of the bill be-
cause people like Mr Wov and others
would nay, "Well, my Intent was to help In-
telligence activities by disclosing unsavory
activities," and that would give them a de-
fense that they would seek to use. That is
why we felt the objective reason-to-believe
standard which Senator CHAP= introduced
to be better.
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S 1172 CONGRESSIONAL RECORD -- SENATE February 25, 1982
In the Judiciary Committee markup sure of national defense information This standard is more carefully tai-
of the original bill on October 6, 1981, which the person has "reason to be. lored to the specific harm the statute
Senator BIDEN stated that: lieve could be used to the injury of the seeks to prevent than the more gener-
All the folks we all agree we want to get United States or to the advantage of alized standard of injury to the United
can be captured, figuratively and literally, any foreign nation." There is an exam- States or advantage to a foreign
under the language I'am about to introduce. ple of the "reason to believe." power.
However, it is my concern that this Similarly, 42 U.S.C., section 2274(b) As Judge Learned Hand observed,
is not the case. Many individuals who punishes disclosure of restricted there may be many cases where information
indulge in "naming names" have sug- atomic energy data "with reason to be- may be advantageous to another power and
gested that their purpose, their lieve such data will be utilized to yet not injurious to the U.S.
"intent," is not to impair or impede injure the United States or to secure Judge Hand said that in United
U.S. intelligence activities. Their pur- an advantage to any foreign nation." States against Heine, 151 F.2d 813,
pose, they say, is to improve these ac- There are other examples. 815(1945).
tivities. For these individuals, the sub- Therefore, the standard which we The language of our amendment fo-
jective intent standard provides a loop- have adopted in this amendment is cuses solely on injury to the United
hole big enough to drive a truck consistent with past legislation where States. In other words, it does not talk
through. Congress has punished disclosure
about
for-
For example, in testimony before without requiring proof of specific its w being advantageous tf rther
the House Permanent Select Commit- than power. It even restricts it further
tee on Intelligence on January 31, intent, but, rather, proof that the rea- than that-it involves not just broad
t81, WInam Schaap of the Covert sonably foreseeable result would cause injury to the United States, but specif-
I llim Schaap had Covert injury to the United States or advan- is injury to the U.S. foreign intelli-
Action say: tage to a foreign power. gence activities.
Our publication'... is devoted to exposing Of course, the question may be So, unlike statutes that merely re-
what
what we view as the abuses of the Western
asked whether the objective stand- quire reason to believe that informa-
agency, primarily though not and-the "reason to believe" stand- tion could be used to the injury of the
exclusively the CIA, and to expose the and-will be sustained by the courts. United States, the Government must
people responsible for those abuses: We be- Clearly, we do not want to write some- prove that the reasonably foreseeable
lieve that the best thing for the security thing into this very important stat- result of this disclosure would be to
and well-being of the United States would ute-which both sides are anxious to impair or impede particular U.S. Gov-
be to limit severely, if not abolish, the CIA. get passed-that will not be sustained ernment functions that are exception-
Our intent both in exposing the abuses of by our courts.
the intelligence agencies and in exposing ally important to the conduct of U.S.
the people responsible for those abuses is to In the opinion of the Carter admin- foreign and military defense and that
increase the moral force of this Nation not istration and in the opinion of the depend upon secrecy for their success.
to lessen it. That the CIA would assume our Reagan administration Justice Depart- An even greater safeguard is the re-
intent is simply to impair or impede their ment, this standard, the Chafee-Jack- quirement that the disclosure must
foreign intelligence also seems likely. Pa- son standard, will survive first amend- occur "in the course of a pattern of ac-
triotism is to some extent in the eyes of the ment and other challenges in the tivities intended to identify and expose
The implication of this testimon courts. covert agents." The term. "pattern of
that Schaap does not beimoe his Past examples of where the "reason activities" is defined in section 606(10)
that Mr. S h "impair or impede" his to believe" standard has been upheld of this statute, the bill that we are dis-
intention is to
activities. His activity impede" would be: cussing today. The pattern of activi-
inte
t llige Gorin against the United States, ties require a series of acts with a
in
pa.
It would seem, then, the could 1944, where the "reason to believe" common purpose and objective. It is
mount ul esee,vt en, that ha under c uld was characterized as sufficient not one disclosure, it is a pattern of ac-
committee language, based on his the tiviU.S. Court; eign intelligence activities.
prosecution because there is no crimi- Schmeller against the United States, Thus, there must be proof not only
nal liability for his "pattern of activi- sixth circuit, 1944, where "reason to with regard to a particular disclosure,
ties." believe" was upheld with no require- but also with respect to the pattern of
Mr. President, it has been suggested ment to prove specific intent; activities in which the disclosure
that the objective standard of criminal U.S. against Achtenberg, eighth cir- occurs. The evidence must show that
liability under subsection 601(c) de- cuit, 1972, where the "reason to be- such activities were undertaken both
parts from previous statutes, punish- lieve" standard was deemed sufficient- to identify and to expose covert
ment for disclosure in the national se- by precise for the criminal statute to agents. A person must, in other words,
curity field. Some say, "We have never withstand an attack for vagueness and be engaged in the enterprise of ferret-
heard of such a thing. Every criminal overbreadth; ing out the identities of individuals in-
statute has intent. You have to have U.S. against Bishop, ninth circuit, volved in covert intelligence activities
intent on the part of the accused. 1979, where the "reason to believe" and exposing their intelligence rela-
What do you do coming up with lan- standard was held to be sufficiently tionship to the United States, This
guage which talks about `reason to be- precise to withstand a vagueness standard is -more rigorous than the
lieve?' " attack; current statutes punishing disclosure
But the facts are that the standard U.S. against Progressive, Inc., Wis- of other types of national defense in-
we have adopted is consistent with ex- consin District Court, 1979, where the formation.
isting espionage statutes and, if any- "reason to believe" standard withstood The "pattern of activities" require-
thing, offers greater protection for an attack for vagueness and over- ment is designed to narrow the scope
first amendment rights, breadth, of criminal liability without imposing
All the existing espionage laws In comparison to many existing stat- undue burdens on the prosecution of
which can apply to those without au- utes the language which we have offenses under section 601(c). It was
thorized access to classified informa- placed in this amendment includes developed in consultation with the De-
tion require that an individual be en- language which narrows the scope of partment of Justice, which strongly
gaged in an activity with one of two criminal liability and therefore affords endorses the language as preferable to
things: Either there be an "intent," greater protection for first amend- the "subjective intent" requirement in
which is true in some statutes, or that ment rights. There must be proof that the committee standard.
there be a "reason to believe," as we the disclosure was made with reason The alternative of requiring specific
have here, and sometimes both. to believe that it "would impair and intent to impair or impede intelligence
For example, 18 U.S.C., section impede the foreign intelligence activi- activities which the committee lan-
793(e), punishes unauthorized disclo- ties of the United States." . guage requires would place unneces-
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S 1174 CONGRESSIONAL RECORD - SENATE February 25, 1982
be made to have this legislation enacted this cannot be shown to have come from classi- munication" of national security Informa-
year. fied sources. This has been the most contro- tion offenses with regard to which searches
Yours sincerely, versial part of Identities legislation, and it is and seizures may be conducted under the
STANSFIELD TURNER. also the key provision from the standpoint exceptions provided in those subsections.
of the legislation's potential effectiveness in Should you have any questions concerning
THE DIRECTOR, deterring unauthorized disclosures. We have the views expressed in this letter, please do
CENTRAL INTELLIGENCE AGENCY, concluded that the objective standard of not hesitate to contact my Legislative Coun-
Washington, D.C., April 29, 1981. proof contained in S. 391 (i.e., "reason to be- sel directly. We look forward to working
Hon. EDWARD P. BOLAND, lieve that such activities would impair or with the Committee to ensure prompt en-
Chairman, Permanent Select Committee on impede. . .") is preferable to the subjective actment of Identities legislation.
Intelligence, House of Representatives, standard set forth in H.R. 4 (i.e., "with the Sincerely,
Washington, D.C. intent to impair or impede..."). This pref- WILLIAM J. CASEY.
DEAR MR. CHAIRMAN: During the course of erence is based upon a number of factors, _
the recent hearings on the proposed "Intel- including prospects for successful prosecu- OFFICE OF THE ATTORNEY GENERAL,
ligence Identities Protection Act" before the tions under the differing formulations. We Washington, D.C., July 20, 1981.
Subcommittee on Legislation, the following have discussed this matter at great length Hon. STROM THURMOND,
requests were made of me: with the Department of Justice, and we be- Chairman, Committee on the Judiciary,
Representative Ashbrook asked, as a lieve that our preference for S. 391 is in U.S. Senate, Washington, D.C.
drafting service, that we provide him with accord with the Department's views. DEAR MR. CHAIRMAN: It is my understand-
language for a "false Identification" provi- Mr. Fowler's second question goes to the ing that the Committee on the Judiciary is
sion that would meet constitutional muster; Issue of the so-called "Kennedy Compro- presently considering S. 391, the roposed
Representative Fowler asked for the raise," printed In the 30 September 1980 Intelligence Identities Protection Act, which
Agency's official views on the Senate ver- Congressional Record and set forth herein
sion of subsection 501(c) and the so-called below: was introduced by Senator Chafee on behalf
"Kennedy Compromise" suggested in the "Whoever, in the course ok a pattern of of himself and a number of distinguished
closing days of the 96th Congress. activities undertaken for the purpose of un- Members of the Senate. My representative
As to Representative Ashbrook's request, covering the identities of covert agents and testified in favor of this bill earlier this year
one such version is presently found in sub- exposing such identities (1) in order to in hearings before the Subcommittee on Se-
section 800(d) of H.R. 133, the "Intelligence impair or Impede the effectiveness of covert curity and Terrorism. I would like to take
Officer Identity Protection Act of 1981," in- agents or the activities in which they are this opportunity to assure you of my strong
troduced by Representative Charles E. Ben- engaged by the fact of such uncovering and personal support for this legislation.
nett (D., Fla.). Mr. Bennett's formulation exposure, or (2) with reckless disregard for The recent decision of the Supreme Court
contains a harm standard, that is, prejudice the safety of covert agents discloses any in- In Haig v. Agee . emphasized that
to the safety or well-being of any officer, formation that identifies an individual not (m)easures to protect the secrecy of our
employee, or citizen of the U.S. or adverse authdrized to receive classified information, Government's foreign intelligence oper-
impact on the foreign affairs functions of knowing that the information disclosed so ations plainly serve compelling national se-
the United States. The Bennett formulation identifies such individual and that the curity interests." The Court rejected Agee's
provides a readily available solution. The United States is taking affirmative measures First Amendment claim with the following
formulation that appears in H.R. 133 Is as to conceal such Individual's classified intelli- analysis:
follows: gene relationship to the United States, "The revocation of Agee's passport rests
Whoever falsely asserts, publishes, or shall be fined not more than $15,000 or im. in part on the content of his speech: specifi-
otherwise claims that any individual is.an prisoned not more than three years, or cally, his repeated disclosures of intelligence
officer or employee of a department or both. operations and names of intelligence per-
agency of the United States engaged in for- This formulation appears to raise the sonnel. Long ago, however, this Court recog-
eign intelligence or counterintelligence ac- -same kinds of problems of proof of intent nized that "No one would question but that
tivities, where such assertion, publication, which the Department of Justice believes a government might prevent actual obstruc-
or claim pgejudices the safety or well-being are present in the current formulation of tion to its recruiting service or the publica-
of any officer, employee, or citizen of the the subsection 501(c) offense in H.R. 4, since tion of the sailing dates of transports or the
United States or adversely affects the for- the Government would have to show that number and location of troops." Near v.
eign affairs functions of the United States, the ? disclosure was made "in order to" Minnesota, 283 U.S. 697, 716 (1931), citing
shall be Imprisoned for not more than five impair or impede the effectiveness of covert Chafee, Freedom of Speech 10 (1920).
years or fined not more than $50,000, or agents or their activities. A defendant could Agee's disclosures, among other things, have
both." assert that his activities and his disclosures the declared purpose of obstructing intelli-
In the course of the testimony by Richard were done "in order to" to accomplish some gence operations and the recruiting of intel-
K. Willard, the Attorney General's Counsel other purpose. Inclusion of the alternative ligence personnel. They are clearly not pro-
for Intelligence Policy stated that, in his "reckless disregard" standard in any 501(c) tected by the Constitution. The mere fact
opinion, a "false Identification" provision type provision would be of doubtful value. It that Agee is also engaged In criticism of the
containing a "life endangerment" element is difficult to understand what is meant by Government does not render his conduct
would be both enforceable and constitution- "reckless disregard" in the context of the beyond the reach of the law."
al. I would stress, however, that such a Identities Bill, since Congress, by enacting I believe this Supreme Court decision
physical harm standard would not be suit- Identities legislation is in effect making a should resolve any lingering doubt that may
able for the sections of the Bill which cover finding that unauthorized disclosures of exist concerning the constitutionality of the
correct identifications of intelligence per- identities do in fact threaten the personal proposed legislation.
sonnel. The physical safety of our people is, safety of intelligence personnel. A reckless Speedy enactment of legislation to protect
of course, a matter of grave concern, but the disregard standard would apparently mean covert agents' identities deserves the high-
Identities legislation is designed to deal pri- that the Government would have to make est priority, and I strongly recommend that
marily with the damage to our intelligence an additional showing of physical endanger- S. 391 be favorably reported out of the Com-
capabilities which is caused by unauthorized ment in each particular case. This, from a mittee.
disclosures of identities, whether or not a deterrent perspective, would appear to be Sincerely,
particular officer or source is physically inadvisable. WILLIAM FRENCH SMITH,
jeopardized in each individual case. Additionally, the Committee may wish to Attorney General.
As to the first question posed by Mr. consider one technical amendment to H.R. -
Fowler, i.e., the Agency's views on the Sen- 4, not mentioned in the course of the recent THE WHITE HOUSE,
ate's version of subsection 501(c), we start Identities hearings, but nonetheless dictated Washington, September 14, 1981,
from the basic premise that H.R. 4 and S. by enactment in the 96th Congress of S. Hon. STROM THURMOND.
391 are essentially similar. Both are careful- 1790, the "Privacy Protection Act of 1980," U.S. Senate,
ly and narrowly crafted Bills which could ef- legislation signed into law by President Washington, D.C.
fectively remedy the problems posed by the Carter on 14 October 1980 and designed to DEAR SENATOR THURMOND: It is my under-
unauthorized disclosures of intelligence modify the Supreme Court's decision in standing that the Senate Judiciary Commit-
identities, and withstand challenge on con- Zurcher v. Stanford Daily. The enactment tee will consider S. 391, The Intelligence
stitutional grounds. Thus, the CIA would of this legislation has a bearing on our ef- Identities Protection Act of 1981, on Tues-
support enactment of either H.R. 4 or S. forts to secure passage of Identities legisla- day. September 15.
391. As you know, the Bills do differ with re- tion. The Identities legislation should In. Passage of legislation to provide criminal
spect to the standard, of proof that would elude a provision amending subsections sanctions against those who make it their
apply to individuals who have not had au- 101(a)(1) and 101(b)(1) of the Privacy Pro- business to identify and expose our intelli-
thorized access to classified information, tection Act so as to include the proposed gence officers is a key element of my pro-
and which would criminalize their disclo- new title of the National Security act of gram to rebuild and strengthen US intelli-
sures of identities even if these disclosures 1947 among the "receipt, possession, or com- gene capabilities. Nothing has been more
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February 25, 1982 CONGRESSIONAL RECORD SENATE S 1175
damaging to our, intelligence effort than the
pernicious, unauthorized disclosures of the
names. of those officers whom we send on
dangerous and difficult assignments abroad.
Attorney General Smith advises that the
Senate version of this legislation, S. 391, is
legally sound, both from a prosecution per-
spective and in the protection it provides for
constitutional rights of innocent Americans.
Any change to the Senate version would
have the effect of altering this carefully-
crafted balance.
I cannot overemphasize the importance of
this legislation. I hope I can have your sup-
port in reporting out S. 391 without amend-
ment.
Sincerely,
CENTRAL INTELLIGENCE AGENCY,
Washington, D.C., September 30, 1981.
EDITOR,
The New York Times,
New York, N.Y.
DEAR SIR: Your editorial of September 28,
1981, "A Dumb Defense of Intelligence," in-
correctly represents - the position I have
taken on legislation to protect the identities
of covert agents. I have consistently sup-
ported and advocated the Senate language
in S. 391 and H.R. 4, as amended and passed
by the House on September 23, as more cer-
tain to be effective in ending the pernicious
unauthorized disclosures which are jeopar-
dizing our nation's intelligence efforts and
threatening those engaged or assisting in
difficult and dangerous assignments
abroad.
Opponents of this cruicial legislation, In an
effort to delay and obstruct final enact-
ment, are quick to allege its constitutional
infirmity. However, the legislation In its cur-
rent form has had the bipartisan support of
the Carter and now the Reagan White
House and Justice Departments. We are
confident that the legislation will pass con-
stitutional muster. There is no doubt that
disclosures of agent Identities constitute a
clear danger to this nation's first line of de-
fense, its intelligence apparatus. Recently,
the U.S. Supreme Court in Haig v. Agee
stated that such "conduct ... presents a
serious danger to American officials abroad
and serious danger to the national security"
and that these disclosures " ... clearly are
not protected by the Constitution."
We can no longer afford delay. Every day
means more unauthorized disclosures, more
operations compromised, more lives endan-
gered, more loss of confidence in our ability
to keep secrets on the part of foreign intelli-
gence services willing to cooperate with us.
The Senate should delay no longer.
Sincerely,
WILLIAM J. CASEY,
Director of Central Intelligence.
STATEMENT SY THE PRESIDENT
I am pleased today to sign into law H.R.
3454, the Intelligence Authorization Act for
Fiscal Year 1982. This act represents a sig-
nificant first step toward achieving revital-
ization of our Nation's intelligence commu-
nity. The President of the United States
must have timely, accurate, and insightful
foreign intelligence in order to make sound
national defense and foreign. policy deci-
sions. This act helps to assure that we will
have the necessary intelligence information
.to make these difficult decisions.
The Congress has with this act authorized
appropriations sufficient to assure that we
continue to have the world's best and most
professional intelligence service. The Con-
gress has also provided new administrative
authorities to the heads of the Nation's
three major intelligence agencies to assure
that they can perform: their misaipns more
effectively. I hope that the spirit of cooper-
ation between the Legislative and Executive
Branched which resulted 1n this act will con-
tinue as we move to rebuild our Nation's in-
telligence capabilities.
I would also note my hope that I will soon
be able to sign the Intelligence Identities
Protection Act, which has passed the House
and is awaiting floor action in the Senate. I
strongly support enactment of this measure,
.preferably in the form in which it was
passed by the House of Representatives; we
must act now to protect our intelligence per-
sonnel, who serve our Nation under what
are often difficult and dangerous circum-
stances.
THE WHITE Housz,
Washington, February 3, 1982.
Hon. HOWARD H. BAKER,
Majority Leader, U.S. Senate,
Washington, D.C.
DEAR SENATOR BAKER: Legislation to make
criminal the unauthorized disclosure of the
names of our intelligence officers remains
the cornerstone for the improvement of our
intelligence capabilities, a goal that I know
we share. 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. Unfortunately, these disclosures con-
tinue with impunity, endangering lives, seri-
ously impairing the effectiveness of our
clandestine operations, and adversely affect-
ing morale within our intelligence agencies.
Last September the House of Representa-
tives overwhelmingly passed the Adminis-
tration-supported version of the Intelligence
Identities Protection Act. The Senate is
soon to take up consideration of this legisla-
tion, and you will have before you two ver-
sions. While I believe that both versions are
fully protective of constitutional guaran-
tees, Attorney General Smith and I firmly
believe that the original version, first intro-
duced by Senator. Chafes and others, is far
more likely to result in an effective law that
could lead to successful prosecution.
I strongly urge you and each of your col-
leagues to support the carefully-crafted
Chafee-Jackson amendment to S. 391. I
cannot overemphasize the importance of
this legislation.
Sincerely,
RONALD REAGAN.
Mr. CHAFEE. Mr. President, for
those who argue that the administra-
tion does not care whether it gets the
Chafee-Jackson language or the com-
mittee language, I should like to read
the President's letter to Senator
BA mm and Senator ROBERT C. BYRD
this month.
DEAR SENATOR BAKER: Legislation to make
criminal the unauthorized disclosure of the
names of our intelligence officers remains
the cornerstone for the improvement of our
intelligence capabilities, a goal that I know
we share. 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. Unfortunately, these disclosures con-
tinue with impunity, endangering lives, seri-
ously impairing the effectiveness of our
clandestine operations, and adversely affect-
ing morale within our intelligence agencies.
Last September the House of Representa-
tives overwhemingly passed the Administra-
tion-supported version of the Intelligence
Identities Protection Act. The Senate is
soon to take up consideration of this legisla-
tion, and you will have before you two ver-
sions. While I believe that both versions are
fully protective of constitutional guaran-
tees. Attorney General Smith and I firmly
believe that the original version, first intro-
duced by Senator Chafee and others, is far
more likely to result in an effective law that
could lead to successful prosecution.
I strongly urge you and each of your col-
leagues to support the carefully-crafted
Chafee-Jackson amendment to S. 391. I
cannot overemphasize the importance of
this legislation.
Sincerely,
RONALD REACAN.
It seems to me that this letter makes
the administration's support for our
amendment perfectly clear.
Finally, it has been argued by propo-
nents of a subjective intent standard
that, in 'order to be constitutional
under Supreme Court precedents, a
law punishing disclosure must require
proof of an intent to do harm. For ex-
ample, on May 8, 1981, a witness
before the Subcommittee on Security
and Terrorism of the Senate Commit-
tee on the Judiciary stated that:
Professor Scalia ? ? ? expressed the clear
view that the absence of a bad purpose
would make the statute unconstitutional.
This assertion is not, however, sup-
ported by careful analysis of the appli-
cable cases and constitutional princi-
ples.
In fact, Prof. Antonin Scalia of the
University of Chicago Law School has
testified with respect to the reason to
believe standard in section 801(c):
If the character of the information were
defined narrowly enough. If the individual
against whom the law is directed were de-
fined narrowly enough, I think such a provi-
sion might well be Gus "1981 House
Intelligence Committee."
Given the extremely limited type of
information covered and the narrow
class of individuals engaged in a pat-
tern of activities intended to identify
and expose covert agents, there is
little risk of unconstitutionality in S.
391 as originally introduced.
The central constitutional question
presented by any prohibition against
disclosure is: What danger does the
disclosure create? It may be that if a
person intends to producle harm, his
intention may itself increase the risk
that the harm will occur. But the Su-
preme Court. has held that.all the cir-
cumstances of the case must be taken
into account before the actual danger
can be assessed for first amendment
purposes. Disclosure may be innocuous
in fact-It may have no reasonable
likelihood of creating a danger the
Government is entitled to prevent-
even though the intentions of the
person are of a different character.
Our amendment adopts standards that
are directly relevant to the central
constitutional concern of showing the
reasonable likelihood of serious harm.
In summary, the Chafee-Jackson
amendment contains language which
is consistent with existing statutes
punishing disclosure of national secu-
rity information; it narrows the scope
of criminal liability without imposing
undue obstacles to. effective enforce-
ment; it meets the constitutional re-
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S 1176 CONGRESSIONAL RECORD - SENATE February 25, 1982
quirements of the first amendment;
and it will provide for the effective
prosecution of those who spend their
time naming names.
Mr. President, over the past 5 years,
more than 2,000 names of alleged CIA
officers have been identified and pub-
lished by a small group of individuals
whose stated intention is to expose
U.S. intelligence operations. I think it
is time we legislated an end to this
vendetta against the American intelli-
gence community.
We send fellow Americans abroad on
dangerous missions; missions which
are directed and ordered by our Gov-
ernment. We owe it to them to do our
utmost to protect their lives as they go
about our business. S. 391, with our
amendment, will provide this protec-
tion, and I urge my colleagues to sup-
port the Chafee-Jackson amendment
and final passage of this bill.
Mr. President, there is no debate or
argument on this floor that somebody
is more for the first amendment than
anyone else. There, is no argument on
this floor as to whether one group is
more for successful prosecution, more
for stemming the publication of the
names of these agents than another.
There is none of that. The argument
here solely is how we can best craft
this language to accomplish the goals
we all seek. It is my view, the view of
two administrations, the view of the
Attorney General of the United
States, and the view of the President,
that the language of this amendment
best accomplishes that goal, best per-
mits us to move forward with the suc-
cessful prosecution of these despicable
persons who publish the names of
agents of the United States.
Mr. BIDEN. Mr. President, the hour
is getting late. We are going to have a
chance, as I said, on Monday to get
into great detail on this, but I should
like to take 5 minutes now to make
some initial rebuttal to the points
raised by the Senator from Rhode
Island. I am going to pick only a few
of the things he has said today.
The first comment the Senator
made in the early part of his state-
ment was as to how we get into the
breast of the person making the state-
ment. The phrase is, "How do we get
into the breast of the person making
the statements?"
I suggest that we get into the breast
of the person making the statements,
or disclosing the name, the same way
we get into the breast of a defendant
accused of robbery or murder or rape
or larceny or anything else. We get
into the breast by looking at all the
circumstances surrounding what that
person did.
I should also like to point out that
the way the judges usually tell the
juries to get into the breast of a
person accused of crime is by instruct-
ing the juries on what intent means.
They say the following, which is from
section 14.03, "Specific intent," Devitt
and Blackmar, vol. I, Federal Jury
Practice and Instructions, third edi-
tion 1977.
Remember, we have a defendant,
and the prosecution says, "This guy
killed Cock Robin." Then the judge
says, "You have to find that he spe-
cifically meant to kill Cock Robin." He
had to have intent to kill Cock Robin.
It could not have been an accident.
What I mean by intent is this: "Specif-
ic intent," as the term implies, means
more than the general intent to
commit the act. To establish specific
intent the Government must prove
that the defendant knowingly did an
act which the law forbids (knowingly
failed to do an act which the law re-
quires,) purposely intending to violate
the law.
This is the important part: "Such
intent may be determined from all the
facts and circumstances surrounding
the case.
"An act or failure to act is knowingly
done if done voluntarily and intention-
ally, and not because of mistake or ac-
cident or other innocent reason."
The Senator goes on and makes a
very compelling argument. I should
note for the Record that he is a very
worthy adversary on this matter. It
sounded good to me. As a matter of
fact, he had me believing it for a
second.
The Senator says we have these guys
who are publishing these bulletins
saying, "Well, I intended to help
America when I disclosed the name of
Joe Doakes, who is an agent of the
CIA, so don't find me guilty because,
although I intended something, I did
not intend to hurt. I intended to
help."
I submit that under the reason to
believe standard, he can say the same
thing. He can stand before the jury
and say: "Ladies and gentlemen, I had
reason to believe this would help
America when I disclosed the name of
Joe Doakes."
I had reason to believe that because
I know from great experience in the
area that we are not trusted around
the world because of the CIA. They do
not like us because of the CIA, and the
real reason, the way to help America is
to uncover CIA agents. So I have
reason to believe that this would help,
not impede.
So if he would be able to stand
before a jury and say with any degree
of credibility, "Ladies and gentlemen
of the jury, I did not intend to hurt,"
he could also stand before the jury
and say, "Ladies and gentlemen of the
jury, I did not have reason to believe
this would hurt; I had reason to be-
lieve it would help."
So, if it applies to intent, it is kind of
a specious argument to say it also im-
plies to reason to believe, but the
kicker is that in either case the jury is
going to sit back and say, "Now, wait a
minute, what did he do here? Did he
intend to do this? Let us look at all the
facts and circumstances. Did this guy
mean-sure, he intended to publish be-
cause he published-but did the intend
to hurt?"
We make distinctions. For example,
we have all read in the newspaper and
if my colleagues will read the RECORD
they will read all the exposures about
Wilson and Terpil, former CIA agents.
What are they doing? They are fooling
around with Qadhafi in Libya and
they are selling arms, and they are
doing all these things.
Were it not for the innovative and
anxious press intending to help Amer-
ica, not impede it, we would have not
found out very much about that. It
was not the CIA that came to us and
told us these guys were out fooling
around. It was the press, an inquiring
press. I want the press going out there
intending to expose - those people.
They publish the name of the CIA
agent. They did it with the intent to
help America. In this case they did.
According to the jury instruction,
that is up to a jury to believe. Does it
help America for a press person to
expose the name of an agent who may
be a mole in the CIA, who may be sell-
ing arms to an enemy?
That is a question for the jury to
decide just like it is if Mr. Schaap
stood before the jury and said, "Well,
when I published all these names in
this bulletin I intended to help."
The jury makes that decision just
like they would in "reason to believe."
They say, "Biden, you are making a
pretty convincing argument here. Why
do you not just accept `reason to be-
lieve' then?"
The problem with "reason to be-
lieve" is it has what we call in the law
a chilling effect on that reporter who
wants to go out there and expose
something that is harming the United
States, wants to find the mole in the
CIA, if there is one, wants to find out
whether that jerk Terpil is in fact sell-
ing weapons to Qadhafi and aiding ter-
rorism, wants to expose the fact that
there may be a CIA agent involved in
international drug trafficking.
Now, he knows under the intent
standard that he can stand before a
jury and say: "Hey, I was not intend-
ing to hurt; I was intending to help
the CIA, and let me tell you the facts;
the facts are this guy was dealing in
drugs. The facts are this guy is a KGB
agent, not a CIA agent. The facts are
that this guy is selling arms to terror-
ists. Jury, what do you think? Do you
think I am meaning to help or hurt?"
We do not even get to that in the
"reason to believe" standard because
we establish a "pattern of activities"
easily. We do not have to have them
publish 50 names on 50 different days
or 3 names, or 20 names, but only 1.
All we have to do is establish this one
reporter went around and spoke to 10
people and said, "What about Mark
here? What about it? What do you
know about him?"
And you go and go to you, "What do
you know about him?"
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And go to you and say, "What do
you know about him?
And go to the Senator from Califor-
nia and say, "What do you know about
him?"
I am establishing a pattern of activi-
ty. The activity Is that I am running
around and I am going to end up ex-
posing Joe Doe. I am going to publish
Joe Doe's name.
Under the law the prosecution will
be able to walk into court and say:
"Wait, the pattern of activity. Did you
not go around and speak to 25 people
to find this out and discover this guy's
name?"
"Oh, yes, I did that."
All right. There we have the pattern
of activity.
"When you went to the CIA and said
what do you know about Joe Doakes.
did not the pressman for the CIA
.fellow look at you and say, 'Wait a
minute. I have to tell you right now
you are on slippery turf. You may very
well be jeopardizing the security of
the United States of America. I want
to warn you of that right this
minute."'
Now, OK. The reporter says,
"Now there is a 'reason to believe'
standard in the law. The CIA just told
me I better not go any further because
I am going to hurt the United States
of America if I go any further."
Now, does that mean that I have al-
ready crossed the threshold of the
"reason to believe"? Does that mean if
I get dragged into court even though I
am out to help, not hurt, and even
though I am exposing a jerk like
Terpil or Wilson, even though I am
uncovering a KGB agent in the CIA-
have I met the second standard al,
ready?
Let us face it. Whether you are talk-
ing to a CIA man or whether you are
talking to someone in the Defense De-
partment or whether you are talking
to a press secretary for a U.S. Senator,
they are not going to encourage you to
investigate anything. So what do we
all instinctively do? We are going to
say, "You better be careful." And now
when this guy has the story or that
woman has her story they go to their
editor and they sit down with the
editor and say:
"You know, I have a story that is
going to blow this place wide open. I
found out we have some CIA agents
who are selling arms to Libyans and
they are hurting us, they are lying to
the Government."
And the editor is going, to say, "Now,
wait a minute, are you all ready to go
to jail?"
No; I do not want to do that.
OK. Let me ask you: How do you
know it is true?
"Well, I tell you here it is true," and
you lay it out.
They say, "Now, are you sure you
are not missing something?" What
happens if you publish this and this is
really a double cover for something
else that is behind all of this and
Wilson and Terpil are really triple
agents, not double agents?
They say. "What did they tell you
out at the agency?" "They told me I
am on thin ice. They told me I better
not go any further."
Wait a minute, gee, dots that mean
we have reason to believe that? Should
not I have done this?
That is not a spot to put the press
in. That is not what we are about.
That is not where we are.
So the reason to believe ends up
being an incredibly subjective stand-
ard rather than the objective standard
that the Senator is genuinely trying to
accomplish.
He really means, and I believe every
word he says, he really and truly
means that this is the best way to pro-
tect not only America. the CIA agent.
but also our civil liberties and a free
press.
I respectfully argue and suggest that
is not the case. And when you get
down to the point again that he made
so eloquently, the Senator from
Rhode Island said this guy, Schaap-
and I. want to note for the Rscoan not
former Gov. Milton Schaap--Schaap
says in testimony, "I do not intend to
hurt. I intend to help."
And the Senator from Rhode island
says, "Well, he is going to be able-to
say to a jury," and implies they will
probably believe him and he probably
will get away with it. Again let me em-
phasize that if he can stand before the
jury and say, "I did not intend to hurt,
I intended to help." he can also stand
before the jury and say. "I had no
reason to believe that I was ljuting; I
had every reason to believe I was help-
ing, and it is a bit of a red herring to
argue whether or not this is going to
make it easier or harder before a jury
because they are going to look behind,
they are going to look at the totality
of the acts.
But what in fact is at stake is wheth-
er or not some reporter will believe
that they will have a chance to make
the arguments as to what they intend-
ed to do.
In the espionage statute-and we
will go into this in great detail
Monday, because I am sure the Sena-
tor will be back to it-the court usual-
ly takes two portions of the statute to
come up with the conclusion that
there was intent. The point I really
want to make here is I spent 2 years
doing a study for the intelligence
Committee on the espionage laws of
this country and in fact with the help
of Mr. Gitenstein, who was then on
the Intelligence Committee and now
on the Judiciary Committee staff, we
went back and looked at every damage
assessment report for the previous 10
years on leaks in espionage activities
to write a tough espionage statute.
You know what we found out? We
found out there is hardly any success-
ful leak prosecutions under the Espio-
nage Act, hardly any.
I would respectfully suggest to you
that one of the reasons why it is diffi-
S 1177
cult, from the testimony we had, is,
they said, "Hey, the prosecution is
constantly coming and saying 'We
cannot make a case with the "reason-
to-believe" portion of the statute.
That gets in our way, does not help
us.' "
I hope we are going to hear from, on
Monday, my colleague from Pennsyl-
vania, a former prosecutor, on the
other side of the aisle, who, I think,
will make the case fairly eloquently
that it would be harder to get a convic-
tion under the "reason-to-believe"
standard than under the "intent"
standard.
I will also argue in some detail on
Monday the constitutionality of the
standard of "reason-to-believe."
I would just like to note for the
record and put in the RECORD a list of
over 100 law professors, the most out-
spoken one of whom is Prof. Philip
Kurland of the University of Chicago.
They all say that, the "reason-to-be-
lieve" language is unconstitutional as
it is applied in the proposed statute.
One other point I would like to
make-there are many more to make,
but just one other point at this junc-
ture-the Senator from Rhode Island,
as he always is. is completely candid,
and let me be completely candid. The
argument is not whether or not this
administration wants the Bides lan-
guage or the Chafee language more. It
wants the Chafee language more,
there is not any question about it.
This says, "We want
the Chafee language," but they also
said in testimony before our commit-
tee, they have always said repeatedly,
that the Biden language can get the
job done.
What we are about here is getting
the job done of putting these folks in
jail who are, in fact, attempting to
impede or impair the foreign intelli-
gence activities of the United States of
America.
I suggest to you that in our public
and private conversations the adminis-
tration feels fairly strongly about it.
But they also feel fairly strongly
about the Senator from Rhode Island,
and I would. too, if I were a Republi-
can President. He is one of the most
competent people they have, and if he
came to me and said, "This is impor-
tant to me, but I think this is right-
not that it is important to me person-
ally-but this is the way to go, and
both of them will get the job done, but
the Chafee language will do the job," I
would sure say, "The Chafee one is
the one I want."
I admit that this administration does
not think-it has consistently not
thought-that the Chafee language
could be unconstitutional. So looking
at it from the President's side of the
ledger he says, "Both can get the job
done. One is constitutional, one is in-
troduced by BnxN. not a very strong
supporter of mine, and the other one
is introduced by the Senator from
Rhode Island. Which one am I going
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to go with? Of course, I am going to go
with the Chafee one."
But that is not really the issue. The
issue is, on my side of the argument,
"Look, it simply comes down to this:
Why take a chance on its being uncon-
stitutional? Why take a chance on it
being harder to get a prosecution be-
cause the statute is struck down and
go with the Chafee language when we
both admit they both get the job
done?"
The Chafee side of the argument, I
would suspect, comes down in the final
analysis to, "Look, even though they
can both get the job done, they are
both constitutional, why fool around
with the Biden language because I
think ours can get the job done better
and faster?"
I mean, we are really arguing on the
margins here, and I am constrained to
wind up now because there is a very
strong supporter of this position of
the committee's who wants to speak
now. Again I will have much more to
say, but I would like very much to
submit for the RECORD, and I ask
unanimous consent, a list of all those
law professors who concurred with the
position I just took, and a letter from
Professor Kurland be printed in the
RECORD, along with a letter from Laur-
ence H. Tribe, professor of law at Har-
vard University to Senator KENNEDY in
September of 1980.
There being no objection, the mate-
rial was ordered to be printed in the
RECORD, as follows:
PROFESSOR KURLAND ON S. 2216
Perhaps the sharpest and most succinct
scholarly criticism of S. 2216 came from
Philip B. Kurland, Professor of Law at the
University of Chicago and one of the na-
tions leading constitutional scholars:
Hon. EDWARD KENNEDY,
Chairman,
Committee on the Judiciary,
Washington, D.C.
DEAR SENATOR KENNEDY: In response to
your request, I can frame my opinion on the
constitutionality of Sec. 501(c) very precise-
ly. I have little doubt that it is unconstitu-
tional. 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. Although
I recognize the inconstancy and inconsisten-
cy in Supreme Court decisions. I should be
very much surprised if that Court, not to
speak of the lower federal courts, were to le-
gitimize what is, for me, the clearest viola-
tion of the First Amendment attempted by
Congress in this era.
With all good wishes,
Sincerely yours,
PHILIP B. KURLAND.
We believe that Sections 601(c) of S. 391
and 501(c) of H.R. 4, which would punish
the disclosure of the identity of covert CIA
and FBI agents derived solely from unclassi-
fied information, violate the First Amend-
ment and urge that they be deleted.
Charles Abernathy, Professor of Law,
Georgetown University Law School.
Bruce Ackerman, Professor of Law, Yale
University Law. School.
Barbara Aldave, Professor of Law, Univer-
sity of Texas Law School.
George Alexander, Professor of Law, Uni-
versity of Santa Clara Law School.
Judith Areen, Professor of Law, George-
town University Law School.
Peter L. Arenella, Professor of Law,
Rutgers University School of Law.
Richard Arens, Professor of Law, Univer-
sity of Bridgeport School of Law.
Charles E. Ares; Professor of Law, Univer-
sity of Arizona College of Law.
Robert Aronson, Professor of Law, Univer-
sity of Washington School of Law.
Frank Askin, Professor of Law, Rutgers
University School of Law.
Barbara Babcock, Professor of Law, Stan-
ford University.
Fletcher Baldwin, Professor of Law, Uni-
versity of Florida College of Law.
Elizabeth Bartholet, Professor of Law,
Harvard University Law School.
Patrick Baude, Professor of Law, Indiana
University School Law School.
Paul Bender, Professor of Law, University
of Pennsylvania Law School.
Carolyn Bratt, Professor of Law, Univer-
sity of Kentucky College of Law.
Ralph S. Brown, Jr., Professor of Law,
Yale University Law School.
Burton Caine, Professor of Law, Temple
University School of Law.
Oscar Chase, Professor of Law, New York
University School of Law.
Paul Chevigny, Professor of Law, New
York University School of Law.
Michael Churgin, Professor of Law, Uni-
versity of Texas Law School.
Richard A. Chused, Professor of Law,
Georgetown University Law School.
Robert Emmet Clark, Professor of Law
Emeritus, University of Arizona College of
Law.
Sherman Cohn, Professor of Law, George-
town University Law School.
Tom A. Collins, Professor of Law, College
of William and Mary, Marshall-Wythe Law
School.
Vern Countryman, Professor of Law, Har-
vard University Law School.
Alan M. Dershowitz, Professor of Law,
Harvard University Law School.
Norman Dorsen, Professor of Law, New
York University School of Law.
Steven B. Duke, Professor of Law, Yale
University Law School.
Thomas I. Emerson, Professor of Law
Emeritus, Yale University Law School.
Nancy S. Erickson, Professor of Law, Ohio
State University College of Law.
David B. Filvaroff, Professor of Law, Uni-
versity of Texas Law School.
Caleb Foote, Professor of Law, University
of California Law School.
Jack Getman, Professor of Law, Yale Uni-
versity Law School.
Steve Gillers, Professor of Law, New York
University School of Law.
David Goldberger, Professor of Law, Ohio
State University College of Law.
Peter Goldberger, Professor of Law, Vil-
lanova University School of Law.
Louise Graham, Professor of Law, Univer-
sity of Kentucky Law School.
Arthur S. Greenbaum, Professor of Law,
Ohio State University College of Law.
Linda S. Greene, Professor of Law,
Temple University School of Law.
Trina Grillo, Professor of Law, Hastings
College of Law.
Daniel Halperin, Professor of Law,
Georgetown University Law School.
Charles Halpern, Professor of Law,
Georgetown University Law School.
Joel Handler, Professor of Law, George-
town University Law School.
Michael C. Harper, Professor of Law,
Boston University Law School.
Lawrence Herman, Professor of Law, Ohio
State University College of Law.
Morton J. Horwitz, Professor of Law, Har-
vard University Law School.
John M. Hyson, Professor of Law, Villan-
ova University School of Law.
Stanley Ingber, Professor of Law, Univer-
sity of Florida College of Law.
Louis A. Jacobs, Professor of Law, Ohio
State University College of Law.
Peter Jaszi, Professor of Law, American
University, Washington College of Law.
Arthur Kinoy, Professor of Law, Rutgers
University School of Law.
Lewis Kornhauser, Professor of Law, New
York University School of Law.
John R. Kramer, Professor of Law,
Georgetown University Law School.
Stanley K. Laughlin, Professor of Law,
Ohio State University College of Law.
Howard Lesnick. Professor of Law, Univer-
sity of Pennsylvania Law School.
John Leubsdorf, Professor of Law, Boston
University Law School.
Allan Levine, Adjunct Professor of Law,
Cardozo School of Law.
Sanford Levinson, Professor of Law, Uni-
versity of Texas Law School.
John Levy, Professor of Law, College of
William and Mary, Marshall-Wythe Law
School.
Lance Liebman, Professor of Law, Harvard
University Law School.
Jeffrey A. Meldman, Professor of Law,
Massachusetts Institute of Technology.
Louis Menand, Professor of Law, Massa-,
chusetts Institute of Technology.
Roy Mersky, Professor of Law, University
of Texas Law School.
Elliot Millstein, Professor of Law, Ameri-
can University, Washington College of Law.
Arvil Morris, Professor of Law, University
of Washington School of Law.
Jack Murphy, Professor of Law, George-
town University Law School.
Winston P. Nagan, Professor of Law, Uni-
versity of Florida College of Law.
Barry Nakell, Professor of Law, University
of North Carolina Law School.
James C. Oldham, Professor of Law,
Georgetown University Law School.
Joseph A. Page, Professor of Law, George-
town University Law School
Richard D. Parker, Professor of Law, Har-
vard University Law School.
Daniel Partan, Professor of Law, Boston
University Law School.
Cornelius Peck, Professor of Law, Univer-
sity of Washington School of Law.
Willard H. Pedrick, Professor of Law, Ari-
zona State University College of Law.
Leroy Pernell, Professor of Law, Ohio
State University College of Law.
Michael Perry, Professor of Law, Ohio
State University College of Law. -
Daniel H. Pollitt, Professor of Law, Uni-
versity of North Carolina Law School.
Andrew Popper, Professor of Law, Ameri-
can University, Washington College of Law.
Scot Powe, Professor of Law, University of
Texas Law School.
John Quigley, Professor of Law.
Robert Sedler, Professor of Law, Wayne
State University Law School.
Louis Michael Seidman, Professor of Law,
Georgetown University Law School.
Ed Sherman, Professor of Law, University
of Texas Law School.
Andrew Silverman, Professor of Law, Uni-
versity of Arizona College of Law.
James Simon, Professor of Law, New York
Law School.
Aviam Soifer, Professor of Law, Boston
University Law School.
Philip Sorensen, Professor of Law, Ohio
State University College of Law.
Girardeau A. Spann, Professor of Law,
Georgetown University Law School.
Roy Spence, Professor of Law, University
of Arizona College of Law.
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better to err on the side of maybe not
being constitutional but allegedly pro-
tect the civil liberties of more of the
people involved, those publishing, by
the "reason-to-believe" standard.
I should note to you that none of
the people we are worrying about pro-
tecting agrees with the Senator from
Rhode Island. None of the newspaper
people, none of the people who are the
ones who would be in the third catego-
ry, the good folks, the good guys, the
white-hat folks whom the Senator
from Rhode Island says he believes he
can protect better by the "reason-to-
believe" standard happen to agree
with him.
So in the final analysis I am saying
why not err on the side of sticking
with standard language which we
know in 9999/ioo percent gets the job
done, and gets the job done with the
fewest constitutional problems.
Let me finish by saying that there is
more to be said, which I will say later.
I yield the floor.
Mr. QUAYLE. Mr. President, today
we take up S. 391, the Intelligence
Identities Protection Act, a bill which
would make criminal the disclosure of
the identities of covert intelligence of-
ficers and agents. Different penalties
and elements of proof are required de-
pending on whether the defendant is a
present or former employee of the
Government and depending on wheth-
er or not he had authorized access to
classified information.
There is a crying need for this legis-
lation which is long overdue. We
should all be aware of the tragedies
which have occurred in the recent past
as the result of published allegations
that a certain individual was a covert
intelligence officer or agent. While I
am certain that there are many exam-
ples, I will mention only two: the
abominable assassination in 1975 of
Richard Welch after being identified
as a CIA officer by Philip Agee in
Counterspy magazine, and the at-
tempted assassination of a U.S. Em-
bassy employee just 48 hours follow-
ing a published allegation by Louis
Wolf in the Covert Action Information
Bulletin that the employee worked for
the CIA.
Mr. President, the destructive effect
of such disclosures must be stopped. I
believe, and the public recognizes, that
there is a compelling need for the leg-
islation we are debating here today.
The controversy and disagreement
about S. 391 really swells around one
section of the bill-section 601(c)
which addresses itself to that class of
persons who identify a covert agent
but who have not had access to classi-
fied information. It is this section in
which the balance is most precarious
between the undeniable need to pro-
tect our intelligence agents and the
equally compelling need to protect
first amendment rights.
Mr. President, I believe that section
601(c) as reported by the Senate Judi-
ciary Committee maintains this crucial
balance. That section reads:
(c) 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, dis-
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 United States is
taking affirmative measures to conceal such
individual's classified intelligence relation-
ship to the United States, shall be fined not
more than $15,000 or imprisoned not more
than three years, or both.
This language, the so-called intent
language, is narrowly drawn to define
and punish specific conduct. The
intent language is intended to reach
the activities of the Covert Action In-
formation Bulletin and similar groups,
and it does reach them. I am confident
that section 601(c) as drafted by the
Judiciary Committee will allow suc-
cessful prosecution of those who are
engaged in the destructive activity of
naming names.
This legislation is not intended to
chill legitimate debate on intelligence
issues or to censor stories such as
those we read daily in the New York
Times or Washington Post. The Judi-
ciary Committee language does not do
that. In my view, it is constitutional
and effectively carries out the objec-
tive of the legislation which is to deter
individuals who name names with the
intent to harm the United States and
our intelligence agencies.
In order to successfully prosecute
such individuals, S. 391 as passed by
the Judiciary Committee would re-
quire the Government to prove each
of the following elements beyond a
reasonable doubt:
That the disclosure was intentional; That
the covert relationship of the agent to the
United States was properly classified infor-
mation and that the defendant knew it was
classified; That the defendant knew that
the Government was taking affirmative
measures to conceal the agent's relationship
to the United States; and
That the disclosure was made as part of
an overall effort to identify and expose
covert agents for the purpose of impairing
or impeding the foreign intelligence activi-
ties of the United States through the mere
fact of such identification and exposure.
This is a narrowly drawn statute-as
all statutes which touch upon rights
protected by the first amendment
should be-and I believe that its con-
stitutionality will be sustained by the
courts.
I am much less certain, however,
that a bill which incorporates the
original language of section 601(c)
could pass constitutional muster. That
language, which adopts a reason-to-be-
lieve standard rather than the intent
standard drafted by the Judiciary
Committee, is overly broad and could
indeed abridge the exercise of first
amendment rights by legitimate jour-
nalists. Certainly the journalists be-
lieve that it would.
Every major national press group in
the country opposes replacing the
intent standard with the reason-to-be-
lieve standard. Their concerns have
been continually expressed to me in
letters and meetings over the past sev-
eral months. I would like to quote
from a letter signed by the representa-
tives of the Society of Professional
Journalists, the American Newspaper
Publishers Association, the National
Newpapers Association, the Associ-
ation of American Publishers, the Re-
porters Committee for Freedom of the
Press and the National Association of
Broadcasters. One section of their
letter reads:
The "reason to believe" language would,
on its face, apply to a reporter who seeks to
inform Congress and the public about cor-
rupt, illegal, improper or questionable intel-
ligence activities under circumstances where
the identities of present or former covert
agents are necessary to the story. One
major news article which might not have
been published under this formulation
could be the recent revelations about Frank
J. Terpil. The "reason to believe" language
places editors and reporters in the position
of having to risk a criminal violation or
prosecution in order to publish news reports
which they honestly believe to be in the
public interest.. In this sense, we are per-
suaded that the Judiciary Committee ver-
sion of the bill, with its "specific intent"
standard, presents far less serious pre-publi-
cation problems for the press.
My opposition to a "reason-to-be-
lieve" standard, however, has evolved
from additional concerns that go
beyond the constitutional questions
raised by the journalistic and legal
community.
First of all, intent is the appropriate
element for a criminal statute.
"Reason-to-believe" implies a negli-
gence standard and this is not a negli-
gence statute.
Second, the objective "reason-to-be-
lieve" standard: "What would a rea-
sonable man believe would be the re-
sults of his actions," raises serious pro-
secutorial questions. For example, it
would force the Government to make
public at the trial more classified in-
formation than it would want to and
certainly more than is required in a
prosecution under the "intent" stand-
ard.
Under a reason-to-believe standard it
suddenly becomes relevant to the de-
fendant's case what effect the disclo-
sure had or would have on certain in-
telligence activities. In other words,
the objective "reasonable man" stand-
ard necessarily forces the Government
to reveal what the agent, whose cover
was blown, was doing in the country to
which he had been assigned. Such in-
formation would not have to be re-
leased under the "intent" standard be-
cause it would be irrelevant. A
"reason-to-believe" standard could,
thus, chill not only legitimate journal-
ism, but also the very prosecutions
which this legislation is designed to
bring about.
The White House, the Justice De-
partment and the CIA have all stated
that either an "intent" standard or a
"reason-to-believe" standard would be
acceptable to them. They profess to
believe that both are constitutional
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and enforceable. Though. they have
expressed their preference for the
"reason-to-believe" standard, their top
priority seems to be the immediate
passage of a bill which would end the
destructive and sinister enterprise of
naming napies.
I believe that S. 391 as reported by
the Senate Judiciary Committee will
accomplish that end, and will do so in
an effective, efficient, and constitu-
tional manner, and I urge my col-
leagues to support it.
Mr. President, I want to pay particu-
lar, reference and compliments to my
distinguished freshman colleague,
Senator DENTON, who has been very
active in this and other matters. He
has made an ingnense contribution to
the committee on which we serve to-
gether, and he will continue to make
an immense contribution to this
Senate.
I also want to pay my respects to the
distinguished Senator from Rhode
Island who continues to be one of the
.most respected Members of the
Senate.
But I must say to these two distin-
guished gentlemen that I. disagree
with them on this issue. But I do hope
that we pursue this debate Monday
and Tuesday in the spirit that the
Senator from Rhode Island discussed
in concluding his remarks.
This issue is not an issue over who
supports civil rights and who supports
the first amendment. We all do. The
issue is not over who supports pros-
ecuting those who violate' a very strict
code of conduct, or over who wants to
have agent identity legislation passed,
because we all do.
The question comes down to what
statutory language is the preferable
language to achieve both of those
goals.
There has been a lot of discussion
these last few weeks on televising the
proceedings of the U.S. Senate. I
happen to be a supporter of that. But
those who argue on the other side
keep pointing out the difference be-
tween this body and the other body.
They talk about the U.S. Senate as a
deliberative body, and they applaud
how the U.S. Senate takes its time on
very important issues. I hope that
Members of this distinguished body do
take their time on this very important
issue and that we think it through. I
hope that we do not jump to an emo-
tional conclusion, simply choosing
whichever emotion happens to trigger
us the most, whether it is the first
amendment rights or the need to pro-
tect our Nation's security.
? I hope that we think through this
process very clearly and very deliber-
ately. I hope that we resolve this issue
in the way the legislation was reported
from the Judiciary Committee. This is
the proper resolution to the issue.
Basically, Mr. President, the reason-.
to-believe language is not preferable to
the intent language for two simple
reasons. First, I think there is a legiti-
mate constitutional question on the
reason-to-believe language. As the dis-
tinguished Senator from Delaware
pointed out, 100 constitutional lawyers
and professors in this country have
voiced their concerns about the prob-
lems of constitutionality.
If we really want to have a constitu.
tional bill, why not go with the intent
language that we know is going to be
constitutional and not take a chance
that the courts are going to throw the
whole bill out? That is why it is per-
plexing to me to hear the administra-
tion say that they prefer the Chafee
and Denton language to the Biden lan-
guage, because there is no doubt that
the courts would find intent to be con-
stitutional.
Second, Mr. President, when you are
dealing with a criminal statute, intent
is the proper standard of conduct.
Reason to believe is a negligence
standard in civil cases. A criminal stat-
ute such. as this should have the mini-
mal legal ingredients of what criminal
acts do constitute, and that is intent.
Mr. President, again, I commend my
colleagues. I hope that we proceed
along the lines of this debate in the
next few days, a line of facts, a line of
reasoning, and not one of simple reac-
tion to motions without a thorough
study.
The debate may be intense at times.
That is what our debate is all about. If
we take our time, I am certain that
the Senate will come down to the lan-
guage, and I am hopeful it will come
down to the language, as reported by
the Senate Judiciary Committee. The
members of that committee put in a
lot of hours. They are the ones that
put in a lot of work. A majority of that
committee has concluded that the
intent language is preferable. I am
hopeful that a majority of this body,
will agree with them.
I yield the floor.
Mr. DENTON'addressed the Chair.
The PRESIDING OFFICER. The
Senator from Alabama.
Mr. DENTON. Mr.. President, I
thank my distinguished freshman col-
league from Indiana and return his
sentiments of respect. I admire the
equanimity, with which both he and
the Senator from Delaware have ad-
dressed the issue. I totally concur that
we should do so with great delibera-
tion.
It is my fear that the. complexity of
the wording and of some of the
thought patterns applied to the
rationale are going to defy the com-
prehensions of many of our colleagues
who, when they come in here to vote,
do not have much time to deliberate. I
hope there is some attendance to the
speakers to the debate which is taking
place so, that our collective judgments
will be relatively enlightened.
. I believe the Senator from Delaware,
the minority manager, made reference
to the President's preference for the
Chafee language on the basis of his
being of the same -party, but I may
have missed the implication.
S 1181
Mr. BIDEN. If I may, I think he pre-
fers the Chafee language because he
prefers it, but it is also an added incen-
tive that it is not the language of the
Senator from Delaware.
Mr. DENTON. The point I would
like to make is that the Carter admin-
istration Justice Department also pre-
ferred the Chafee language.
Mr. CHAFEE. Mr. President, the dis-
tinguished Senator from Delaware
always has kernels for thought and
cogitation. I have been pondering the
comment he made that the President
was for the Chafee-Jackson language
because I was Republican. All weekend
I am going to be pondering why the
Carter administration was also for this
language. Did they look at me as a po-
tential convert? I cannot fathom in
any way why they too would be sup-
portive of my language. Admiral
Turner was a Democratic appointee, as
head of the CIA. Attorney General
Renfrew was a Democratic appointee
of the Justice Department. I am still
waiting to discover the answer. So I
am looking forward to the debate on
Monday and hope I find out what par-
ticular appeal I might have had to the
Carter administration 2 years ago.
Mr. DENTON. Mr. President, I
would. like to go on record in fully sup-
porting the amendment to section
601(c) offered by my friend and distin-
guished colleague from Rhode Island.
I truly regard it as the best and most
appropriate standard by which to
criminalize this. statute for naming
names resulting from a study of un-
classified sources.
I must acknowledge before this
body, and before anyone covering this
session, that I am not a lawyer, but I
am supposed to be good at logic. In
fact, I did not have to take a course
once because I answered a question
posed at the beginning of a college
course in logic that the man posed for
over 50 years of teaching. I do think
that I understand enough of the law
to apply logic to this situation.
It seems to me that we have an in-
teresting inversion here, in that we
have Democrats and nominal liberals
propounding an approach which will
be intrusive, one which will involve a
subjective standard, one which the dis-
tinguished Senator from Delaware
proposes. I believe the use of the
"intent" standard will open a Pando-
ra's box in this particular case, which
defeats the objective of avoiding witch
hunts.
We have the reason-to-believe stand-
ard in which the defendant's political
belief, past conduct, critical remarks
about the Government, et cetera, are
all irrelevant. We have a finding by
the committee, the very committee to
which the Senator from Indiana re-
ferred, that:
The disclosure of such relationships to un-
authorized persons is detrimental to the
successful and efficient conduct of foreign
intelligence, counterintelligence, and coun-
terterrorism activities to the United States,
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Which tends to support the reason-
to-believe standard as a method of
proof.
But if you go into intent, you get a
chilling effect on expression, because
you then have to start talking about
the man's of woman's past speech or
activities, which would be directly rele-
vant to proving intent.
Clearly, the specific intent standard
creates a far greater potential for in-
trusive investigations into individual
political beliefs. I do not want to be a
witch hunter, but I think that, in this
particular area, you open that Pando-
ra's box. The witch hunt would be un-
dertaken frequently as the only means
of establishing intent, and perhaps
more tragically than that witch hunt-
ing is that the effort to establish
intent would all too frequently be un-
successful. In spite of the fact that the
accused might be guilty, it would be
unsuccessful.
So if we let this erroneous commit-
tee amendment stand, which stood on
a vote of 9 to 8 with two administra-
tions who are expert in this, one
Democratic, one Republican, standing
against it with, I have to believe, much
more expertise and learned fore-
thought about the constitutionality, I
believe that we will not only be tempt-
ing prosecutors into witch hunts, but
we will be letting down those coura-
geous men and women who risk their
lives on a daily basis to preserve the
security of this country.
It is the KGB which is laughing at
this debate, and yet it is being con-
ducted on both sides with good will. I
think the statute with the specific
intent standard rather than a reason-
to-believe standard would be counter-
productive. It would purport to pro-
vide a solution to a serious problem of
unauthorized disclosure of intelligence
identities without actually doing so.
It would raise the specter of the in-
trusive techniques and the witch
hunts.
Mr. EAST. Mr. President, today we
are considering S. 391, the Intelligence
Identities Protection Act of 1981. This
bill, which has almost 50 cosponsors,
of whom I am proud to be 1, is the
most significant proposal for the
reform and strengthening of the intel-
ligence community that the Senate
has considered this year. I believe that
it is absolutely essential that we pass a
bill that would protect the classified
identities of American intelligence of-
ficers-not just any bill but an effec-
tive law that would deter the exposure
of their identities, one that is both
constitutionally sound and will pros-
ecute those who have specialized in
the contemptible and pernicious prac-
tice of systematic exposures. I believe
that until we pass such a law, there is
little purpose in talking about the
need for a stronger CIA or FBI. In
short, we must put our money where
our mouth is.
I wish particularly to address the
issue of the constitutionality of the
proposed reason to believe, or objec-
tive, standard that was in the original
bill as introduced by the Senator from
Rhode Island. The objective standard
was deleted in the Judiciary Commit-
tee by a single vote and an intent or
subjective standard was adopted.
But, Mr. President, it was the objec-
tive standard that I and our 40-odd
colleagues chose to cosponsor when we
endorsed S. 391. It is this standard also
that was overwhelmingly endorsed by
the House of Representatives and is
now in H.R. 4, the House version of S.
391. Finally, It is the objective stand-
ard that is endorsed by the intelli-
gence community itself-the Central
Intelligence Agency, the Federal
Bureau of Investigation, and the Asso-
ciation of Former Intelligence Offi-
cers. I wish to confine my remarks to a
defense of the reason to believe stand-
ard and to urge my colleagues to sup-
port and endorse it with me.
We are being told, Mr. President,
that the objective standard of the
reason to believe language is unconsti-
tutional, that it fails to define a bad
purpose, that its enactment would
jeopardize the effectiveness of the bill
and also that it would have a chilling
effect on legitimate discussion of intel-
ligence policy and activities in the
public forum. I would like to address
these charges seriatim, but I would
like first to point out that some of
them are mutually contradictory.
If reason to believe is unconstitu-
tional, it would be overturned by the
courts. This is the argument of its op-
ponents, who say that they would like
an effective bill. Yet they also argue
that reason to believe would have a
chilling effect. If it is to be overturned,
then it obviously could not have a
chilling effect. We cannot accept the
mutually exclusive propositions that a
law would be both effective and inef-
fective.
In regard to constitutionality, I
would like to point out that nine Fed-
eral criminal statutes make use_ of the
reason to believe standard, and these
include both the Espionage Act and
Atomic Energy Act. Moreover, five
Federal court cases have upheld the
reason to believe language as constitu-
tional grounds for prosecution. The
most significant of these cases is-that
of Gorin v. United States, (312 U.S. 19
(1941)), in which the U.S. Supreme
Court upheld the reason to believe
standard in the Espionage Act of 1917
against the defendant's claim that the
language was vague and indefinite-
precisely the same charge that is being
made today and with as little founda-
tion.
While it is true, Mr. President, that
the intent standard is also constitu-
tional and -that the Department of
Justice has stated that an intent
standard would be acceptable, the ad-
ministration, the Department of Jus-
tice, and the CIA have been emphatic
that they all prefer the reason-to-be-
lieve standard, that reason to believe is
constitutional and' is a more effective
prosecutorial tool.
Why Is reason to believe preferable
to intent? In order to convict a defend-
ant under the intent standard, the
burden of proof is far more difficult to
establish and actually requires more
instuusive investigation than reason to
believe. Proof of intent requires in-
quiry into the state of mind of the de-
fendant before or during the commis-
sion of the offense. In the context of
the intelligence identities bill, it would
also require inquiry into the political
and personal associations of the de-
fendant-whether, for example, he
had been involved with Counterspy or
Covert Action Information Bulletin,
what his attitude toward intelligence
gathering was, and other beliefs and
associations. Since those who oppose
reason to believe on constitutional and
civil libertarian grounds are concerned
about such intrusive inquiries, I would
think they would prefer the far less
intrusive standard of reason to believe.
Reason to believe simply means
what any reasonable man would be-
lieve. Thus, use of this standard would
not require any intrusive investigation
into a defendant's background nor the
presentation of evidence concerning
his political and personal associations.
For this reason, it is preferable to the
civil libertarian as well as to the pros-
ecutor.
The argument that reason to believe
would have a chilling effect on the ex-
ercise of first amendment. rights and
on discussion of intelligence activities
is also without merit and has been
grossly exaggerated by the opponents
of the bill in the Congress and the
media.
I would point out first that the U.S.
Supreme Court in a 7-to-2 decision this
summer in the case of Haig against
Agee found that:
Agee's disclosures [of' covert agents],
among other things, have the declared pur-
pose of obstructing intelligence operations
and the recruiting of intelligence personnel.
They are clearly not protected by the Con-
stitution.
If the disclosure of agents' identities
is not protected by the Constitution,
then a law punishing disclosure of
Identities cannot have a chilling effect
on the exercise of legitimate rights of
expression. The chilling effect argu-
ment is therefore without foundation.
However, the language of the
reason-to-believe section has been
carefully drafted to avoid interference
with legitimate discussion and investi-
gation. It is absolutely essential, Mr.
President, to bear in mind that reason
to believe is only one of the six ele-
ments of proof required for conviction
in this bill.
Section 601(c), as originally intro-
duced, contains the reason-to=believe
language, which would make it illegal
for a person to reveal the identity of a
covert agent if that person:
First. Knows that the persons to
whom he reveals the information are
not authorized to receive classified in-
formation;
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Second. Knows that the information
revealed in fact identifies a covert
agent;
Third. Intends to disclose informa-
tion that identifies a covert agent;.
Fourth. Knows that the Govern-
ment is taking affirmative measures to
conceal the identity;
Fifth. Engages in "a pattern of activ-
ities intended to identify and expose
covert agents"; and
Sixth. Has reason to believe that
such activities would impair or impede
the foreign intelligence activities of
the United States.
In sum, before a person can be pros-
ecuted under the reason-to-believe lan-
guage, the prosecutor must prove all
five elements of proof in addition to
the reason to believe element.
Furthermore, one of these elements
is already an intent standard, and it
must be noted that in those parts of
the bill that establish defenses and ex-
ceptions, there are three areas of dis-
closures that are excluded from any
prosecution, including the revealing of
a covert identity to the House or
Senate Intelligence Committees. This
latter exclusion is intended to allow
for the disclosure to responsible au-
thorities outside the intelligence com-
munity of abuses or unauthorized in-
telligence activities without danger of
prosecution to the disclosing party.
To prosecute a journalist who inves-
tigates intelligence activities, there-
fore, the prosecutor must show that
every one of the elements applies.
There are few if any legitimate jour-
nalistic investigations in which the re-
vealing of names or identities would be
useful, and it should be noted that the
entire investigation of the Church
committee into CIA activities took
place without a single revelation of a
covert identity. In other words, pre-
venting the disclosure of agents' iden-
tities would not cripple'our ability to
learn of or prevent intelligence abuses.
It is almost inconceivable, Mr. Presi-
dent, that legitimate discussion of in-
telligence activities could be prevented
or in any way discouraged by the
reason to believe language that is pro-
posed.
I urge my colleagues to join with me
in supporting the amendment of S. 391
to adopt the reason-to-believe stand-
ard that is so necessary for the protec-
tion of our intelligence agencies and
their personnel, for the security of our
country, and for the strengthening
and reform of the intelligence commu-
nity..
(By request of Mr. DENTON the fol-
lowing statement was ordered to be
printed in the RECORD:)
? Mr. THURMOND. Mr. President,
this proposal to amend S. 391 would
restore the original language of sec-
tion 601(c).
In both versions of the bill, this sec-
tion addresses the situation in which a
person who does not have direct access
to classified information knowingly
identifies individuals as covert agents
of the United States. Beyond this gen-
eral statement, the technical subtle-
ties of the separate versions make
them quite distinct, and because I feel
that the amendment offered by the
distinguished Senator ' from -Rhode
Island embodies the preferable ver-
sion. I support its adoption.
The language of the proposed
amendment reflects the requirement
that a putative defendant be involved
in the course of a pattern of activities
which is intended to identify and
expose covert agents. As defined in
section 606(10) of the bill, this re-
quires a series of acts with a common
purpose or objective. Clearly, then, a
amount-to a violation of the act.
Moreover, this amendment m
defendant, while participating in suc
a pattern of activities, possessed
reason to believe that these activities
would impair or impede the foreign in-
telligence activities of this country.
This standard has been the object of
much debate and discussion due to its
so-called reasonable man aspect,
which, it has been said, is a departure
from customary criminal law stand-
ards. However, in the field of espio-
nage laws. this standard is quite con-
sistent.
For example, 18 U.S.C. 793(e) pun-
ishes unauthorized disclosure of . na-
tional defense information which the
person "has reason to believe could be
used to the injury of the United States
or to the advantage of any foreign
nation." Similarly, 42 U.S,C. 2274(b)
punishes disclosure of restricted
atomic energy data "with reason to be-
lieve such data will be utilized to
injure the United States or to secure
an advantage to any foreign nation."
This statute clearly distinguishes
disclosure "with intent to injure the
United States or with intent to secure
an advantage to any foreign nation,"
which is punished under section
2274(a) with more severe penalties.
Therefore, the language of the
amendment is consistent with past leg-
islation where Congress has punished
disclosure without requiring proof of
specific intent, but rather proof that
the reasonable foreseeable result
would be injury to the United States
or advantage to a foreign power.
I believe the amendment of my dis-
tinguished colleague from Rhode
Island not only is consistent with prior
law in this area, but also offers greater
protection for the rights of individ-
uals. It must not be forgotten that in
any prosecution under this act each
and every element must be proven
beyond a reasonable doubt to the sat-
isfaction of the triers of fact, not only
as to the requisite belief of the wrong-
doer, but also as to his involvement in
a pattern of activity.
I finally want to remind my fellow
Senators of the words of the Supreme
Court when it decided Haig against
Agee this past June:
S 1183
It is "obvious and unarguable" that no
governmental interest is more compelling
than the security of the Nation. Protection
of the foreign policy of the United States is
a governmental interest of great impor-
tance, since foreign policy and national se-
curity considerations cannot neatly be com-
partmentalized.
Measures to protect the secrecy of our
Government's foreign intelligence oper-
ations plainly serve these interests. Thus, in
Snepp against United States, we held that
"[tlhe Government has a compelling inter-
est'in protecting both the secrecy of infor-
mation so important to our national secu-
rity and the appearance of confidentiality
so essential to the effective operation of our
foreign intelligence service." (Citations
omitted.)
I firmly believe that the interest of
our Government would be afforded
greater protection with the addition of
this amendment to this bill, and I urge
its adoption.?
COMMEMORATING ROGER
WILLIAMS
Mr. STEVENS. Mr. President, I ask
that the Chair lay before the Senate a
message from the House of Repre-
sentatives on Senate Concurrent Reso-
lution 64.
The PRESIDING OFFICER laid
before the Senate the following mes-
sage from the House of Representa-
tives:
Resolved, That the resolution from the
Senate (S.' Con. Res. 64) entitled "Concur-
rent resolution to authorize the Zeta Beta
Tau fraternity to conduct a reception in the
rotunda of the Capitol. on March?31, 1982, to
commemorate Roger Williams for his con-
tribution to religious toleration and freedom
in the United States", do pass with the fol-
lowing amendments:
Strike out all after the resolving clause,
and insert: That appropriate ceremonies are
authorized to be conducted in the rotunda
of the Capitol on March 31, 1982, to com-
memorate Roger Williams for his contribu-
tions to religious toleration and freedom in
the United States. These ceremonies shall
be conducted in accordance with conditions
prescribed by the Architect of the Capitol.
Amend the title so as to read: "Concurrent
resolution to -authorize ceremonies in the ro-
tunda of the Capitol for March 31, 1982, to
commemorate Roger Williams for his con-
tributions to religious toleration and free-
dom in the United States,".
Mr. STEVENS. Mr. President, I
move that the Senate concur in the
House amendments.
The PRESIDING OFFICER. The
question is on agreeing to the motion.
The motion was agreed to.
The PRESIDING OFFICER. The
question is on agreeing to the concur-
rent resolution.
The concurrent resolution, as
amended, was agreed to.
Mr. STEVENS. Mr. President, I
move to reconsider the vote by which
the concurrent resolution, . as amend-
ed, was agreed to.
Mr. BIDEN. Mr. President, I move to
lay that motion on the table.
The motion to lay on the table was
agreed to.
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