INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981 A REPORT TO ACCOMPANY S. 391

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200060019-0
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 26
• Document Creation Date: December 21, 2016
• Document Release Date: January 12, 2009
• Sequence Number: 19
• Publication Date: October 6, 1981
• Content Type: REPORT

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97TS CONGRESS
1st Session
Calendar No. 293
REroaT
No. 97-201
INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981
Mr. DENTON, from the Committee on the Judiciary,
submitted the following
REPORT
The Committee on the Judiciary, to which was referred the bill (S.
391) to improve the intelligence system of the United States, and for
other purposes, having considered the same, by a vote of 17 ayes and
1 vote of "present", reports favorably thereon with amendments and
recommends that the bill (as amended) do pass.
PUnPOSE
The purpose of S. 391 and its companion measure, H.R. 4, is to
strengthen the intelligence capabilities of the United States by amend-
ing the National Security Act of 1947 to prohibit the unauthorized
disclosure of information identifying certain United States intelli-
gence officers, agents, informants and sources, and to direct the Presi-
dent to establish procedures to protect the secrecy of these intelligence
relationships.
HssroRY or Tm BIIa..
In recent years, members of the House and Senate Intelligence Com-
mittees) along with other colleagues in the Congress, have become
increasingly concerned about the systematic effort by a small group of
Americans, including some former intelligence agency employees, to
disclose the names of covert intelligence agents. Numerous proposals
have been made in this Congress for a criminal statute to punish such
disclosure of the identities of intelligence agents.
Senator Bentsen introduced identities protection proposals in the
94th and 95th Congresses but no action was taken. On October 17,1979,
Representative Boland, Chairman of the House Intelligence Commit-
tee, introduced H.R. 5615, the Intelligence Identities Protection Act,
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which was cosponsored by all other members of that Committee. Iden-
tical provisions were included in S. 2216, introduced on January 24,
1980, as the Intelligence Reform Act of 1980, by Senator Moynihan.
The bill was cosponsored by Senators Wallop, Jackson and Chafee of
the Select Committee on Intelligence, by Senators Domenici, Nunn
and Danforth, and later by Senators Hollings, Schmitt, Simpson and
Armstrong.
Provisions for intelligence identities protection similar to Senator
Bentsen's proposal were also contained in S. 2284, which was intro-
duced on February 8, 1980, as the National Intelligence Act of 1980
by Senator Huddleston. An earlier version of this bill, S. 2525, intro-
duced in the 95th Congress, also included provisions for intelligence
identities protection.
Hearings on S. 2284 before the Select Committee on Intelligence
began on February 21, 1980, and addressed among other issues the
provisions for intelligence identities protection. The provisions of S.
2284 imposed criminal penalties for the disclosure of identities of
intelligence agents by persons who had authorized access to such
information.
S. 2284 was considered by the Select Committee on May 6 and 8,
1980, and the Committee decided to limit that bill to repeal of the
Hughes-Ryan Amendment and congressional oversight provisions. At
the meeting on May 8, the Committee decided to pursue intelligence
identities protection using S. 2216 as the vehicle for further consider-
ation of this issue, as proposed by Senator Chafee. The Committee held
further hearings on June 24 and 25 which focused specifically on the
intelligence identities protection provisions of S. 2216. Those hearings
also considered other proposals on the seubject, including S. 191 intro-
duced by Senator Bentsen on January 23, 1979. Senator Bentsen testi-
fied in favor of his proposal for penalizing exposure of CIA agents'
identities by persons who had authorized access to such identities. Sen-
ator Simpson testified in support of Amendment No. 1682 to S. 1722
(the criminal code revision bill), which he introduced on March 6, 1980,
and which proposed extending penalties similar to S. 2216 to disclosure
of the identities of law enforcement agents and informants.
While some Administration witnesses reiterated their proposal of
criminal penalties for disclosure of intelligence agents' identities by
any person based on classified information, then Deputy CIA Director
Carlucci testified that this proposal "could cover the most egregious
cases, such as the disclosures by Covert Action Information Bul-
letin, * * * only if the use of criminal investigative techniques pro-
vided sufficient proof that the disclosures were based on classified
information." Other witnesses expressed a wide range of views favor-
ing and opposing the provisions of S. 2216.
In early July 1980, attacks against American embassy officials in
Jamaica took place shortly after the disclosure of the names, addresses,
phone numbers, and automobile license numbers of 15 alleged CIA
officers. The disclosures were made by an editor of the Covert Action
Information Bulletin at a press conference in Kingston, Jamaica.
The Select Committee on Intelligence met in closed session on
July 22, 1980, to confer with representatives of the CIA and the De-
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partment of Justice on ways to meet this problem. Committee staff were
instructed to work with staff of the House Permanent Select Commit-
tee on Intelligence and the Administration to reach agreement on bill
language that would resolve differences and facilitate prompt action.
On July 25, 1980, the House Committee unanimously approved H.R.
5615, the Intelligence Identities Protection Act, with amendments.
The Select Committee met on July 29, 1980, to consider S. 2216.
Senator Chafee offered an amendment in the nature of a substitute
which differed from H.R. 5615, as approved by the House Committee,
on only one issue. The House Committee had approved the following
standard for criminal penalties if the disclosure of an agent's identity
is made by a person who did not learn that identity as a result of having
authorized access to classified information :
Whoever, in the course of an effort to identify and expose
covert agents with the entent to impair or impede the foreign
intelligence activities of the United States, discloses, with the
intent to impair or impede the foreign intelligence activities
of the United States, to any individual not authorized to re-
ceive classified information, any information that identifies
a covert agent knowing that the information disclosed so
identifies such covert agent and that the United States is
taking affirmative measures to conceal such covert agent's
intelligence relationship to the United States, shall be fined
not' more than $15,000 or imprisoned not more than three
years, or both.
Based on Department of Justice testimony which suggested that
the intent standard contained in the House version could well be
interpreted as focusing on the political opinion of the accused, Sen-
ator Chafee proposed the following standard :
Whoever, in the course of a pattern of activities intended to
identify and expose covert agents and with reason to believe
that such activities would impair or impede the foreign intel-
ligence activities of the United States, discloses any informa-
tion that identifies an individual as a covert agent to any
individual not authorized to receive classified information,
knowing that the information disclosed so identifies such in-
dividual and that the United States is taking affirmative
measures to conceal such individual's classified intelligence
relationship to the United States, shall be fined not more
than $15,000 or imprisoned not more than three years, or both.
This language had the full support of CIA and the Justice De-
partment. Senator Bayh proposed an amendment that included the
following language :
Whoever, in the course of a pattern of activities intended
to impair or impede the foreign intelligence activities of the
United States by identifying and exposing covert agents, dis-
closes, with reason to believe that such disclosure would im-
pair or impede the foreign intelligence activities of the
United States, any information. *
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After lengthy discussion, Senator Bayh's amendment was defeatea
9 to 3 with one abstention. Two other amendments to Senator Chafee's
'substitute were then adopted unanimously by voice vote. An amend-
ment offered by Senator Huddleston added a definition of "pattern of
activities," and an amendment by Senator Bayh provided that it shall
not be an offense under the bill for an individual to disclose informa-
tion that solely identifies himself as a covert agent. Senator Chafee's
substitute, as amended, was then adopted by a vote of 13 to 1, S. 2216,
as amended by Senator Chafee's substitute, was approved by the Com-
inittee as the Intelligence Identities Protection Act of 1980, with a
recommendation for favorable action.
On August 22, 1980, S. 2216, as reported by the Select Committee on
Intelligence, was referred to the Committee on, the Judiciary under
the provisions of Senate Resolution 400 for a period not to exceed 20
days that the Senate was in session. The Committee held hearings on
September 5, 1980, at which representatives of the Department of
Justice, the Central Intelligence Agency, the Federal Bureau of Inves-
tigation, media organizations and civil liberties groups testified. Writ-
ten statements were also solicited from law professors and constitu-
tional scholars by Senator Edward M. Kennedy, the chairman of the
Committee.
During the hearings, the Committee was told by Carter Administra-
tion witnesses (which included the Department of Justice and the
CIA) and the bill's chief sponsor, Senator Chafee, that the bill was
intended "to stop those engaged in the business of `naming names"'
and was not intended to apply to members of the press or others
engaged in protected First Amendment activities. Opponents of the
bill testified, however, that whatever the intent of the drafters of the
bill, section 501(c) could be interpreted to criminalize activity pro-
tected by the First Amendment and that the bill was therefore uncon-
stitutional.
On September 17, 1980, the Committee met to mark up S. 2216, as
reported by the Select Committee, and amendments to this bill were
adopted by the following votes :
(1) Amendment no. 1, amending the standard of section 501 (c) by
a vote of 10-6.
2) Amendment no. 3, inserting a new section 502 (e) by a vote of 8-6.
3) Amendment no. 4A, exempting Peace Corps and the Agency for
International Development from section 503 by a vote of 7-6.
(4) Amendment no. 5, providing procedures for expedited judicial
determination of the constitutionality of the bill by a unanimous
voice vote.
The Committee voted to report the bill, as amended, by a vote of
13 yeas to 0 nays. The Committee subsequently reported S. 2216 on
September 24, 1980.
Senators Thurmond, Laxalt, Hatch, Dole and Simpson all expressed
concern that the four substantive amendments adopted by the Judi-
ciary Committee could "gut the effectiveness" of legislation which was
"originally drafted to prevent the flagrant and intentional exposure
of the identities of covert intelligence employees and agents by indi-
viduals whose only possible purpose in doing so was to destroy our
nation's intelligence capabilities.
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According to the rules of the Senate, S. 2210, as originally reported
from the Select Committee on Intelligence, could now be brought to
the floor for action, subject to floor amendments of the type that were
attached to it by the Judiciary Committee. Although proponents of
the bill made every effort to bring it to the floor, the promise of a
lengthy filibuster by a few opponents resulted in repeated delays of
floor action. The effect of these delays was that S. 2216 did not reach
the floor of the Senate before the second session of the 96th Congress
came to a close on October 3, 1980. In a final effort to bring floor action,
Senator Chafee addressed the Chair as follows :
Mr. President * * * I find it ironic that those who oppose
this legislation for constitutional reasons, feeling it impinges
upon the rights of free speech or a free press, will not let us,
the elected representatives of the people, at least debate the
legislation on the floor and take a vote. Let us have a discus-
sion in the free marketplace ! Let us have the competition of
ideas and arrive at a decision.
After the convening of the 97th Congress, Senator Chafee and 19
other Senators introduced the Intelligence Identities Protection Act
of 1981 (S. 391) on February 3, 1981. This bill was virtually the same
as the version of S. 2216 which was reported from the Select Commit-
tee on Intelligence the year before by a vote of 13 to 1, the only differ-
ence being the numbering of paragraphs. Following an objection by
Senator Biden to a unanimous consent agreement to refer this bill to
the Select Committee on Intelligence, S. 391 was referred to the Com-
mittee on the Judiciary where it was subsequently sent to the Sub-
committee on Security and Terrorism for action.
On May 8, 1981, Senator Denton, Chairman of the Subcommittee
on Security and Terrorism, held hearings on S. 391 at which repre-
sentatives of the Department of Justice, the Central Intelligence
Agency, the Association of Former Intelligence Officers, the Center for
National Security Studies and the American Civil Liberties Union
testified. By the time the hearings were held, S. 391 had over 40 co-
sponsors from both sides of the aisle.
On June 24, 1981, S. 391 was polled out of the Subcommittee on
Security and Terrorism by a vote of 3 to 1 with 1 abstention. The
majority of the Subcommittee voted to report out S. 391 to the full
Judiciary Committee without amendment.
POSITION OF THE ADMINISTRATION
The Reagan Administration fully supported S. 391 as reported by
the Subcommittee. During his testimony before the Subcommittee on
May 8, 1981, William J. Casey, Director of Central Intelligence, testi-
fied:
* * * this Administration believes that passage of the
"Intelligence Identities Protection Act" is essential to the
maintenance of a strong and effective intelligence apparatus.
Enactment of this legislation is an important component of
the Administration's effort to implement President Reagan's
determination to enhance the Nation's intelligence
capabilities.
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Testifying at the same hearing, Mr. Richard K. Willard, Counse,
to the Attorney General for Intelligence Policy, stated :
* * * the Justice Department strongly supports the enact-
ment of legislation that would provide additional criminal
penalties for the unauthorized disclosure of the identities
of the clandestine intelligence officers, agents, and sources
who play such an essential role in this nation's foreign intel-
ligence, counter-intelligence, and counter-terrorism efforts.
The Committee believes it is important to note, as well, that the
Carter Administration also supported S. 2216 as reported by the In-
telligence Committee last year. For example, in addition to public
testimony on the subject, the Deputy Attorney General, Charles Ren-
frew, stated in a letter to the Intelligence Committee dated July 29,
1980, that with respect to the basic standard for criminal penalty
if the disclosure of an agent's identity is made by a person who did
not learn that identity as a result of having authorized access to
classified information:
This formulation substantially alleviates the constitutional
and practical concerns expressed by the Justice Department
with regard to earlier versions of this bill that included a
requirement that prohibited disclosures be made with a spe-
cific "intent to impair or impede" U.S. intelligence
activities.
Because of the significance of this matter * * * it has been
our view from the beginning that such legislation as is en-
acted must be fair, effective and enforceable. Our position
has been and remains that the absence of an intent element
in this legislation will accomplish this goal.
The committee believes that the bipartisan nature of Administra-
tion support for S. 391, and for its predecessor, S. 2216, is also re-
flected in the fact that S. 391 currently has over 40 co-sponsors from
both sides of the aisle.
The Committee considered S. 391, as reported by the Subcommittee
on Security and Terrorism, at a business meeting on October 6, 1981.
The bill, as introduced by Senator Chafee and as reported by the
,Subcommittee, was virtually identical to S. 2261 as it had been reported
from the Senate Committee on Intelligence during the 96th Congress.
S. 391 contained in section 601(c) a standard requiring that the dis-
closure must be "in the course of a pattern of activities intended to
identify and expose covert agents and with reason to believe that such
activities would impair or impede the foreign intelligence activities
of the United States." This standard is found in section 601 (c) of H.R.
4 as passed by the House.
Senator Biden offered an amendment to strike this language and
insert in its place the language as presently found in section 601 (c) of
the reported bill.
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Senator Mathias Senator Thurmond
Senator Specter Senator Laxalt
Senator Biden Senator Hatch
Senator Kennedy Senator Dole
Senator Byrd Senator Simpson
Senator Metzenbaum Senator East
Senator DeConcini Senator Grassley
Senator Leahy Senator Denton
Senator Baucus
Senator Heflin voted "present." The amendment carried.
Thereafter, Senator Baucus offered an amendment to specifically
exclude from section 603(a) the Peace Corps as a designated depart-
ment or agency to be designated by the President for the purposes of
providing assistance in procedures for establishing cover for intelli-
gence officers and employees.
The vote was as follows :
Senator Mathias Senator Thurmond
Senator Dole Senator Laxalt
Senator Specter Senator Hatch
Senator Biden Senator Simpson
Senator Kennedy Senator East
Senator Byrd Senator Grassley
Senator Metzenbaum Senator Denton
Senator DeConcini
Senator Leahy
Senator Baucus
Senator Heflin
The amendment carried.
As amended, S. 391 was ordered reported with seventeen members
voting affirmatively and with a vote of "present" by Senator Heflin.
The Committee considered and approved this bill because, in re-
cent years, the United States intelligence community has been faced
with an unprecedented problem in its attempt to fulfill its responsi-
bilities. A small number of Americans, including some former intel-
ligence agency employees, have been engaged in a systematic effort to
destroy the ability of our intelligence agencies to operate clandestinely
by disclosing the names of intelligence agents.
Foremost among them has been Philip Agee, two of whose books-
"Dirty Work : The CIA in Western Europe" and "Dirty Work 2:
The CIA in Africa"-have revealed the names of over 1,000 alleged
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CIA officers. Louis Wolf, co-editor of the Covert Action Information
Bulletin which contains a special section titled "Naming Names,"
claims that he has revealed the names of over 2,000 CIA officers in
recent years.
In December 1975, Richard S. Welch, CIA Station Chief in Athens,
Greece, was murdered in front of his home. His assassination occurred
within a month of the time that he was identified as CIA Station
Chief in the Athens Daily News. The information for this story came
from Philip Agee's Counterspy magazine.
On July 4, 1980, an American Embassy official-Mr. Richard Kins-
man-posted in Kingston, Jamaica, was the target of an assassination
attempt following a published allegation that he was a CIA officer.
Although Mr. Kinsman and his family were not injured in the attack,
his house and grounds were extensively damaged by submachinegun
fire and an explosive device. Less than 48 hours before the attack
Louis Wolf had publicly alleged that Richard Kinsman and 14 other
U.S. Embassy officials in Jamaica were working for the CIA. In
addition to names, Wolf also provided the officials' addresses and tele-
phone numbers, and the license plate numbers and colors of their
automobiles. On July 7, 1980, another Embassy official named by
Wolf was the target of an apparent assassination attempt.
Earlier this year, six Americans were expelled from Mozambique
fololwing charges of engaging in espionage. These expulsions followed
visits to that country by members of the Cuban Intelligence Service
and the editors of the Covert Action Information Bulletin.
Over the years none of the people involved in perpetrating these
incidents has been indicted under the espionage laws or any other law
for these malicious disclosures. This is effective testimony for the
proposition that, if these wanton disclosures are to be stopped, a spe-
cific new law is needed. Until a new law is passed, undercover work for
the United States will continue to become ever less effective and ever
more hazardous, while those doing harm to the United States by ex-
posing American undercover agents will continue their activities
without penalty.
The Committee addressed only the problems posed by the dis-
closure of undercover employees and agents of American intelligence.
It specifically decided not to address itself to the wider problems
posed by various kinds of disclosure of classified information. While
deploring all "leaks" of classified intelligence information, the Com-
mittee decided to accomplish a single, narrow purpose; to punish the
unauthorized disclosure of the identity of undercover employees or
agents in certain circumstances. The Committee's focus is further de-
fined and narrowed by its decision to protect the identities of under-
cover personnel only when the U.S. Government is taking affirmative
measures to conceal them. Because of this focus, the Subcommittee de-
cided to penalize disclosures undertaken for the purpose of identifying
and exposing such agents, regardless of whether these disclosures were
based on classified information. Thus, the Committee's action is not an
affirmation of the value of classification in the abstract. Rather, it is a
definitive affirmation that the U.S. Government is right to have
undercover employees and agents for foreign intelligence purposes,
that the Government is right to take measures to keep such under-
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cover arrangements secret, and that anyone who engages in activities
that would thwart this legitimate Governmental interest by unauthor-
ized disclosure of the identities of such personnel should be punished.
Security considerations preclude confirming or denying the ac-
curacy of specific attempts at identifying U.S. intelligence person-
nel. There have, however, been many such disclosures, and not all of
them are wide of the mark. The destructive effects of these disclosures
have been varied and wide-ranging.
Many of these disclosures can place intelligence personnel and their
families in physical danger from terrorist or violence-prone organiza-
tions. As a result, the professional effectiveness of officers who have
been compromised is substantially and some times irreparably dam-
aged. They must reduce or break contact with sensitive covert sources
and continued contact must be coupled with increased defensive meas-
ures that are inevitably more costly and time-consuming. Some officers
must be removed from their assignments and returned from overseas
at substantial cost, and years of irreplaceable area experience and lin-
guistic skill are lost. Since the ability to reassign the compromised
officer is impaired, the pool of experienced CIA officers who can serve
abroad is being reduced. Replacement of officers thus compromised is
difficult and, in some cases, impossible. Such disclosures also sensitize
hostile security services to CIA presenceand influence foreign popula-
tion, making operations far more difficult.
In addition, relations with foreign sources of intelligence have been
impaired. Sources have evidenced increased concern for their own
safety. Some active sources, and individuals contemplating coopera-
tion with the United States, have terminated or reduced their contact
with our intelligence agencies. Others have questioned how the United
States government can expect its friends to provide information in
view of continuing disclosures that may jeopardize their careers,
liberty and lives. The result of this has been a reduction of those very
relationships which are vital to obtaining high-quality U.S. intelli-
gence. These disclosures have contributed to a perception among for-
eign intelligence services that U.S. intelligence agencies are unable to
preserve important confidences. This perception has led and may lead
these services to undertake reviews of their liaison relationships, which
have resulted in, and will result in, reduction of contact and reduced
passage of information. In taking these actions in the past, some for-
eign services have explicitly cited disclosures of intelligence identities.
The Committee took note of the fact that the identities of American
undercover intelligence personnel are not as well hidden as they might
be. Indeed part of the bill is designed to improve cover. But the Com-
mittee rejected the contention that the identities of imperfectly covered
intelligence personnel are thereby part of the public record. They are
not. Those seeking to learn them without the use of classified informa-
tion must frequently engage in physical surveillance. in search of per-
sonnel records. in interviews with neighbors and former colleagues.
Taken together, all of this amounts to a comprehensive counterintelli-
gence effort. It may be. true that one does not have to be or to have been
an intelligence officer in order to learn and reveal the identities of
American undercover agents. But in that case one must often behave
as a counterintelligence officer, using systematic investigative tech-
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niques, against the United States. The Committee has decided that
certain identities should be protected both against betrayal of classified
information and against such self-appointed counterspies.
The Committee also supports the fact that S. 391 directs the Presi-
dent to establish procedures to ensure that departments and agen-
cie:; of the U.S. government designated by the President to do so shall
provide whatever assistance is necessary to establish and maintain
effective cover for intelligence personnel. The Committee realized that
the President has always had the power to order any part of the Execu-
tive Branch to provide effective cover. But the Committee is aware
that intelligence officers have not been provided with credentials and
working conditions indistinguishable from certain other departments.
The President heretofore has not effectively exercised his power to
cause executive departments to provide adequate cover. However, it is
the plain intent of the bill that the President establish procedures
which shall result in effective cover.
The Committee has concluded that it is absolutely essential for
our nation to have intelligence information which is timely and ac-
curate. Further, the Committee believes that informed policymak-
ing by officials of the Executive and Legislative branches requires that
the United States collect such intelligence from human sources, for
that particular kind of intelligence provides insight into the intentions
of foreign powers or terrorist organizations which is not available from
other sources.
The United States can collect the vital human intelligence it needs
only through the operations officers of its intelligence agencies. With-
out effective cover for U.S. intelligence officers abroad and without
assurance of anonymity for intelligence sources, the United States can-
not collect the human intelligence which it must have to conduct an
effective foreign and national defense policy. Moreover, as the United
States seeks to implement its foreign policy objectives, it requires in
unusual and important situations the capability to use clandestine
operators to complement its overt policy initiatives.
The programs of the United States for the collection of human intel-
ligence have been severely impaired by the efforts of certain individu-
als to disclose the identities of our undercover intelligence officers and
our sources of information. The loss of vital human intelligence which
our policymakers need, the great cost to the American taxpayer of
replacing intelligence resources lost due to such disclosures, and the
greatly increased risk of harm which continuing disclosures force
intelligence officers and sources to endure, are the intolerable, direct
results of the efforts of those individuals to disclose intelligence
identities.
The Committee hereby makes the following findings:
(1) Successful and efficiently conducted foreign intelligence and
counterintelligence activities are vital to the national security of the
United States.
(2) Successful and efficient foreign intelligence and counterintelli-
gence activities require concealment of relationships between com-
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ponents of the United States Government that carry out those activi-
ties and certain of their employees and sources of information and
assistance.
(3) The disclosure of such relationships to unauthorized persons is
detrimental to the successful and efficient conduct of foreign intelli-
gence, counterintelligence, and counter-terrorism activities of the
United States.
(4) Individuals who have a concealed relationship with foreign
intelligence, counterintelligence, or counter-terrorism components of
the United States Government may be exposed to physical danger if
their identities are disclosed to unauthorized persons.
(5) Organizations of determined individuals may be able to identify
and expose U.S. Government employees who have concealed intelli-
gence relationships by means of standard espionage techniques with-
out access to classified documents.
(6) Current law has proved inadequate to prevent such efforts.
(7) The policies, arrangements and procedures used by the Execu-
tive branch to provide for U.S. intelligence officers, agents and sources
must be strengthened and fully supported.
Therefore, to improve intelligence efforts of the U.S. and to protect
intelligence officers and sources from harm, the Committee reports
S. 391 to the Senate with a recommendation for favorable action
thereon.
SUMMARY OF LEGISLATION
S. 391 makes criminal the disclosure of intelligence identities only in
certain specified circumstances.
S. 391 applies to three well defined and limited classes of individ-
uals. The first consists of those who have had authorized access to
classified information identifying undercover operatives, or "covert
agents," as they are defined by the bill. This class would include only
those individuals-principally government workers or supervisory of-
ficials-who would have had a need to know the identity of an under-
cover officer or an agent. This class therefore includes only those who
obtain or receive documents or information which name or directly
identify covert agents in the course of their duties. It is their occupa-
tion of a position of trust which results in access to the identities of
covert agents, and disclosures of the identities they learned in this
fashion are the most heavily penalized by the bill.
The second class also encompasses individuals who have or have had
access to classified information, but not necessarily that which ex-
plicitly identifies covert agents. For a member of this class, however,
it must be shown that as a result of that access to classified information
he learned an intelligence identity. This class would include those in
government whose jobs place them in a position to learn the identities
of covert agents indirectly. Although the government need not be able
to prove that individuals in this class have had officially approved
access to the actual identities of covert agents, it must show that as a
result of the position which they held they learned such identities.
Within certain circles of government such circumstances are not un-
common. Since individuals in this class have also had positions of trust,
they are believed by the Subcommittee to have a duty of care parallel
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to, but less than, that of individuals included in the first class. Thus,
disclosures by the second class are penalized less severely than those
of the first class but still more severely than the third class.
The third and last class of individuals affected by the bill are those
who may have never had authorized access to classified information
with its accompanying duty of care, but who in the course of an effort
to identify and expose covert agents with the intent to impair or
impede the foreign intelligence activities of the United States by the
fact of such identification and exposure, discloses to any individual not
authorized to receive classified information, any information that iden-
tifies an individual as a covert agent.
The Committee believes that the provisions of S. 391 have been con-
sidered and crafted with care. The principal thrust of this effort has
been to make criminal those disclosures which clearly represent a con-
scious and pernicious effort to identify and expose agents with the in-
tent to impair or impede the foreign intelligence activities of the
United States by such actions.
At the same time, the Committee also recognizes that there are other
aspects of this problem of protection which require different solutions.
One is the strengthening of cover itself. Although a full discussion of
cover for intelligence operatives abroad is inappropriate in the context
of this report, the Committee believes that the alias and other pro-
visions for the concealment of intelligence operatives are not fully
adequate. Accordingly, the Committee has included a provision requir-
ing the President to promulgate procedures that will help to rectify
this situation. These procedures are to ensure that intelligence cover
arrangements are effective. They are to provide that departments and
agencies of governments with the exception of the Peace Corps desig-
nated by the President are to afford all appropriate assistance--deter-
mined by the President-to this end.
These procedures do not address the relationships between intelli-
gence agencies and private organizations and institutions. Nor does
this section stipulate which elements of government shall provide
assistance or what that assistance must be. The bill requires only that
the President of the United States review these questions and deter-
mine the appropriate interest of the United States. In so doing, the
provision recognizes that it is the responsibility of the President to
study these questions and order improvements which will result in the
adequate provision of cover to undercover intelligence operatives.
The Committee, conscious of its special responsibility to protect the
Constitutional rights of Americans, carefully weighed the Constitu-
tional implications of S. 391. Although the courts will make their own
determination of constitutionality, the Congress has a responsibility
to snake its best judgment. There appears to be little doubt as to the
constitutionality of the criminal penalties in section 601 (a) and (b)
for persons who disclose the identities of covert agents they learned as
a result of having authorized access to classified information. While
constitutional questions were raised in the hearings with respect to
criminal penalties for the publication of covert agents' identities by
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persons who have not had that access, it is the conclusion of the Com-
mittee that section 601(c.) as amended, which imposes such penalties
in certain narrowly limited circumstances, does not infringe on
freedom of speech and freedom of the press guaranteed by the
Constitution.
The First Amendment states that "Congress shall make no law
abridging the freedom of speech, or of the press. In interpreting
the First Amendment, Justice Holmes wrote :
The most stringent protection of free speech would not pro-
tect a man in falsely shouting fire in a crowded theatre and
causing a panic. The question in every case is whether the
words are used in such circumstances and are of such a nature
as to create a clear and present danger that they will bring
about substantive evils that Congress has a right to prevent.
Broad rick v. Oklahoma, 413 U.S. 601, 607 (1972).
In addition, the courts have held that a statute affecting speech or
publication must not extend overbroadly. Legitimate legislative goals
cannot, according to the Supreme Court, "be pursued by means that
broadly stifle fundamental personal liberties when the end can be more
narrowly achieved." Shelton v. Tucker, 364 U.S. 478, 488 (1960) ; cf.,
Elf brandt v. Russell, 384 U.S. 11, 19 (1966). The Court has also said :
It has long been recognized that the First Amendment
needs breathing space and that statutes attempting to restrict
or burden the exercise of First Amendment rights must be
narrowly drawn and represent a considered legislative judg-
ment that a particular mode of expression has given way to
other compelling needs of society.
Sche.itek v. United States, 249 U.S. 47 (1919).
These are the principles that have guided the Committee in con-
sidering the constitutionality of S. 391. The findings of the Com-
mittee have been spelled out clearly and the language of the bill has
been framed insofar as possible to deal with a specific, serious harm in
the circumstances where that harm is most likely to occur.
The Committee has taken into account the question of disclosure
not based on classified information. Even though section 601 (c) pun-
ishes disclosure that is not based on classified information, the govern-
ment must prove that the information disclosed by the defendant
identified an individual as a covert agent and that the defendant knew
the information so identified such individual. The definition of "covert
agent" is specifically limited to an individual whose identity as an
intelligence agency employee "is classified information" and to agents,
informants, and sources "whose intelligence relationship to the United
States is classified information." In addition, the government must
prove that, at the time of the disclosure, the defendant knew that the
United States was taking affirmative measures to conceal such indi-
vidual's classified intelligence relationship to the United States. There
is also a defense if the United States had already "publicly acknowl-
edged or revealed" that relationship. Taken together, these provisions
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ensure that criminal penalties can be imposed under section 601(e)
only when the defendant has knowingly disclosed information that, in
terms of its specificity, its sensitivity, and the effort expended to main-
tain its secrecy, is virtually the equivalent of classified information.
Apart from the issue of classification, the Committee has carefully
considered the definition of "covert agent" and has included only those
identities which it has determined to be absolutely necessary to pro-
tect for reasons of imminent danger to life or significant interference
with vital intelligence activities. Undercover officers and employees
overseas may be in special danger when their identities are revealed,
as recent events indicated. In addition, U.S. intelligence activities can
be disrupted severely when the identity of an officer in the clandestine
service is disclosed. Overseas agents and informants who are not United
States citizens may expect instant retribution when their relationship
to the United States is exposed. If they reside in the United States
their relatives abroad may be endangered. In both instances, im-
portant sources of information or assistance may be denied by disclos-
ure, and possible future sources may be less forthcoming, or un-
available.
Where the dangers are less, however, the Committee has sought
to avoid inhibition on public criticism or debate concerning intelli-
gence activities. Because the revelation of their relationship could ex-
pose them to immediate and serious danger, U.S. citizens who serve
as informants or sources are included in the "covert agent" definition
if they reside and act outside the United States. However, the physical
danger element is much less within the United States. Furthermore,
U.S. citizens residing within the United States who assist intelligence
agencies may be employees of colleges, churches, the media, or political
organizations. The degree of involvement of these groups with intelli-
gence agencies is a legitimate subject of national debate and intra-
group discourse. Therefore, the definition includes U.S. citizens resid-
ing within the United States only if they are agents or informant of
the foreign counterintelligence or foreign counterterrorism compo-
nents of the FBI. As noted above, these individuals are exposed to
special hazards.
The principal criterion adopted by the Subcommittee in framing
the categories of the "covert agent" definition has been physical dan-
ger or a reasonable possibility thereof. As a result, the criminal pen-
alties in section 601(c) apply only to disclosure of a narrow class of
information that requires special protection not only to meet the needs
of the United States for an effective intelligence service, but also to
ensure the safety of individuals serving this nation in hazardous cir-
cumstances.
(C) COURSE OF CONDUCT REQUIREMENTS
The Committee has concluded that in addition to the narrow def-
inition of "covert agent", and the provisions requiring the govern-
ment to prove that the defendant knowingly disclosed virtually the
equivalent of classified information, further provisions may be needed
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to ensure that the bill meets First Amendment requirements when
criminal penalties are imposed on persons who do not disclose agent
identities they learned as a result of having authorized access to clas-
sified information. Therefore, the Committee required additional
proof that the disclosure was made "in the course of an effort to
identify and expose covert agents with the intent to impair or impede
the foreign intelligence activities of the United States by the fact of
such identification and exposure." This standard reflects "a con-
sidered legislative judgment that a particular mode of expression"
must give way "to other compelling needs of society," as the Supreme
Court has described the constitutional test.
The record indicates that the harm this bill seeks to prevent is most
likely to result from disclosure of covert agent's identity in such a
course designed, first, to make an effort at identifying covert agents
and, second, to expose such agents publicly. The gratuitous listing
of agents' names in certain publications goes far beyond informa-
tion that might contribute to informed public debate on foreign
policy or that foreign intelligence activities. That effort to
identify U.S. intelligence officers and agents in countries through-
out the world and to expose their identities repeatedly, time
and time again, serves no legimate purpose. Instead, it reflects a total
disregard for the consequences that may jeopardize the lives and safety
of individuals and damage the ability of the United States to safe-
guard the national defense and conduct an effective foreign policy.
The standard adopted in section 601 (c) applies criminal penalties
only in very limited circumstances to deter those who make it their
business to ferret out and publish the identities of agents.
The Committee shares the objectives expressed Tast year by the
Attorney General when he wrote to the Intelligence Committee to
emphasize "the great importance" of this legislation.
While we must welcome public debate about the role of the intelli-
gence community as well as other components of our government,
the wanton and indiscriminate disclosure of the names and cover
identities of covert agents serves no salutory purpose whatsoever. As
public officials, we have a duty, consistent with our oath to uphold
the Constitution, to show our support for the men and women of
the United States intelligence service who perform duties on behalf
of their country, often at great personal risk and sacrifice.
The Attorney General added that the legislation should carefully
establish "effective prohibitions on egregious disclosures of identi-
ties of intelligence agents, while recognizing essential rights of free
speech guaranteed to us all by the First Amendment and the impor-
tant role played by the press in exposing the truth."
As the Attorney General advised, S. 2216 concentrated on "wanton
and indiscriminate disclosure" where such activities serve "no salu-
tory purpose whatsoever," and it drew a distinction between such
"egregious disclosures" and other modes of publication so as to main-
tain and respect "the important role played by the press in exposing
the truth." S. 391 does likewise.
The Committee also shares the views of Counsel to the Attorney
General for Intelligence Policy, Richard K. Willard, when he stated
in testimony before the Subcommittee on May 8, 1981:
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The First Amendment is not absolute, and we are confident
that a carefully drafted bill such as S. 391 is constitutional.
Congressional hearings over the past two years have well
documented the serious harm to national defense caused by
actions the statute is intended to prevent. When compared
with the extremely limited burden on free speech, we believe
that this serious harm justifies the proposed legislation.
Some believe deeply that any legislation punishing the publication
of information about government activities would be unconstitutional.
Others assert that the Constitution would allow punishing any unau-
thorized disclosure of a covert agent's identity, regardless of the cir-
cumstances. The Committee believes, however, that S. 391 strikes a
proper and constitutional balance between the needs of a free society
for information that might contribute to informed debate on public
policy issues and the compelling concerns of the men and women who
serve our nation's intelligence agencies at great risk and sacrifice.
Section 601 established three distinct criminal offenses for the in-
tentional disclosure to unauthorized persons of information identify-
ing covert agents. The distinction among the offenses is based on the
defendant's authorized access to classified information, or lack there-
of. The greater the degree of such access, the greater is the duty of
trust assumed by the defendant and the greater the penalty for breach
of such duty. In addition, the elements of proof are fewer against
defendants with authorized access to classified information.
Section 601 (a) applies to those individuals who have been given
authorized access to classified information which identifies a covert
agent. Such individuals, usually employees of the United States with
the most sensitive security clearances, have undertaken a duty of non-
disclosure of the nation's most sensitive secrets. It is appropriate, in
the Committee's view, to impose severe penalties for the breach of
this duty and to hold individuals in this category to stricter standards
of liability. Therefore, an individual who has had authorized access
to classified information identifying a covert agent would be subject
to a fine of $50,000 or imprisonment for ten years, or both, if he-
Intentionally discloses, to any individual not authorized to
receive classified information, any information identifying
such agent,
Knowing that the information disclosed identifies such
agent, and
Knowing that the United States is taking affirmative meas-
ures to conceal the agent's intelligence relationship to the
United States.
The word "intentionally" was carefully chosen to reflect the Com-
mittee's intent to require that the government prove the most ex-
acting state of mind element in connection with section 601 offenses.
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It should be evident, but the Committee wishes to make clear, that
the words "identifies", "identifying", and "identity", which are used
throughout section 601 are intended to connote a correct status as a
covert agent. To identify someone incorrectly 'as a covert agent is not
a crime under this bill.
The reference to "affirmative measures" is intended to confine the
effect of the bill to relationships that are deliberately concealed by the
United States. These "affirmative measures" could include the use of
such techniques as, for example, the creation of a "cover" identity
(a set of fictitious characteristics and relationships) to conceal the
individual's true identity and relationship to an intelligence agency,
the use of clandestine means of communication to conceal the individ-
ual's relationship with United States Government personnel, and the
restricting of any mention of the individual's true identity or intel-
ligence relationship to classified documents and channels. Proof of
knowledge that the United States is taking affirmative measures to
conceal an intelligence relationship will depend upon the facts and
circumstances of each case. It could be demonstrated by showing that
the discloser's current or former employment or other relationship
with the United States required or gave him such knowledge. It could
also be demonstrated by statements made in connection with the dis-
closure or by previous statements evidencing such knowledge.
The mere fact that an intelligence relationship appears in a docu-
ment which is classified does not constitute evidence that the United
States is taking affirmative measures to conceal the relationship. For
instance, the document could be classified because of other information
it contains. Similarly, the fact that the United States has not publicly
acknowledged or revealed the relationship does not by itself satisfy
the "affirmative measures" required.
It also is to be emphasized that though the identity disclosed must
be classified (see section 606(4)), the actual information disclosed
need not be. For example, the phone number, address, or automobile
license number of a CIA station chief is not classified information;
the disclosure of such information in a manner which identifies the
holder as the CIA station chief is an offense under the bill. However,
the connection between the information disclosed and the correct
identity of the covert agent must be direct,,and the information must
point at a. particular individual.
Finally, in connection with section 601(a), it should be noted that
the identity of a covert agent which is disclosed and which is the
subject of the prosecution must be an identity to which the offender,
through authorized access to classified information, was specifically
given access.
Section 601 (b) applies to those who learn the identity of a covert
agent "as a result of having authorized access to classified informa-
tion." Basically, it covers those whose security clearance places them
in a position from which the identity of a covert agent becomes known
or is made known. The distinction between this category of offenders.
and the category covered by section 601 (a), is under section 601 (a)
the offender must have had authorized access to specific classified
information which identifies the covert agent whose disclosure is the
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basis for the prosecution. Section 601 (b), on the other hand, requires
that the identity be learned only "as a result" of authorized access
to classified information in general.
As with those cohered by section 601(a), those in 601(b) category
have placed themselves in a special position of trust vis-a-vis the
United States Government. Therefore, it is proper to levy stiffer
penalties and require fewer elements to be proved than for those who
have never had any authorized access .to classified information (see
section 601(c)). However, the Committee recognizes that there is a
subtle but significant difference in the position of trust assumed be-
tween an offender within the section 601 (a) category and an offender
in the section 601 (b) category. Therefore, the penalty for a conviction
under section 601 (b) is a fine of $25,000 or five years imprisonment,
or both.
With the two exceptions discussed above-the relationship of the
offender to classified information and the penalty for conviction-the
two offenses, and the elements of proof thereof are the same.
Section 601 (c) applies to any person who discloses the identity of a
covert agent.
As is required by subsections (a) and (b), the government must
prove that the disclosure was intentional and that the relationship dis-
closed was classified. The government must also prove that the offender
knew that the government was taking affirmative measures to conceal
the classified intelligence relationshi of the covert agent. As is also
the case with subsections (a) and ((b), the actual information dis-
closed does not have to be classified. However, the government must
prove that the defendant knew that he was disclosing a classified rela-
tionship the government seeks to conceal by affirmative measures.
Unlike the previous two sections, authorized access to classified in-
formation is not a prerequisite to a conviction under section 601(c) . An
offender under this section has not voluntarily agreed to protect any
government information nor is he necessarily in a position of trust.
Therefore, section 601 (c) establishes three elements of proof not found
in sections 601 (a) or (b). The United States must prove-
That the disclosure was made in the course of an effort to
identify and expose covert agents;
That there existed also an intent to impair or impede the
foreign intelligence activities of the Government by identify-
ing and exposing such agents; and
That the disclosure amounts to any information that iden-
tifies an individual as a covert agent.
To meet the standard of the bill, a discloser must be engaged in
a purposeful enterprise of revealing names-he must, in short, be in
the busines of "naming names." Not only has the crime been narrowly
drawn in S. 391, but the Committee believes that a number of "hur-
dles" have been erected against prosecution to protect the journalist
and intelligence critic. For example, in a prosecution, the Government
would have to prove each of the following elements beyond a reason-
able doubt :
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First, that there was an intentional disclosure of informa-
tion which did in fact identify a "covert agent";
Second, that the disclosure was made to an individual not
authorized to receive classified information;
Third, that the person who made the disclosure knew that
the information disclosed did in fact identify and disclose a
covert agent;
Fourth, that the person who made the disclosure knew that
the United States was taking affirmative measures to conceal
the covert agent's classified intelligence affiliation;
Fifth, that the disclosure was made in the course of an ef-
fort to identify and expose covert agents ; and
Sixth, that the person making the disclosure did so with
the intent of impairing or impeding the foreign intelligence
activities of the United States.
Section 602 (a) states that :
It is a defense to a prosecution under section 601 that before the commission
of the offense with which the defendant is charged, the United States had pub-
licly acknowledged or revealed the intelligence relationship to the United States
of the individual the disclosure of whose intelligence relationship to the United
States is the basis for the prosecution.
The words "publicly acknowledged" are intended to encompass such
public activities as official publications of the United States, or official
statements or press releases made by those acting on behalf of .the
United States, which specifically acknowledge an intelligence rela-
tionship. The United States has "revealed" an intelligence relation-
ship if it has disclosed information which names, or leads directly
to the identification of, an individual as a covert agent. Information
does not lead directly to such an identification if the identification can
be made only after an effort to seek out and compare, cross-reference,
and collate information from several publications or sources which in
themselves evidence an effort by the United States to conceal this
identity.
Section 601(b) (1) and (2) ensure that a prosecution cannot be main-
tained under section 601(a), (b), or (c), upon theories of aiding and
abetting, misprision of a felony, or conspiracy, against an individual
who does not actually disclose information unless the government can
meet the proof requirement of section 601(c). A reporter to whom
is disclosed, illegally, the identity of a covert agent by a person prose-
cutable under section 601 (a) or (b) would most likely not be engag-
ing in the requisite course of conduct, because he would not likely be
engaged in an effort to expose covert agents without more of a show-
ing of the necessary intent.
Section 602(c) is intended to make clear that disclosures made di-
rectly to the House or Senate Intelligence Committees are not criminal
offenses.
Section 602(d) states that "it shall not be an offense under section
601 for an individual to disclose information that solely identifies him-
self as a covert agent." The word "solely" is intended to make clear
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that such an individual cannot be subject to the penalties of section 601
simply on the grounds that he revealed his own identity as a covert
agent.
Of course, this provision does not relieve the individual from any
other agreements or obligations he may have incurred.
SECTION 603-PROCEDURES FOR ESTABLISHING COVER FOR INTELLIGENCE
OFFICERS AND EMPLOYEES
Section 603 requires the President to establish procedures to ensure
that undercover intelligence officers and employees receive effective
cover. To this end, the section also stipulates that the procedures shall
provide that those departments and agencies of the government, other
than the Peace Corps. designated by the President to provide assist-
ance for cover arrangeemnts shall provide whatever assistance the
President deems necessary to effectively maintain the secrecy of such
officers and employees.
This provision of the bill does not stipulate which elements of gov-
ernment shall provide assistance or what that assistance must be. Such
procedures are exempted from any requirement for publication or dis-
closure. The Committee is not addressing in this provision the rela-
tionships between intelligence agencies and private organizations or
institutions.
This section is intended to remove any doubt of the Congress' intent
to authorize the federal government to prosecute a United States citizen
or permanent resident alien for an offense under section 601 committed
outside the United States.
This section is intended to make clear that no provision of the legis-
lation authorizes the Executive branch to withhold information from
the Congress.
Section 606(1) defines "classified information." It means identifiable
information or material which has been given protection from un-
authorized disclosure for reasons of national security pursuant to the
provisions of a statute. or executive order.
Section 606(2) defines "authorized." When used with respect to
access to classified information it means having authority, right, or
permission pursuant to the provisions of a statute, executive order,
directive of the head of any department or agency engaged in foreign
intelligence or foreign counterintelligence activities, order of any
United States court, or the provisions of any rule of the House of
Representatives or resolution of the Senate which assigns responsibility
within the respective House of Congress for the oversight of intelli-
gence activities.
Thus, the bill would not impose criminal penalties for disclosures
made pursuant to a federal court or to either of the intelligence over-
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sight committees, or for disclosures otherwise authorized by statute,
executive order, or departmental directive.
Section 606(3) defines "disclose." It means to communicate, provide,
impart, transmit, transfer, convey, publish or otherwise make available.
Section 606(4) defines "covert agent." The term encompasses three
distinct groups. In the first group are officers or employees of (or
members of the Armed Forces assigned, to) an intelligence agency
whose identities are classified and who are serving outside the United
States at the time of the disclosure or have so served within the pre-
vious five years.
In the second group are U.S. citizens in the United States who are
agents or informants of the foreign counterintelligence or foreign
counterterrorism components of the FBI, or U.S. citizens outside the
U.S. who are agents of, or informants or sources of operational assist-
ance to an intelligence agency. In each instance the intelligence rela-
tionship must be classified. Domestic agents and informants of the
CIA or the Department of Defense are not included within the
definition.
In the third group are present or former agents of an intelligence
agency and informants or sources of operational assistance to an
intelligence agency whose identities are classified and who are not U.S.
citizens.
The Committee intends the term "agent" to be construed accord-
ing to traditional agency law. Essentially, an agent is a non-employee
over whom is exercised a degree of direction and control. A "source
of operational assistance," on the other hand, is a non-employee who
is not necessarily subject to direction and control, but who supports or
provides assistance to activities which are under direction and control.
Section 606(5) defines "intelligence agency." It means the Central
Intelligence Agency, any foreign intelligence component of the Depart-
ment of Defense, or the foreign counterintelligence or foreign counter-
terrorism components of the FBI.
Section 606(6) defines "informant." It means any individual who
furnishes information to an intelligence agency in the course of a
confidential relationship protecting the identity of such individual
from public disclosure. This definition, along with that of "covert
agent," ensures that the term "informant" does not include all possible
sources of assistance or information, but is narrowly defined to bring
within it a limited number of individuals whose identity is classified
and whose relationships with an agency are or have been part of an
established foreign intelligence, foreign counterintelligence, or foreign
counterterrorism collection operation or program.
Section 606(7) defines "officer" and "employee" with the definition
given such terms by section 2104 and 2105, respectively, of title 5,
United States Code.
Section 606(8) defines "Armed Forces" to mean the Army, Navy,
Air Force, Marine Corps, and Coast Guard.
Section 606(9) defines "United States." When used in a geographic
sense it means all areas under the territorial sovereignty of the United
States and the Trust Territory of the Pacific Islands.
Section 606 (10) states that "the term `pattern of activities' requires
a series of acts with a common purpose or objective." This ensures,
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among other things, that an isolated disclosure not part of a pattern
of activities intended to identify and expose is not subject to the penal-
ies in section 601 (c). A pattern of activities cannot be random acts,
but must be part of a systematic effort to identify and expose identities
of covert agents.
In compliance with paragraph 11(a) of Rule XXVI of the Standing
Rules of the Senate, the Committee estimates that there will be little
or no cost as a result of the passage of this bill.
In accordance with rule XXVI of the Standing Rules of the Senate,
the Committee finds that, with the possible exception of section
603(a), no regulatory impact will be incurred in implementing the
provisions of this legislation.
In accordance with rule XXVI(11) (b) (1) and (2) of the Standing
Rules of the Senate, the Committee finds that it is impracticable to com-
ply with the requirement for an evaluation of the regulatory impact
of section 603(a) of this legislation for the following reasons:
(1) Section 603(a), concerning "Procedures for Establish-
ing Cover for Intelligence Officers and Employees," provides
that the President shall establish such procedures as the
President determines are necessary to provide effective cover
for intelligence officers and employees. The provision itself
neither establishes such procedures nor requires the President
to change existing procedures. Thus it is not possible for the
Committee to determine whether the President will in fact
establish new procedures for cover, or, in the event new pro-
cedures are established, what the regulatory impact of such
new procedures might be.
(2) The Committee is therefore unable to evaluate the
impact of the provision in terms of the number of individuals
who may be affected, the economic impact of any new pro-
cedures, the impact on the personal privacy of the individuals
concerned, or the additional paperwork which might result
from new procedures.
In compliance with paragraph 12 of rule XXVI of the Standing
Rules of the Senate, changes in the existing law made by the bill, as
reported, are shown as follows (new matter is printed in italic, and
existing law in which no change is proposed is shown in roman) :
(61 STAT. 497) CHAPTER 343
AN ACT to promote the national security by providing for a Secretary of Defense ;
for a National Military Establishment ; for a Department of the Army, a
Department of the Navy, and a Department of the Air Force ; and for the
coordination of the activities of the National Military Establishment with
other departments and agencies of the Government concerned with the national
security
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Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled
SHORT TITLE
That this Act may be cited as the "National Security Act of 1947."
TABLE OF CONTENTS
TITLE VI-PROTECTION OF CERTAIN NATIONAL SECURITY INFOR-
MATION
Sec. 601. Protection of identities of certain United States undercover intelligence
officers, agents, informants and sources.
Sec. 602. Defenses and exceptions.
Sec. 603. Procedures for establishing cover for intelligence officers and employees.
Sec. 604. Extraterritorial jurisdiction.
Sec. 605. Providing information to Congress.
Sec. 606. Definitions.
s s s s t s
TITLE VI-PROTECTION OF CERTAIN NATIONAL
SECURITY INFORMATION
PROTECTION OF IDENTITIES OF CERTAIN UNITED STATES UNDERCOVER
INTELLIGENCE OFFICERS, AGENTS, INFORMANTS AND SOURCES
SFC. 601. (a) Whoever, having or having had authorized access to
classified information that identifies a covert agent, intentially dis-
closes any information identifying such covert agent to any individual
not authorized to receive classified information, knowing that the
information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert
agent's intelligence relationship to the United States, shall be fined not
more than $50,000 or imprisoned not more than ten years, or both.
(b) Whoever, as a result of having authorized access to classified
information, learns the identity of a covert agent and intentionally
discloses any information identifying such covert agent to any individ-
ual not authorized to receive classified information, knowing that the
information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert
agent's intelligence relationship to the United States, shall be fined
not more than $25,000 or imprisoned not more than five years, or both.
(c) Whoever, in the course of an effort to identify and expose covert
agents with the intent to impair or impede the foreign intelligence
activities of the United States by the fact of such identification and
exposure, discloses to any individual not authorized to receive classi-
fied information, any information that identifies an individual as a
covert agent, knowing that the information disclosed so identifies
such individual and that the United States is taking affirmative meas-
ures to conceal such individual's classified intelligence relationship to
the United States, shall be fined not more than $15,000 or imprisoned
not more than three years, or both.
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SEC. 602.(a)It is a defense to a prosecution under section 601 that
before the commission of the offense with which the defendant is
charged, the United States had publicly acknowledged or revealed
the intelligence relationship to the United States of the individual
the disclosure of whose intelligence relationship to the United States
is the basis for the prosecution.
(b) (1) Subject to paragraph (2), no person other than a person
committing an offense under section 601 shall be subject to prosecu-
tion under such section by virtue Of section 2 or 4 of title 18, United
States Code, or shall be subject to prosecution for conspiracy to com-
mit an offense under such section.
(2) Paragraph (1) shall not apply in the case of a person who
acted in the course of a pattern of activities intended to identify and
expose covert agents and with reason to believe that such activities
would impair or impede the foreign intelligence activities of the
United States.
(c) It shall not be an offense under section 601 to transmit infor-
mation described in such section directly to the Select Committee
on Intelligence of the Senate or to the Permanent Select Committee
on Intelligence of the House of Representatives.
(d) It shall not be an offense under section 601 for an individual
to disclose information that solely identifies himself as a covert agent.
PROCEDURES FOR ESTABLISHING COVER FOR INTELLIGENCE OFFICERS
AND EMPLOYEES
SEC. 603. (a) The President shall establish procedures to ensure that
any individual who is an officer or employee of an intelligence agency,
or a member of the Armed Forces assigned to duty with an intelli-
gence agency, whose identity as such an officer, employee, or member
is classified information and which the United States takes alinative
measures to conceal is afforded all appropriate assistance to ensure
that the identity of such individual as such an officer, employee, or
member is effecti 'ely concealed. 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 provide such assist-
ance as may be determined by the President to be necessary in order to
establish and effectively maintain the secrecy of the identity of such
individual as such an officer, employee, or member.
(b) Procedures established by the President pursuant to subsection
(a) shall be exempt from any requirement for publication or dis-
closure.
Sec. 604. There is ~nrisdiction over an offense under section 601 com-
mitted outside the United States if the individual committing the
offense is a citizen of the United States or an alien lawfully admitted
to the United States for permanent residence (as defined in section
101 (a) (20) of the Immigration and Nationality Act).
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Sec. 605. Nothing in this title shall be construed as authority to
withhold information from Congress or from a committee of either
House of Congress.
SEe. 606. For the purpose of this title :
(1) The term "classi fied 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 protection against un-
authorized disclosure for reasons of national security.
(2) The term "authorized," when used with respect to access to
classified information, means having authority, right, or permis-
sion pursuant to the provisions of a statute, Executive order, di-
rective of the head of any department or agency engaged in for-
eign intelligence or counterintelligence activities, order of any
United States court, or provisions or any Rule of the House of
Representatives or resolution of the Senate which assigns respon-
sibility within the respective House of Congress for the oversight
of intelligence activities.
(3) The term "disclose" means to communicate, provide, im-
part, transmit, transfer, convey, publish, or otherwise made avail-
able.
(4) The term "covert agent" means-
(A) an officer or employee of an intelligence agency or a
member of the Armed Forces assigned to duty with an intelli-
gence agency,
(i) whose identity as such an officer, employee, or mem-
ber is classified information, and
(ii) who is serving outside the United States or has
within the last five years served outside the United
States, or
(B) a United States citizen whose intelligence relationship
to the United States is classified information and
(i) who resides and acts outside the United States as
an agent of, or informant or source of operational assist-
ance to, an intelligence agency, or
(ii) who is at the time of the disclosure acting as an
agent of, or informant to, the foreign counter-intelli-
gence or foreign counterterrorism components of the
Federal Bureau of Investigation, or
(C) an individual, other than a United States citizen, whose
past or present intelligence relationship to the United States
is classified information and wh o is a present or former agent
of, or a present or former informant or source o f operational
assistance to, an intelligence agency.
(5) The term "intelligence agency" means the Central In
of telli-
gence Agency, a foreign intelligence component the Depart-
ment o f Defense, or the foreign counterintelligence or foreign
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counterterrorism components of the Federal Bureau of Investi-
gation.
(6) The term "informant" means any individual who furnishes
information to an intelligence agency in the course of a con fiden-
tial relationship protecting the identity of such individual from
public disclosure.
(7) The terms "o icer" and "employee" have the meanings given
such terms by section 2104 and 2105, respectively, of title 5, United
States Code.
(8) The term "Armed Forces" means the Army, Navy, Air
Force, Marine Corps, and Coast Guard.
(9) The term "United States", when used in a geographic sense,
means all areas under the territorial sovereignty of the United
States and the Trust Territory of the Pacific Islands.
(10) The term "pattern of activities" requires a series of acts
with a common purpose or objective.
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