INTELLIGENCE IDENTITIES PROTECTION ACT S 2216 HEARING BEFORE THE COMMITTEE ON THE JUDICIARY UNITED STATES SENATE

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• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200080003-5
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• Document Creation Date: December 21, 2016
• Document Release Date: October 31, 2008
• Sequence Number: 3
• Publication Date: September 5, 1980
• Content Type: OPEN SOURCE

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INTELLIGENCE IDENTITIES PROTECTION ACT, S. 2216
HEARING
COMMITTEE ON THE JUDICIARY
UNITED STATES 'SENATE
NINETY-SIXTH CONGRESS
S. 2216
Serial No. 96-86
U.S. GOVERNMENT PRINTING OFFICE
71-080 O WASHINGTON :1980
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COMMITTEE ON THE JUDICIARY
EDWARD M. KENNEDY, Massachusetts, Chairman
BIRCH BAYH, Indiana
ROBERT C. BYRD, West Virginia
JOSEPH R. BIDEN, Ja., Delaware
JOHN C. CULVER, Iowa
HOWARD M. METZENBAUM, Ohio
DENNIS DECONCINI, Arizona
PATRICK J. LEAHY, Vermont
MAX BAUCUS, Montana
HOWELL HEFLIN, Alabama
STROM THURMOND, South Carolina
CHARLES McC. MATHIAS, JR., Maryland
PAUL LAXALT, Nevada
ORRIN O. HATCH, Utah
ROBERT DOLE, Kansas
THAD COCHRAN, Mississippi
ALAN K. SIMPSON, Wyoming
STEPHEN BREYEE, Chief Counsel
EMORY SNEEDEN, Minority Chief Counsel
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CONTENTS
FRIDAY, SEPTEMBER 5, 1980
Page
Opening statement of Senator Metzenbaum---------------------------- 1
Opening statement of Senator Thurmond------------------------------- 8
TESTIMONY
Chafee, Senator John------------------------------------------------- 4
Aspin, Congressman Les---------------------------------------------- 34
Panel of Government officials :
Carlucci, Frank C., Deputy Director, Central Intelligence Agency,
accompanied by Daniel B. Silver, General Counsel, and Frederick P.
Hitz, legislative counsel ; Robert L. Keuch, Associate Attorney Gen-
eral, Department of Justice; Edward J. O'Malley, Assistant Director,
Intelligence Division, Federal Bureau of Investigation, accompanied
by Jim Sturgis, Special Assistant to the Assistant Director, FBI---- 41
Panel of legal experts :
Abrams, Floyd, attorney ; Morton Halperin, director, Center for Na-
tional Security Studies, American Civil Liberties Union, accom-
panied by Jerry Berman, legislative counsel ; Ford Rowan, attorney,
and Sol Yurick, Pen American Center--------------------------- 94
PREPARED STATEMENTS
Abrams, Floyd------------------------------------------------------- 116
Aspin, Congressman Les-------------------- ------------------------- 38
Carlucci, Frank C---------------------------------------------------- 65
Chafee, Senator John------------------------------------------------- 30
Halperin, Morton---------------------------------------------------- 119
Keuch, Robert L------------------------------------------------ ---- 90
O'Malley, Edward J-------------------------------------------------- 93
Rowan, Ford--------------------------------------------------------- 121
Yurick, Sol---------------------------------------------------------- 123
APPENDIX
Letter to Senator Bayh from Charles B. Renfrew, Deputy, Attorney Gen-
eral, Department of Justice, re S. 2216, July 29, 1980------------------ 125
Letter to Congressman Murphy from Robert L. Keuch, Associate Deputy
Attorney General, Department of Justice, re legal questions on H.R. 5615,
June 13,1980----------------------------------------------------- 127
"Killing Freedom To Save It," by Tom Wicker, article, New York Times,
September 5, 1980-------------------------------------------------- 132
"The Boundaries of Free Speech," editorial, Washington Star, September
5,1980------------------------------------------------------------- 133
(III)
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INTELLIGENCE IDENTITIES PROTECTION ACT, S. 2216
FBSDAY, SEPTEMBER 5, 1980
U.S. SENATE,
COMMrrTEE ON THE JUDICIARY,
Washington, D.C.
The committee met, pursuant to notice, at 9:07 a.m., in room 2228,
Dirksen Senate Office Building, Senator Howard M. Metzenbaum,
presiding.
Present : Senators Metzenbaum, Thurmond, and Simpson.
OPENING STATEMENT OF SENATOR METZENBAUM
Senator METZENBAUM. I am not certain that there is any need to
conduct these hearings this morning, since we have been edified by an
editorial in the Washington Post, an editorial in the Washington
Star, and an article by Tom Wicker in the New York Times. So on
that basis, John, I think it is 2 to 1 against your bill in its present
form, and I do not know that we need to conduct the hearings. But,
having made that comment, I think we will go forward anyhow.
In recent years, the personal - safety and the professional effective,
ness of our intelligence agents stationed abroad have been called
into serious question as the result of a campaign by a few individuals
to publicize their identities. On several occasions, American officials
who were so identified became the targets of assassination attempts.
One of those attempts succeeded in December 1975, when Richard S.
Welch, the CIA station chief in Athens, was murdered.
About a month before his death, Mr. Welch had been publicly
identified by an Athens Daily News story based on information that
appeared in Phillip Agee's Counterspy magazine. And in July of this
year, assassination attempts were made on U.S. officials in Jamaica
a few days after they were listed as CIA employees by a publication
called the Covert Action Information Bulletin.
These disclosures are truly outrageous. I have only contempt for
those who would compromise men and women who are engaged in
difficult, dangerous work that is vital to the security of this country.
I heartily endorse the objectives of the legislation before this com-
mittee today.
Nevertheless, we must also recognize that S. 2216 and bills like it
raise fundamental first amendment issues, especially when we deal
with unclassified information obtained from public sources and dis-
seminated by private citizens. In writing his additional views to the
report of the Senate Intelligence Committee, our colleague, Senator
Joseph Biden, perceptively called for further examination of such
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issues as "the constitutionality of criminalizing any disclosures what-
soever, no matter how reprehensible, if they are based on publicly
available information * * * and the possibility that this bill is still
overboard and, therefore, potentially unconstitutional."
Senator Biden went on to warn :
Although to the current members of the Intelligence Committee the intent of
this bill is straightforward and narrow, is it feasible that at some time in the
future less cautious officials could level a similar statute at a broad class of
individuals, many acting within the Constitution?
Recent history provides ample evidence to justify his concerns.
There are other problems. For example, the definition of "covert
agents" includes agents of the foreign counterintelligence and coun-
terterrorism components of the FBI even if they serve in the United
States and can be protected by enforcement agencies of the United
States.
Second, intelligence operations in the United States have been
criticized for infiltrating the ranks of various domestic organizations.
Under 501(c) of S. 2216, it might be criminal if someone connected
with an infiltrated organization discovers the identity of an agent and
discloses it to the organization's members.
The Intelligence Committee report indicates that the bill is intended
to protect the safety of U.S. agents and informants. Yet 501(c) makes
disclosure criminal, even without proof that the act was done know-
ingly or with reckless disregard that it would jeopardize the life or
safety of the agent.
These are matters of the highest constitutional significance. The
problems are not easy, and it is appropriate that this committee study
them carefully.
To deal with these and other issues, Senator Bayh has proposed one
amendment; Congressman Les Aspin, a member of the House Intelli-
gence Committee, has proposed another. Congressman Aspin is with
us today as a witness.
I want to stress that I have no desire, nor will I do anything what-
soever, to block or hold up this extremely useful legislation. I want
only to improve it, if and where necessary. I hope others will work
with me toward that end so that the legislation can move forward.
Our witnesses today are : Senator John Chafee, a member of the
Senate Select Committee on Intelligence; Congressman Les Aspin, a
member of the House Committee on Intelligence ; Associate Deputy
Attorney General Robert Keuch, Department of Justice; Frank Car-
lucci, Deputy Director of Central Intelligence; Edward J. O'Malley,
Assistant Director, Intelligence Division, Federal Bureau of Investi-
gation ; Floyd Abrams, of Cahill, Gordon & Reindell ; Morton Hal-
perin, director of the Center for National Security Studies; Jerry
Berman, representing the American Civil Liberties Union ; Ford
Rowan, of Stanford, Adams, McCullough & Bear; and Sol Yurick,
Pan American Center.
I read the list for two reasons : First, to advise who will be our wit-
nesses today, and second, for the implication that I am going to have
to hold our witnesses to relatively brief statements because the Chair
does have a number of questions.
Senator Thurmond?
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Senator THURMOND. Thank you very much, Mr. Chairman. I ask
unanimous consent that this statement appear following the opening
statement by the chairman this morning.
Senator METZENBA . Without objection.
Senator THURMOND. Since the mid-1970's, a number of publications
and articles have appeared which have revealed the identities of either
active or former intelligence agents. The publication of these names
has led to the death of at least one agent and threats and attempts on
the lives of others. There is no reason for this situation to continue.
For this reason, I support this legislation, which would make it a crime
to intentionally disclose or identify the names or identity of a covert
agent.
Mr. Chairman, the need for this legislation should be obvious. The
enemies of this Nation, both within and without, gain an unparal-
leled advantage whenever the identity of covert agents are made
known to the public. No intelligence gathering agency can expect
to operate effectively if it cannot insure the protection of its agents,
informants, and undercover sources. The security of the United
States depends upon our ability to offer such protection. The lack of
specific criminal statutes to punish the disclosure of covert agents
is a serious flaw which needs correcting. S. 2216 is intended to do
just that.
Today, we will hear from the Central Intelligence Agency, the Fed-
eral Bureau of Investigation and other witnesses on the effect of this
legislation. I expect there will be those who will find problems with
the legislation because they say it raises first amendment concerns. I
respect those views, but in my opinion, there are times when the first
amendment must be viewed in a broader context. In other words, there
will be no first amendment if the enemies of this country are successful
in destroying our intelligence agencies and ultimately, bring about the
fall of the American system of government as we know it. To some,
that thought may be characterized as "impossible," but to many others,
it is all too "possible."
Mr. Chairman, this legislation should not be delayed, substantially
amended, or killed, simply to placate a small minority who see first
amendment concerns every time the Government takes steps to protect
itself from conduct contrary to America's interest. This bill is not
intended to affect legitimate news gathering or publishing. It is only
directed at the specific conduct of revealing the names of intelligence
agents protected by classified information. I believe such conduct is
justifiably covered by a criminal statute.
Mr. Chairman, I have agreed to this hearing with the understand-
ing that this bill be processed quickly in the Judiciary Committee and
sent to the floor for prompt action. As the presiding chairman knows,
this legislation has been overwhelmingly approved by the Senate
Select Committee on Intelligence and was only referred to the Judici-
ary Committee at the request of the chairman for a limited period pur-
suant to an agreement between myself and the chairman. I therefore
anticipate prompt consideration and approval of this legislation by the
full committee.
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Senator METZENBAUM. I could not be more pleased about the fact
that our first witness today is my colleague and good friend, an es-
teemed Member of the Senate, Senator Chafee. I am happy to have
you with us.
STATEMENT OF SENATOR CHAFEE
Senator CHAFEE. Thank you very much, Mr. Chairman.
First, I want to say that I am delighted to be here this morning to
comment on the Intelligence Identities Protection Act, S. 2216, which
was recently reported from the Senate Intelligence Committee by a
vote of 13 to 1, and which you are now considering within your com-
mittee.
Mr. Chairman, from the time that George Washington dispatched
Benjamin Franklin to France in 1776, the Government of the United
States has sent American citizens abroad on difficult and dangerous
missions in pursuit of the goals of our Nation. In 1947, this activity
was institutionalized by President Truman with the formation of the
Central Intelligence Agency-and a permanent cadre of covert agents
was created.
Covert action and the assignment of Americans abroad-our fellow
citizens-to carry out such action has had, and now has, the support of
every administration since President Truman, and every Congress, in-
cluding this one to which you and I and the other 98 Members of the
Senate belong.
In the last 5 years, certain other Americans have made a profession
of ferreting out the identities and publishing the names of these agents,
with the result, as you commented in your opening statement, that
their lives and the lives of their families and friends are placed in
jeopardy. You mentioned Richard S. Welch, who was murdered in
December 1975. Richard Welch was from Rhode Island, from a family
that had been there many years and, as you mentioned, he was mur-
dered in Athens, as a result of this "naming names."
The lives of others have been threatened. Yet there is no law on the
books today under which this activity of "naming names" can be pre-
vented.
Mr. Chairman, I have here-and I will send to you to look over-
the "Covert Action Bulletin," where the very title is "Naming Names,"
in which they go through a whole series of countries alphabetically-
Algeria, Argentina, Austria-in which they cite names of alleged CIA
agents abroad.
Senator METZENBAUM. Is the Senator requesting that that be in-
serted in the record or not?
Senator CHAFES. Mr. Chairman, I do not think it is necessary to put
it in the record, but I just thought you might be interested and might
desire to look at it.
Senator METZENBAUM. Whatever you desire.
Senator CHAFEE. This is an intolerable situation. As legislators, I
believe that we have a responsibility to draft a bill which places crim-
inal penalties on those who are in the business of exposing our agents,
and which, at the same time, the legislation must not threaten the
critic of intelligence policy or the journalist who might reveal the
name of an agent in the course of a news report.
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In my judgment, and in the judgment of the majority of my col-
leagues on the Senate Intelligence Committee, the Intelligence Iden-
tities Protection Act of 1980 meets this dual standard. However, be-
cause the question has been raised as to whether this bill chills first
amendment rights, I would like to focus specifically on this issue as
I address your committee here today.
The section of the first amendment to the Constitution that pertains
to our discussion states that : "Congress shall make no law * * * abridge-
ing the freedom of speech, or of the press. * * *"
The first point that I wish to make with regard to this amendment
is that the provisions of the Bill of Rights cannot be applied with
absolute literalness, but are subject to exceptions. It has long been
recognized that the free speech clause of the Constitution cannot wipe
out common law regarding, for example, obscenity, profanity, and
the defamation of individuals. This point was reiterated by Justice
Oliver Wendell Holmes in the Classic Espionage Act decisions in
1919, when he stated that,
The First Amendment obviously was not intended to give immunity for every
possible use of language. The most stringent protection of free speech would
not protect a man in falsely shouting fire in a theater and causing a panic.
A second and equally important point is that if unlimited speech
interferes with the legitimate purpose of government, there must be
some point at which the government can step in.
My uncle, Zechariah Chafee, who was the leading defender of free
speech during his 37 years at the Harvard Law School, wrote in his
book titled, "Free Speech in the United States," that,
The true boundary line of the first amendment can be fixed only when Con-
gress and the courts realize that the principle on which speech is classified as
lawful or unlawful involves the balancing against each other of two very im-
portant social interests, in public safety and in the search for truth. Every
reasonable attempt should be made to maintain both interests unimpaired, and
the great interest in free speech should be sacrificed only when the interest in
public safety is really imperiled, and not, as most men believe, when it is barely
conceivable that it may be slightly affected. In war time, therefore, speech should
be unrestricted by the censorship or by punishment, unless it is clearly liable to
cause direct and dangerous interference with the conduct of the war. Thus,
our problem of locating the boundary line of free speech is solved. It is fixed
close to the point where words will give rise to unlawful acts.
That is on page 35 of Professor Chafee's "Free Speech in the United
States."
Now, Mr. Chairman, it is clear that the activity of "naming names"
has given rise to unlawful acts, and that it has endangered the safety
of American citizens serving abroad. I have already mentioned the
murder of Richard S. Welch in Greece. I am sure all of you also re-
member the recent series of assassination attempts in Kingston, Ja-
maica, following Louis Wolf's publication of the names of 15 alleged
CIA officers there last month.
The Director and the Deputy Director of the CIA have testified
publicly and in closed sessions before the Senate Intelligence Commit-
tee on a number of occasions regarding this activity. It is clear that
the safety and the missions of those named have been placed in jeop-
ardy by "naming names."
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What is not so clear is where "naming names" contributes to what
my uncle has characterized as the important social interest of the
search for truth.
For example, it is difficult to see how the knowledge that a particu-
lar individual serving in an Embassy abroad is paid by CIA rather
than the State Department, how this materially contributes to our
search for the truth.
In this regard, Mr. Chairman, I think it is essential to point out that
this bill would not prevent Mr. Agee from publishing the articles
contained in his publications, obnoxious though some might think
them to be. This bill would only restrain his publication of the names
of persons he claims are covert agents. By the same token, there is
nothing in this bill which would prevent Mr. Louis Wolf from con-
tinuing to publish the "Covert Action Information Bulletin," which
does contain articles purported to be based on "research" into U.S.
intelligence operations at home and abroad. The only impact of this
legislation would be in the section of the "Bulletin" entitled "Naming
Names." In fact, there is nothing in this law that would prevent Wolf
from giving anti-CIA or anti-American speeches in Jamaica as long
as the speeches do not contain the names of alleged CIA agents.
Mr. Chairman, I hope that this brief review of constitutional his-
tory will show that the first amendment does not provide absolute
protection for all speech, and that the Government can, in certain
circumstances, intervene in the exercise of free speech in the interest
of public safety, without jeopardizing the search for truth. As At-
torney General Civiletti stated earlier this year on this subject, "Our
proper concern for individual liberties must be balanced with a concern
for the safety of those who serve the Nation in difficult times and un-
der dangerous conditions."
It goes without saying that these important constitutional consid-
erations were very much in our mind when my colleagues and I
worked up the final draft of the Intelligence Identities Protection
Act. We are not challenging the Constitution. We are working with
it. In my judgment, we have worked well within its limits. We have
successfully followed what my uncle called the boundary line of free
speech.
In turning, now, to the specific provisions of our bill, I would like
to make several observations which I hope will show that from a
practical as well as a constitutional standpoint, this bill is the best
solution to the legislative problem which we face.
The Senate Intelligence Committee has held a number of hearings
on intelligence identities protection legislation. In particular, we have
focused on the provisions of S. 2216, which was introduced originally
last January, in other words, well before the Jamaica incident. There
have been some allegations that this is an hysterical reaction to the
Jamaica situation ; not at all. This bill was introduced last January.
While most witnesses express support for what are now sections
501 (a) and (b) of our current bill, many witnesses, including the
Justice Department, raised questions on the section of the bill which
made criminal the disclosure of intelligence identities by anyone who
acted "with the intent to impair or impede the foreign intelligence or
counterintelligence activities of the United States."
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Mr. Chairman, the Justice Department and at-hers felt that this
"intent standard" was objectionable because it might lead to prose-
cution which would turn on the political motivations of the accused.
For example, the writer might defend his disclosures on the grounds
that his intent was to improve, not impede, the foreign intelligence
activities of the United States. In order to avoid this problem, I of-
fered an amendment to the original version of S. 2216, which in para-
graph 501 (c) adopts a standard of prosecution based on the "pattern
of activities" rather than the "intent" of the disclosure.
Mr. Chairman, it is in 501(c) that the difference arises between the
House bill and this bill. Some witnesses, or telegrams or letters that
might be received might well be addressing the 501 (c) that is in the
House bill, as opposed to the language which we have in (c) of this
Senate version. This amendment, which was supported by the Justice
Department and adopted by the Senate Intelligence Committee, pro-
vides as follows-and this, Mr. Chairman, is really the heart of the
bill, and I might say, of whatever controversy there is-now, I note
the following, as I read it, that there are a whole series of steps that
must be proven by any prosecutor :
Whoever, in the course of a pattern of activities intended to identify and
expose covert agents and with reason to believe that such activities would impair
or impede the foreign intelligence activities of the United States, discloses any
information that identifies an individual as a covert agent to any individual
not authorized to receive classified information, knowing that the information
disclosed so identifies such individual and that the United States is taking af-
firmative measures to conceal such individual's classified intelligence relationship
to the United States, shall be fined not more than $15,000 or imprisoned not more
than 3 years, or both.
Now, Mr. Chairman and members of the committee, this section
is very carefully drawn because a person must disclose information
identifying a covert agent in the course of a pattern of activities which
are intended to identify and expose covert agents. We have carefully
differentiated between the journalist who may reveal the name of an
agent in a news article and the person who has made it his purpose
and business to reveal the names of agents, and has engaged in a
pattern of activities intended to do so.
Clearly, the legitimate journalist would not be engaged in such a
pattern of activities. I should note that the "intent" in this case is what
is known as an "objective" intent-that is, intent in which the person
intends the logical consequences of his act. It is not dependent on his
political beliefs, motivations, or opinion. Thus, the vehemence of his
criticism of the CIA or the United States is not an issue.
There are other standards and protections here as well. First, in
order to be liable for prosecution, a person must act with reason to
believe that his disclosure would impair or impede the foreign intelli-
gence activities of the United States. Someone who revealed the names
of all CIA agents operating in the Soviet Union would surely have
reason to believe that such disclosure would impair or impede U.S.
intelligence activities. On the other hand, a journalist who revealed in
a newsstory about the U-2 incident that Francis Gary Powers was an
American agent would have little reason to believe his disclosure would
or could further impair or impede U.S. intelligence activities; nor, for
that matter, would he be engaged in the requisite "pattern of activi-
ties."
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Second, in order to be liable, a person must know that the informa-
tion disclosed so identifies the covert agent. A journalist who reported,
for example, a general statement that CIA officers serve undercover
in U.S. embassies abroad would not be liable, because that information
would not by itself identify a covert agent. However, a person who
identified a particular officer by position, personal description and gave
his home address would clearly know that he was identifying such an
agent. But that alone would not subject him to prosecution. He would
have to do this in the course of a pattern of activities.
Finally, to be convicted of this crime, a person must know that the
United States is taking affirmative measures to conceal an individual
agent's classified intelligence relationship to the United States.
In summary, Mr. Chairman, we have drafted a bill designed to stop
those engaged in the business of "naming names" and we have care-
fully drafted it to protect the legitimate rights of free speech of the
journalist, however critical he may be of the CIA, its activities or its
policies.
The Justice Department has not only withdrawn its objection, but
has actively supported this legislation because, in the words of Deputy
Attorney General Renfrew, "The formulation substantially alleviates
the Constitutional and practical concerns expressed by the Justice De-
partment with regard to earlier versions of this bill." And, Mr. Chair-
man, I would ask that a copy of Mr. Renfrew's letter to the chairman
of our Senate Intelligence Committee be placed in the record.
Senator METZENBAUM. Without objection, it will be inserted follow-
ing your statement.
Senator CHAFEE. Thank you, Mr. Chairman.
There is one additional issue, which I believe must be addressed
before I conclude my remarks, because there has been so much con-
fusion surrounding it. During the long public debate on this issue and
in the hearings before the Senate Intelligence Committee, I have heard
it suggested or implied that it should be acceptable for people to dis-
close the names of covert agents if this information derives from un-
classified sources. The implication of this view is that there exists
somewhere in this Government an official but unclassified list of covert
agents and that those who have found this list should be free to pub-
ish the names thereon.
Mr. Chairman, I have studied the matter of cover for covert agents
within the Senate Intelligence Committee, and have held a series of
detailed hearings on the matter of cover. Without going into the
specifics in open session, I can assure you there is no such list. What
we have found are unclassified official or semiofficial documents which
contain the names of covert agents in among the names of other officials
of the U.S. Government. The covert agents are not identified. The very
purpose of these documents is to cover or to hide the true identity of
the covert agents named thereon, and in no case is an identification
explicity made.
However, to say that the Government has never published an un-
classified list of covert agents as such does not mean that certain per-
sons, employing basic principles of counterespionage, and after con-
siderable effort, cannot determine identities of covert agents with some
degree of accuracy.
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It is the purpose of S. 2216 to punish the publication of names ac-
quired through these techniques regardless of whether the identifica-
tion was made with reference to classified or unclassified information.
After all, it is not the mechanism of identification which places peo-
ple's lives in jeopardy and threatens our intelligence capabilities. It is
the actual publication of people's names as covert agents that does so.
It is the pattern of "naming names" that we want primarily to prevent.
In closing, Mr. Chairman, I would like to clarify several misunder-
standings and misstatements that have crept into the debate with
regard to this legislation.
The purpose of this legislation is not to "get" any group of indi-
viduals, but to criminalize a particular activity which jeopardizes the
lives and missions of American intelligence officers serving abroad;
the current version of the Intelligence Identities Protection Act of
1980 does not criminalize the "intent" of those who are "naming
names," but the pattern of activities in which they are engaged; this
bill, as I mentioned previously, is not a hasty response to recent events
in Jamaica, but the product of legislative efforts dating back to the
94th Congress in 1975, and this current legislation was introduced in
January of this year; this act has not been drafted over the objections
of the Justice Department and the press, but actually reflects the con-
cerns and incorporates the recommendations of these entities in its cur-
rent form.
Originally, as I mentioned, Mr. Chairman, the Justice Department
was opposed to the 2216 as introduced, and changes were made to ac-
commodate the objections of the Justice Department.
Mr. Chairman, over the past 5 years, more than 2,000 names of
alleged CIA officers have been identified and published by a small
group of individuals whose stated intention is to expose U.S. intelli-
gence operations. I think it is time that we legislated an end to this
pernicious vendetta against the American intelligence community, and
I urge you and your colleagues on the Judiciary Committee to move
expeditiously in reporting this bill out of committee before more lives
are jeopardized and more damage is done.
And finally, Mr. Chairman, and this is a key point I would like to
leave with you and your members, the easiest role that any of us might
assume in this Senate is to do nothing; to brush aside the problems
because the solution is too difficult. But, Mr. Chairman, we as Members
of this Congress send fellow Americans abroad on dangerous missions
which are supported by us as Senators and by our administration. We
owe it to them to do your utmost to protect their lives as they go about
their business.
Thank you very much, Mr. Chairman. I would be very glad to answer
any questions.
Senator METZExsAVM. Thank you very much, Senator Chafee. I
do have a number of questions, but out of courtesy to the ranking
minority member of the Judiciary Committee, I am going to turn it
over to him because he must leave about 10:10 for another committee
hearing.
Senator Thurmond 8
Senator TxtRMOxn. First, I would like to take this opportunity,
Senator Chafee, to commend you and the others who sponsored this
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bill. I think you are very wise in doing that, and I am confident it is
in the best interest of the Nation.
I would also like to compliment you upon your magnificent state-
ment that you made here today. It shows a broad and comprehensive
knowledge of this problem, that must be confronted by the Amer-
ican people.
I have no questions.
I wish to thank the chairman for his courtesy. I will have to leave
in about 10 minutes.
Again, we are delighted to have you with us, Senator Chafee.
Senator CHAFEE. Thank you very much, Senator Thurmond.
Senator METZENBAUM. We are very happy to have you with us for
even a limited time, Senator Thurmond. As I stated in my opening
statement, it is the understanding of all that we will attempt to move
this legislation with dispatch, and with no intent to kill it or adversely
impact upon it by delay, but there are certain constitutional issues that
we want to get into.
Senator Chafee, as you know, Senator Biden and others have pointed
out that there is a real question about the constitutionality of punish-
ing private citizens for making use, no matter how despicable the use
may be, of unclassified information that is openly available to the
public, and the question that once you start down that road, how far do
you go in imposing penalties for using unclassified information that is
openly available to the public.
Now, at page 11 of your testimony, you say that the bill incorporates
the view of the press. I would guess that you have seen the letter to
Senator Kennedy, dated August 5, 1980, which expressed serious con-
cern about S. 2216-at this point, I will include that entire letter in
the record.
[The letter referred to above follows:]
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11
August 5, 1980
The Honorable Edward M. Kennedy
Chairman
Senate Judiciary Committee
Room 2226
Dirksen Senate Office Building
Washington, DC 20510
Dear Senator Kennedy:
we are writing to express concern over a provision of
S. 2216, the "agents' identities" bill, which would subject
members of the press to criminal penalties for news stories that
identify covert CIA agents.
The bill, as reported by the Senate Intelligence Committee,
raises troubling constitutional questions which we think should
be addressed by the Senate Judiciary Committee.
We have no quarrel with the intent of S. 2216, but we
think S_ 2216 casts too wide a net. As we understand the bill,
it would subject reporters, authors, publishers and broadcasters
to possible imprisonment for revealing the names of covert agents,
regardless of motive or whether the information was derived
from unclassified documents.
If-S. 2216 becomes law, we believe it would have a chilling
effect on vital and necessary news coverage. For example, it
might have kept the media from reporting the CIA connections
of some of the Watergate burglars. More recently, the White House
was reported to be the source of leaks about details of the
Iranian hostage rescue mission which may have compromised CIA
agents and sources in Iran. Under S. 2216, those reporting such
stories could face prosecution.
We appreciate the difficulty of drafting a bill that gives
the government adequate tools to halt the purposeful disclosure
of agents' names without infringing on the First Amendment
guarantees of free speech and free press. But we urge the Senate
Judiciary Committee to hold hearings to consider the implications
of,. and alternatives to, S. 2216. One possible approach would be
to liritit criminal liability to those who have had access to
classified information.
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12
We would be happy to discuss this in further detail with
you or your staff.
cc: Members, ROBERT LEWIS
Senate Judiciary Correspondent,
Committee Newhouse News Service
Chairman, Freedom of
Information Committee,
The Society of Professional
Journalists, Sigma Delta Chi
T yi7ULLQ~~ C e""
TOWNSEND HOOPES --L _
President,
Association of American
Publishers, Inc.
IRWIN KARP
Counsel,
Authors League of America
PETER C. LOVENHEIM
Project Director,
Freedom of Information Service
Center (Reporters Conunittee with
Society of Professional Journalists)
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a42?L G. ARTHUR B. SACKLER
General Counsel
National Newspaper Association
l~'E ~ ~t2 Wow.
CURTIS BECKMANN
News Director, WCCO-AM
Minneapolis, Minn.
President,
Radio-Television News
Directors Association
Executive Director
The Reporters Committee for
Freedom of the Press
JERRY W.'FRIEDHEIM
Executive Vice-President and
General Manager,
American Newspaper Publishers
Association
~,p~,E'ra. W d3
CHARLES W. BAILEY
Editor, Minneapolis Tribune
Chairman, Freedom of Information
Committee
71-030 0 - 81 - 2
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Senator METZENBAUM. As you know, the letter makes the following
points: That "S. 2216 casts too wide a net"; it would have a chilling
effect on vital, necessary news coverage. This letter was signed by 10
organizations, including the National Newspaper Association, the
Radio-Television News Directors Association, the American News-
paper Publishers Association, and the American Society of Newspaper
Editors.
I guess my question is, under those circumstances, is it not apparent
that there still is considerable concern by the press that, in their words,
it "casts too wide a net"?
Senator CHAFES. Oh, I think you are right, Mr. Chairman. There
have been contrary editorials, as you yourself mention in your opening
statement, and I would say that the majority of the press are not in
favor of this legislation. What I was intending to say in that statement
was that we had hearings at which the press were represented, and this
legislation as originally introduced was modified to incorporate the
concerns and recommendations of the press, but it did not satisfy-if
I gave the impression that the press was satisfied, that is an incorrect
impression. But we did have the press represented, and we attempted
to incorporate their concerns, and their concerns were incorporated,
but it does not satisfy them; I do not want to give that impression.
Senator METZENBAUM. Let me ask you, did the Department of Jus-
tice ever give you a formal legal opinion or analysis of the constitu-
tional issues supporting the present version?
Senator CHAFEE. Well, what we have here is this letter, which I put
into the record here, and which the Deputy Attorney General, Mr.
Renfrew said, quoting the language that we substituted for the (c),
and this is dated July 29 of this year :
This formulation substantially alleviates the Constitutional and practical con-
cerns expressed by the Justice Department with regard to earlier versions of
this bill that included a requirement that prohibited disclosures be made with
the specific intent to impair or impede U.S. intelligence activities.
Senator METZENBAUM. How about the issue of the constitutionality?
Did they ever really pass upon that, or give you any kind of formal
opinion indicating that they had analyzed the constitutional questions?
And I would ask you, knowing of your objective and the propriety and
the rightness of what you are attempting to do, does it not give you
some concern that this legislation, as I understand it, would make the
publication of unclassified information, information that is public,
under certain circumstances a criminal act?
Senator CHAFEE. Mr. Chairman, it isn't that this information is as-
sembled in some nice, convenient place, or that all a person has to do
is reach up in the library and pluck out a volume and proceed to pub-
lish the names of the agents that are there. Anybody who obtains this
information has to make a very detailed and difficult, painstaking
search. But even if that is done, Mr. Chairman, and that is published,
that wouldn't constitute a pattern of activities. They get more than one
bite. And, Mr. Chairman, again, it is the balancing act that Zechariah
Chafee refers to in the language I quoted, in which the rights of the
individual against the legitimate interests of the state and the pre-
vention of unlawful acts. And, Mr. Chairman, a careful examination
of section 501 (c) within this act, reveals that there has to be at least
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five different steps of proof before those charged can be prosecuted.
There has to be a pattern of activities, it has to be with the belief that
the activities would impair and impede the foreign intelligence activi-
ties, and that to disclose the individual name of an individual, know-
ing that the individual so identified would be identified by this
disclosure, and that the United States is taking affirmative measures
to conceal the identity of that information.
And, Mr. Chairman, it is the publication of these names after this
detailed search and a series of such steps that raises the ability to prose-
cute the individual.
Senator METZENBAUM. You talk about the constitutional aspects, and
you certainly hold up a very distinguished constitutional authority,
your uncle. But I think that before the Intelligence Committee Floyd
Abrams pointed out six or so cases, raising questions with respect to
the constitutional aspects. It was in that context that I asked the ques-
tion as to whether or not the Department of Justice had given you any
formal legal opinion or had been asked to make an analysis of the con-
stitutional issues. Would you join with us in asking the Justice De-
partment-or perhaps you would want to ask it yourself-for a legal
opinion based upon the constitutional question?
Senator CHAFES. Well, Mr. Keuch, as you noted, is going to testify
this morning.
Senator METZENBAUns. He does not address those cases.
Senator CHAFES. And I would also recommend that the committee
look at the testimony of Mr. Ken Bass, from the Justice Department
on July 29, 1980, before the Intelligence Committee.
Senator METZENBAUM. We have done that.
Senator CHAFEE. Mr. Chairman, you and I both know that there is
not an act we pass in this Congress that somebody cannot say that there
is a possibility of there being a flaw in it. And I cannot say to you that
this is guaranteed to have no constitutional problems; I cannot do
that. But all we have is what the Justice Department has told us, what
they will testify to, and the series of steps of proof that are required in
here, which are far stiffer than in the House bill, in my judgment.
And then, Mr. Chairman, I would commend to you the report that
came with this bill, on page 15 of the report, where there is a detailed
discussion of the constitutionality of the bill.
Senator METZENBAum. Well, that is not a very detailed legal anal-
ysis, and I am not sure that we are going to look to our committee
staffs for constitutional analyses of these kinds.
Now, I do want you to know that Senator Kennedy received a
telegram, dated September 2, which reads as follows :
We believe that Section 501(c) of H.R. 5615 and S. 2216, which would punish
disclosure of the identity of covert CIA and FBI agents derived solely from
unclassified information, violates the First Amendment and urge that it be
deleted as recommended by the House Judiciary Subcommittee on Civil and
Constitutional Rights.
That telegram is signed by 10 or 11 professors from Harvard, 1
from UCLA, 2 from Yale, and 1 from the University of Texas Law
School. I will include that in the record.
At the same time, Senator Kennedy also received a letter in support
of the measure as presently drafted, from Robert Bork, a professor
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of law at Yale Law School, and that, too, will be included in the
record.
Senator CnAFEE. Mr. Chairman, that letter from Mr. Bork sup-
ports-does not say it is unconstitutional.
Senator METZENBAUM. Oh, rio; 1 am sorry. I meant to make it clear,
that that letter supports and says that he believes that it is constitu-
tional. I want to put in the record those that support as well as those
that do not.
[The letter and the telegram referred to above follow:]
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The Honorable Peter W. Rodino
Chairman
House Judiciary Committee
Room 2462
Rayburn House Office Building
Washington, D.C. 20515
Dear Congressman Rodino:
I am writing to you in support of the passage of
the Intelligence Identities Protection Act of 1980, and more
particularly, to address some of the Constitutional issues
which have arisen in the consideration of this bill.
I will not address the question of the need for
such legislation. The Deputy Director of the Central Intelli-
gence Agency and others from the Administration have testified
on this point before various Congressional committees. I will
merely reiterate my own view that such protection is needed
and that the record appears to demonstrate that agents' lives
have been placed in jeopardy and intelligence operations have
been adversely affected by unauthorized and unwarranted dis-
closures of agent identities.
I would like to address instead three issues relating
to the constitutionality of the various bills before Congress.
These proposals include H.R. 5615, S. 2216, and various versions
as amended in committee mark-up. I will concentrate on Section
501(c), the most discussed section. I am basing my analysis on
the House and Senate reports on these two Acts, dated August 1,
1980 and August 18, 1980, respectively. I have also reviewed
the statements of Director Carlucci before the Senate Committee
on Intelligence on June 26, the statement of Associate Deputy
Attorney General Robert Keuch before the Subcommittee on Civil
and Constitutional Rights of the Committee on the Judiciary,
House of Representatives on August 19, and the statement of
Frederick T. Hitz, Legislative Counsel of the CIA before the
same committee on the same date.
The first important step for legislation to take, if
it is to pass Constitutional scrutiny, is to narrow the defini-
tion of those persons who may be considered offenders under the
Act. Both the House and Senate bills do so, but through differ-
ent mechanisms. The House bill includes a so-called "dual intent
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standard" in 501(c), which says "whoever, in the course of
an effort to identify and expose covert agents with the in-
tent to impair or impede the foreign intelligence activities
of the United States, discloses, with the intent to impede
the foreign intelligence activities of the United States, to
any individual not authorized to receive classified informa-
tion, any information that identifies a covert agent
Such a dual intent standard would obviously place significant
burdens of proof on any prosecution. In doing so, it would
therefore narrow the possibilities of abuse and avoid prob-
lems of impermissible vagueness of definition of those who
are subject to its terms.
The Senate version of this provision, also Section
501(c), requires that "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 foreign intelligence activities of the United States,
discloses . . . As an alternative formulation, the imposi-
tion of a judicial or jury finding of a "pattern of activities"
imposes a separate but no less definable burden of proof upon
the prosecutor. It should be clear that, either in the bill
or the legislative history, the pattern of activities could
not itself be used to show that the person had "reason to be-
lieve that such activities would impair or impede the foreign
intelligence activities of the United States."
The Senate report, on page 15, recognizes that a
statute affecting speech or publication "must not extend over-
broadly." Furthermore, the report on page 18 indicates that
the harm the bill seeks to prevent is most likely to result
from disclosure of identities in the course of a pattern of
activities rather than a single isolated incident. The report
goes on to state "At the same time, it does not affect the
First Amendment rights of those who disclose the identities of
agents as an intregal part of another enterprise such as news
media reporting of intelligence failures or abuses, academic
studies of U.S. government policies and programs, or a private
organization's enforcement of its internal rules." (Page 18.)
Thus, the Senate report has addressed the issue of constitu-
tionality in terms of the scope of the coverage of the Act, and
concludes that such a provision would be constitutional. The
House version has an even narrower scope. Both versions seem
to me constitutional.
The second issue I would like to address is the type
of information which is covered by the Bill. It is quite clear
that these bills deal only with information identifying or
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serving to identify intelligence agents, as variously defined
in the bills. These bills do not cover the disclosure of all
classified information or, in fact, any of the other types of
intelligence information which ought to be protected.
On the other hand, these bills would not allow
the prosecution of those concerned with policy, political or
other more general questions. This fear has been raised, in
my view, without justification. Again, the principle of
specificity applies. To the extent that we are dealing with
a narrow, well-defined class of information, the constitution-
ality of protections given to that information should be more
certain.
In support I would refer to an earlier statement of
Harold Edgar and Benno Schmidt, Jr., professors of law of
Columbia, on January 25, 1979 before the Subcommittee on
Legislation of the Permanent Select Committee on Intelligence
of the United States, House of Representatives. On page 16 of
the statement, Edgar and Schmidt say "We believe this Congress
should continue to accord high priority to public debate. Only
very narrowly drawn categories of defense information of great
security significance, and in most cases, little import for
public debate, should be prohibited from public revelation. In-
formation about cryptographic techniques, intelligence gathering
operations, the design of secret and vital weapons systems,
nuclear armaments, and perhaps other narrow and concrete cate-
gories of defense or intelligence information are appropriate
subjects, in our opinion, for prohibitions on peacetime press
disclosures." They go on to say that a justification defense,
based on the importance of public debate, will be available
under the First Amendment to those who are accused of unauthor-
ized disclosure under any such provision.
I conclude, therefore, that the category of protected
information is narrowly drawn, that it cannot be used for inves-
tigations into policy or political criticism, and that adequate
defenses exist under the First Amendment to the Constitution to
allow the exploration of these issues in specific cases.
The third issue I would like to address is the ques-
tion of the liability, if any, of those who republish or other-
wise distribute information after the initial disclosure. Given
the fact that both the House and Senate versions require some
intent findings, it is not possible to argue that the isolated,
or single disclosure, on the part of a say, reputable publica-
tion, would result in criminal liability. Indeed, the bills are
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drafted in such a way to allow this kind of reporting in
the ordinary course of review of intelligence operations,
foreign policy, and national defense. If, on the other
hand, a reporter or newspaper were to act in a way which
supplied the required second intent (House bill) or pattern
of activities (Senate bill) then perhaps the conduct should
be punishable. It should be clear that the isolated, un-
knowing or unwitting release of an agent's identity without
the requisite intent would under no circumstances be
punishable.
In this letter I have addressed the Constitution-
ality of the most troublesome provision of the two agent
identities bills, Section 501(c). I conclude that the class
of individuals liable under either bill is sufficiently nar-
row to survive a Constitutional challenge. In addition, the
type of information which is protected is of the type which
deserves, and in fact requires, statutory protection, based
on a significant Congressional finding of need. Finally, I
believe that the scope of the bills, limiting the application
to republication or isolated incidents, is consistent with
the Constitutional mandates of the First Amendment in this
area. Thus, I urge the Congress to give serious consideration
to the inclusion of Section 501(c) in a reported bill.
Sincerely,
Robert `~orlf
Professor of Law
Yale University
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VERN COUNTRYMAN
BERNARD WDLFMAN
MORTON J HOROWITZ
ALAN DERSHCWITZ
FRANK MICHELMAN
LANCE LIEBMAN
ELIZABETH BARTHOLET
RICHARD PARKER
CHARLES NESSON
LAURENC.TRIM
ALL:FRQN, HARVARD SCHOOL
CAR.Oi.E ' GOLDBERG-AMBROSE UCLA LAW SCHOOL
OM4SA EMERSON
STEVEN DUKE BOTH FROM YALE L4W SCHOOL
- "17-A zyOTT ROME JR U OF TEXAS LAW SCHOOL
c
16,108 T
HAILGRAH SERVICE CENTER
MIDDLETOWN, VA. 22645
40515775246 09/02/80 ICS IPMMTZZ CSP WSHB
6174954614 MGM TDMT CAMBRIDGE MA 113 09-02 040OP ES'
SENATOR EDWARD M KENNEDY
US CONGRESS SENATE OFFICE BLCG
WASHINGTON DC 20510
WE BELIEVE THAT SECTION 501 IC) OF M.R. 5615 AND 5.2216, WHICH WOULD
PUNISH DISCLOSURE OF THE IDENTITY OF COVERT CIA AND FBI AGENTS
DERIVED SOLELY FROM UNCLASSIFIED INFORMATION, VIOLATES THE FIRST
AMENDMENT AND URGE THAT IT BE DELETED AS RECOMMENDED BY THE HOUSE
JUDICIARY SUBCOMMITTEE ON CIVIL AND CONSTITUTIONAL RIGHTS.
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Senator CHAFES. And one of the things that bothered me about that
telegram from those professors at Yale, Stanford, and so forth, is
that they refer to the House language, and then the second part,
they-could you read that again, Mr. Chairman?
Senator METZENBAUM. "We believe that section 501 (c) of H.R.
5615 and S. 2216"-do you want me to read the whole thing?
Senator CHAFEE. No. I just wonder if they have examined the new
language of 2216 which, as I pointed out, is different from the House
language, and, we think, substantially different.
Senator METZENBAUM. I cannot vouch for the fact, but we have
been told that they have. The letter is dated September 2. I would as-
sume that they have. But, anyhow, I did ask you a question as to
whether you would be interested in joining with either Senator Ken-
nedy or myself in asking the Department of Justice for their opinion
on the constitutionality of the language.
Senator CHAFEE. Mr. Chairman, I wonder if we could hold on that
until you have Mr. Keuch here, and see if the background that he
gives you satisfies your concerns on that particular issue, that is, what
the Justice Department says. It has been my opinion that we had met
that standard and met that request in the hearings before the Intelli-
gence Committee and what Mr. Keuch himself says.
Can we hold on that, Mr. Chairman?
Senator METZENBAUM. Certainly. We will come back to it.
Now, Senator, section 501 (c) penalizes someone who, in the course
of a pattern of activities intended to identify and expose covert
agents and with reason to believe that such activities would impair
or impede the foreign intelligence activities of the United States,
discloses information about a covert agent's identity.
Now, frankly, some of these phrases and terms are, to me, at least,
somewhat ambiguous and general. For example, does a pattern of
activities include a single investigation like Watergate that involves
a series of inquiries.
Senator CHAFES. Weill, Mr. Chairman, that pattern of activities is
defined on page 17, and it says there, in line 19, "the term, `pattern of
activities', requires a series of acts with a common purpose or objec-
tive." And what we are driving at there is that the journalist who
publicizes a series of names of agents once or twice, it seems to me is
not involved in a pattern of activities. A pattern of activities is a
series.
Now, all law terms, every statute we ever draw, has difficulties. But
"pattern of activities" is certainly a series of acts, not one act. That
was the more than one bite of the apple that I discussed earlier.
Senator METZENBAUM. Do there have to be multiple disclosures?
Senator CHAFEE. Do you mean
Senator METZENBAUM. Do there have to be a series of disclosures or
just one disclosure? Could there be just one disclosure?
Senator CHAFEE. Well, one disclosure following a series of activities
is prosecutable, yes. But the first disclosure would not be, because you
have not established a pattern. In other words
Senator METZENBAUM. Now, let us see. You say a single disclosure
could be, but it would have to be a single disclosure after a number of
previous disclosures?
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Senator CHAFES. That is right. In other words, the first disclosure,
writing for Newsweek magazine or the Washington Post, some re-
porter says, "Mr. So-and-So and Mr. So-and-So are CIA agents in
Jamaica," or wherever it might be. Now that is not a pattern of activi-
ties, because in the definition, we talk of a series of acts.
But let us say he does this once, and he does it twice, and on the
third one, he does it, and he can be prosecuted for that third one and
only that third one. That is, you do not have to prove the others, you
do not have to prove a fourth.
Senator METZENBAUM. Well, Mr. Keuch in his testimony says :
The committee has gone far to meet this concern by providing that a single
act of disclosure would be covered only if it is part of an ongoing effort to destroy
intelligence covers or, to use the amended bill's exact language, "only if it occurs
during a pattern of activities intended to identify and expose covert agents."
So that-
Senator CHAFEE. I do not have any quarrel with that definition.
We have got to prove a pattern of activities, a series of activities that
the publisher or the writer is engaged in.
Senator METZENBAUM. What about a single disclosure that King
Hussein was an agent. Would that be a punishable offense? Let us
assume that Newsweek-or anybody else, of course-but assume that
there had been a continuing effort to learn the facts, and then there
is a disclosure to that effect in Newsweek. Is the reporter who does
that punishable?
Senator CHAFES. No, no. That would not qualify as a pattern of
activities. Now, you are saying that he spent 2 years digging on this
information ?
Senator METZENBAUM. Right.
Senator CHAFEE. No; I think it would have to be a pattern of activi-
ties intended to identify and expose covert agents.
Senator METZENBAUM. But if a Newsweek reporter spent 2 years
on Hussein, and 2 years on somebody else, and 2 years on somebody
else, two of whom turn out to be CIA agents and the third one of
which does not turn out to be a CIA agent, is that a pattern of activi-
ties that would make it possible for him to be subject to criminal
prosecution?
Senator CHAFEE. In your illustration, you had him doing several
agents.
Senator METZENBAUM. I had him doing it over a period of 6 years,
spends 2 years on Hussein, 2 years on the second one, and he finds
that the man is not a CIA agent, and. the third one. It is now 4 years
later, but all this time he has been involved in this kind of inquiry
for a legitimate news magazine, such as Newsweek, and 4 years later,
he does a big cover story on Hussein. Now, is he subject to
prosecution?
Senator CHAFEE. He has done somebody else prior to Hussein, and
his pattern of activities is intended to expose these covert agents.
Senator METZENBAUM. No; his pattern of activities is intended to
be an investigative reporter and to do a job for his newspaper, and
when he found that somebody he was investigating was not a covert
agent, he did not run any story, and he wasted 2 years of his life.
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Senator CHAFEE. Well, if he is engaged in this business of trying
to seek out and expose covert agents, yes, I do not see why he should
not be.
Senator METZENBAUM. All right. Now let us add a factor. After 2
years of investigating he exposes a covert agent; during the next 2
years, he does something else, he is working on some other stories
having to do with x, y, or z, or maybe a number of different stories;
then he comes back and spends 2 years investigating on another covert
agent, and then writes a story. Now, he has had two exposures
Senator CHAFEE. No ; it seems to me, Mr. Chairman
Senator METZENsAUM. I guess what I am trying to say is there
are difficulties, aren't there, Senator?
Senator CHAFEE. There are difficulties in any piece of legislation
that we pass. But, Mr. Chairman, we can sit here, as you know, and
have difficulty after difficulty, but we have got to look on the other
side of the coin. And as I said in my concluding sentence, the easiest
thing that we can do is to do nothing. And we had testimony before,
I asked one of the witnesses before us, "What would you do? You
are oppsed to this legislation. What would you do?" What are we
cooing to do about the agents that we send abroad-we, you, I, other
Members of this Congress-we send them abroad on a mission for
the United States, and we say that, "We are sorry, we cannot do
anything about your life being in danger," and we throw up our hands.
To me, that is not the answer.
Senator METZENBAUM. Senator, I am not opposed to the legislation.
Senator CHAFES. No; I appreciate you are not.
Senator METZENSAUM. And I am not making this personal in any
way. But you understand that the constitutional protections are always
the ones that come under the most fire when there is a kind of heinous
activity such as this. I will never forget the Kefauver investigations,
when criminal or alleged criminal after alleged criminal was coming
before the committee and taking the fifth amendment. And at that
moment, if you had had a public referendum, by a 90-to-10 vote, you
could have eliminated the fifth amendment from the Constitution. And
what we are really saying here is we know we need a piece of legisla-
tion. We know that the killing of Welch and the situation in Jamaica
was wrong. But we also know that we are taking a major new step to
make it into a criminal act to penalize someone for publishing informa-
tion that is already in the public domain. That is the most serious part
of this bill. It is not a question of saying anybody is opposed to the bill.
I think you can get 100 votes for the bill, under any and all circum-
stances.
It is good that a person such as yourself is the author of it, because
you are beyond reproach as far as being one who is indifferent to con-
stitutional concerns-but there are others of us who also share those
constitutional concerns, and Senator Biden stated it well-others, I
am sure, share those concerns. I am sure we will hear other testimony
to that effect this morning. And what we are trying to do is to justify
that portion of the legislation-justify, or find that it is unjustifiable-
that portion of the legislation that has to do with the use of unclassified
information, whether to make it criminal; and also whether or not some
of the language needs to be tightened up. Let me ask you a few ques-
tions along that line.
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Senator CHAFES. Well, Mr. Chairman, just let me say I think you
have made a very eloquent statement of the problem that confronts
us. And as you stated, I am keenly aware of that problem, and I have
been involved in this, as you mentioned, for a good number of years in
the area of constitutional problems and protecting constitutional rights
of individuals, both when I was in State government and here. And
it is my belief,,Mr. Chairman, that by the whole series of individual
steps that must be proven, that we have set up in section 501 (c), and
which is considerably different from the (c) of the House, I believe we
have treaded this narrow and admittedly very difficult line between the
protection of the rights of individuals and preserving the safety of
those we send abroad on missions for the United States. I believe we
have met that test. I think you will find the witnesses from the Govern-
ment will agree with that, that is, Mr. Keuch.
Senator METZENBAUM. Well, what this committee is addressing it-
self to, as you well know, is not the question of how do we defeat the
legislation, but is there some manner in which we can improve it, hope-
fully, improve it jointly with you, and that is the thrust of these hear-
ings.
Senator CHAFEE. Well, we welcome your attention to this, Mr.
Chairman, because you have been deeply involved in these matters and
concerned over a number of years. Also, you are concerned about the
protection of our individuals. So I know that we are in good hands
with your considering this legislation. I appreciate the thoughtful
time you are giving to it.
Senator METZENBAUM. Thank you.
Let me ask you a few more questions and then we will go on to Con-
gressman Aspin, who has been waiting very patiently.
A reporter writes a series of investigative articles about CIA in-
volvement in American universities. Does he fall within the bill's
language, "a pattern of activities intended to identify and expose co-
vert agents?"
Senator CHAFEE. No, clearly not. He can write all he wants about the
CIA and the activities on campuses or whatever they might be.
Senator METZENBAUM. But you say in your testimony at page 7, "A
person is presumed to intend the usual consequences of his or her ac-
tions." Now, doesn't he intend to expose, and if that is the case, why
doesn't the language apply here?
Senator CHAFES. The term, "covert agent," is defined, Mr. Chair-
man, on page 16. The covert agent has to be serving outside the United
States, or has within the last 5 years served outside the United States.
So this is primarily directed against exposure of agents of the CIA
who are serving abroad.
'Senator METZENBAUM. What if American universities have offices
abroad? Some of our universities do have teaching facilities abroad.
What about those activities, where you have investigation of CIA ac-
tivities in connection with American universities, at their locations
outside the country?
Senator CHAFES. And the individual meets these requirements, is a
CIA agent who is serving abroad, and the name is disclosed?
Senator METZENBAUM. Yes.
Senator CHAFES. Well, yes, if he meets these qualifications, certainly.
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Senator METZENBAUM. But the reporter is doing it not to expose the
individual, but to determine whether or not the CIA has infiltrated
the American universities. That is really the main thrust of his article,
and the only way he can make the point in his article is by naming
names. But he really does not care to expose the individuals. He has no
interest in that. He is more interested in exposing the universities.
Senator CHAFEE. Well, if he meets this pattern, and if he names
names, and he is serving abroad, yes; if it is part of a pattern. If he
does it once, no. If he does it in accordance with a pattern, and the
intent is to identify and expose the agents, that has got to be proved
too, rather than in your illustration, he was exposing the practice-he
is not concerned about the individual, he is concerned about the prac-
tice-so there is little need for him to name the names, but if he names
the names in one story, and that is it, no, he is not subject to prosecu-
tion. If it is a whole pattern of activities, and the objective is to get
the agent, yes, and I think he well should be.
Senator METZENBAUM. All right. What if the university itself is
making an investigation of its own employees, and in doing so, publicly
announces that it is discharging a, b, c, d, and f, because they have
determined that they have been on the CIA payroll. The university has
conducted a series of investigations, they have gone through a 2-year
study to determine whether or not the CIA has infiltrated their univer-
sity, and now they find out, and they indicate that they are letting go
of five members of their staff. Is that a violation? Does the university
become subject to prosecution for having done that?
Senator CHAFEE. This is in one investigation, they go forward-and
first of all, as you know, there is a policy against the CIA working in
universities, but set that aside, and presume they changed the policy-
no, not in that instance. No.
Senator METZENBAUM. They would not be subject to prosecution?
Senator CHAFES. No.
Senator METZENBAUM. I am not sure that I would agree with the
reading of the language that way, but I accept that as your testimony.
Senator CHAFEE. The report mentions that, Mr. Chairman, at the
bottom of page 22.
Senator METZENBAUM. I know that it does, and that is the reason I
asked the question, because frankly, it does not follow logically, as I
see it, because the university has engaged in a pattern of activities, and
they have exposed the names, and they have intended to expose them.
Senator CHAFEE. Yes; but why are they doing this, Mr. Chairman?
I think it is clear that their intent is not to expose agents. Their intent
is not to have agents working for them, which is quite a different thing.
Senator METZENBAUM. Well, if you look at your definition of
"intent," the intent is presumed to include the logical consequences of
the activities; as, for example, where the university is making such an
investigation, knowing that when they find them, they are going to
fire them. It just seems to me that although the report does say that
there is an exemption or that such activity, it would not be prose-
cutable, the legislative intent as indicated by the report is strongly
rebutted by the specific language of the legislation.
Senator CHAFEE. On that we disagree.
Senator METZENBAUM. Section 501 (c) uses the phrase, "reason to be-
lieve that such activities would impair." Here, the Government is not
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required to prove much of anything about the defendant's actual state
of mind. It is enough if a jury later finds he should have believed,
that he had reason to believe, even if he did not actually believe.
Now, wouldn't you agree that that becomes a very loose kind of
term under these circumstances?
Senator CHAFES. No; I do not think so. I think that you have got
a "prudent man" standard there, a reasonable man. And frankly, in
those first two lines is the difference between this bill and the House
bill. In this bill you have an objective standard.
Senator METZENBAUM. Doesn't this make it easier than the House
bill, as far as prosecution is concerned?
Senator CHAFES. No; I do not think so, Mr. Chairman, because
here we have to prove this pattern of activities, which is intended to
identify and expose covert agents, and with the reason to believe that
a normal man would believe that if you do this, the activities would
impair and impede the foreign intelligence activities of the United
States. I think that is a pretty objective standard.
Senator METZENBAUM. Would that mean, though, that even if he
does not intend to harm, but he has reason to believe that it might, then
he may be prosecuted?
Senator CHAFES. That is right. He cannot give as a defense that
his intent really was to improve the intelligence activities of the United
States. And frankly, that is the reason we have this difference in there.
We do not get into the intent of what is in the person's mind while
they are going about these activities. If you have this pattern of ac-
tivities to expose covert agents, and you meet the other four require-
ments-know that the information disclosed would identify the in-
dividual; know that the U.S. Government is taking affirmative meas-
ures to conceal it-yes, you are prosecutable. That is what it is all
about.
Senator METZENBAUM. Even if he does not intend to harm? What
if he feels he is doing the right thing, he is helping the Government?
Senator CHAFES. That is absolutely what the publishers of Covert
Action Information Bulletin say :
We are naming these names because we think this is a vile practice, and that
is our defense. We have a state of mind that we are out to improve the intelli-
gence activities of the United States.
That is what they say. And what are we going to do about that, as
they list name after name of alleged agents, publish books. So we do
not want to get into a state of trying to prove the intent of the in-
dividual as far as to improve or to impede. We want as objective a
standard as possible in there, and I think that is what we have got
in this bill as opposed to the House bill.
Senator METZENBAUM. Let me ask you another question. If this
legislation is not intended to chill investigations of improper activ-
ities, shouldn't the defendant be allowed the defense that the dis-
closed agent was involved in illegal or improper activities? Why
should he be denied that defense?
Senator CHAFEE. Well, if he believes seriously,'an agent, and pub-
lishes an article to that effect, that would not constitute a pattern of
activities. But if he is going around and identifying agent after agent
and believes his defense is that they have been involved in illegal
activities, then, right here in this act, he has a recourse to bring this
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information to those involved, those who have the oversight of the
intelligence community; namely, your fellow Senators and Repre-
sentatives who are members of the Intelligence Committees. See page
13, section 502(c).
Senator METZENBATTM. I am not sure I followed why you said that
he. should be denied the defense, even though the prima facie case is
made, and a solid case is made as relates to the prosecutorial aspects
of the matter. Why shouldn't the defendant be allowed to show that
the agent was involved in illegal or improper activities? Why
shouldn't he be permitted to have that taken into consideration?
Senator CIIAFEE. Well, because the damage has been done, Mr.
Chairman. He exposes an agent-in the course of a pattern of activ-
ities, he exposes a, b, c, d, believing in his own mind that these agents
are guilty of unlawful activity, so he is going to expose them. The
damage is done then.
Senator METZENBAuM. The damage is done, and in any personal
injury case, you prove that the defendant was negligent, but the
defendant is allowed to prove as an affirmative defense that there was
contributory negligence. Here, you prove that he has violated the
aspects of the law that you have included, but as an affirmative
defense, or at least in mitigation, he wants to offer evidence that the
agent was involved in criminal, illegal, or improper activities. Why
should we deny him that right?
Senator CHAFEE. Well, because we have provided other routes for
that, Mr. Chairman, other avenues, in that, if he believes this, he can
go to the authorities who are responsible.
But meanwhile, if you take the proposition you have made, the
disclosures are made of the agents, and a series of disclosures, to
meet this pattern of activity.
Senator METZENBAUM. Senator, I :am not questioning that he can go
other routes, although I am not sure he would get very far in going
other routes. If he went to somebody in the CIA and said, "Say, do
you know that you have an agent over there in x country, and he is
involved in illegal or improper activities," I do not think he would
get by the receptionist.
Senator CHAFES. No, no, but, Mr. Chairman-(c) says to the very
committees of this Congress. Now, if they are not doing their job, then
we ought to make some changes.
Senator METZENBAUM. Is that 502(c) ?
Senator CHAFEE. On page 13.
It shall not be an offense under section 501 to transmit information described
in such section directly to the Select Committee on Intelligence or the Permanent
Select Committee on Intelligence, the House of Representatives.
Now, if they are not performing, then let us make some changes
around here.
Senator METZENBAUM. Senator, I think you and I would both agree
that somebody picking up the telephone or coming in and seeing the
Select Committee on Intelligence is not the same as an affirmative
defense. It may not be taken into consideration. It may be considered
as totally irrelevant. But it seems to me that a defendant should not be
precluded from asserting the fact that the CIA agent who is exposed
was engaged in illegal or improper activities. And then, it may or may
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not be taken into consideration by either the jury or the court. But I
do not know why there is a denial of that right.
Senator CHAFEE. Well, let me just give you an example, Mr. Chair-
man, whatever "illegal activities" means. You have an agent in Athens.
And the agent is doing a series of activities. Let us say one of those
activities is illegal or improper. Now, is that a defense that in the total
course of his duties, he does something improper that therefore we
shall have the exposure of the identification of this agent. Now, I do
not think we want that.
Senator METZENBAIIM. I will not press that point further. I am not
sure we are in agreement on it, but if we--
Senator CHAFEE. Well, I think the point I am making, Mr. Chair-
man, is what is the improper activity that justifies the disclosure of
the names of a series of agents. Is he driving without his driver's
license, or is he tapping somebody's phone he should not be tapping?
Senator METZENBAUM. Let me ask you, would you find it a detriment
to the bill to at least permit the defendant to raise that issue, not as
a total defense, but at least in mitigation? Would you find that it in
any way would lessen the validity and the strength of the legislation
if the defendant were permitted to offer that evidence, not as a total
defense, but conceivably in mitigation? Let us assume that he wants
to prove that a particular CIA agent was involved in a murder and
had been involved in causing various persons to lose their lives. Would
it be inappropriate for him to offer that kind of evidence in defense
of his disclosure? Would it be improper to reveal that?
Senator CHAFES. You know, each of these casese are difficult. What
is the illegal activity? If he wants to write one article-I think we
have agreed on that-agent so-and-so, and exposes it in the course of
a story, that would not fit a pattern of activity, so he is not subject to
prosecution anyway. But if he is going to write a whole series of ex-
posures, as it were, each of them in which he says he has some kind of
a defense, I just feel that the whole purpose of the act is thus going to
be vitiated if we let him make the disclosures and then, subsequently,
he comes up with some kind of a defense in mitigation of what he has
done.
Senator METZENBAUM. Let us assume a magazine article writer wants
to write an article, "Were These CIA Agents Involved in Killing
?" and then you have a series of pictures of certain international
leaders, the names of which I will not mention at the moment. We have
all heard stories about the CIA being involved in the loss of life of
certain international leaders.
I am not certain that some of them, if the allegations were true,
were acting in my nation's best interest and your nation's best interest.
Now, let us assume that he writes a series of articles and proves that
x was involved in the murder of y, a was involved in the murder of b,
and r was involved in the murder of 8, and that they had been planned
and conceived and schemed and plotted. Maybe the agent actually did
not even serve our nation's best interest. Maybe some guy who was the
head of the CIA at that time thought he did, or maybe he was off
on his own gambit. Maybe he was just a leader in that particular com-
pany, a local station.
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Now, my question to you is, would the writer of that article, who
wrote maybe one or two or three other articles, who was involved in a
series of investigations
Senator CHAFEE. He met the pattern of activities standard.
Senator METZENBAUM. Yes. Now, frankly, Senator, I am not sure
that he would not be serving our nation's interest best if he disclosed
based upon good and conclusive evidence that these certain people
had been murdered as a consequence of CIA plans. Would that be
wrong? Would that violate the law?
Senator CHAFEE. Well, I think that he might well have a better
defense under this that his intention is not to identify and expose covert
agents, but his intention is to expose illegal actions. I think he would
have a defense within the act right there, under the illustration that
you gave.
And furthermore, I am not even sure he has got to reveal the names.
I mean, the story would have plenty of sensation to it, "CIA Murders
Allende," or whoever it is.
Senator METZENBAUM. Not without the names. It would not sell.
Senator CHAFEE. It would not sell, you do not think? All right,
so he puts in the names.
Senator METZENBAUM. I do not think you could get any of the
magazines to carry the story unless you named the players. And if you
name the players, my guess is you might be able to base at least some
portions of that kind of a story, upon rumor. Now, I just think that
that would serve our national interest.
Senator CHAFES. Well, first of all, you are better perhaps at knowing
what sells and what will not sell
Senator METZENBAUM. I would not say that. You probably would not
be here if you did not know what sold, in some ways.
Senator CHAFEE. But frankly, I do not think it is necessary to have
the agent. But even if the name of the agent were involved, I think
he is protected under this act in that the pattern of activity is not
intended to expose covert agents but is to expose wrongdoings of the
CIA. And I think he has got a pretty good defense right here under
this (c) as we have presently got it.
Senator METZENBAUM. Thank you, Senator, very much. I am looking
at the time, and I do not know how I am ever going to finish this
morning.
Senator CHAFEE. Thank you.
[The prepared statement of Senator Chafee follows:]
PREPARED STATEMENT OF SENATOR CHAFEE
Mr. Chairman, I am delighted to appear here today to comment on the In-
telligence Identities Protection Act (S. 2216) which was recently reported from
the Senate Intelligence Committee by a vote of 13/1, and which has now been
referred to your Committee for consideration.
From the time George Washington dispatched Benjamin Franklin to France
in 1776, the government of the United States has sent American citizens abroad
on difficult and dangerous missions in pursuit of the goals of our nation. In
1947, this activity was institutionalized by President Truman with the formation
of the Central Intelligence Agency, and a permanent cadre of covert agents was
created. Covert action and the assignment of Americans abroad-our fellow
citizens-to carry out such action has had and now has the support of every
administration since President Truman and every Congress, including this one,
to which each of us belongs,
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In the last five years, certain other Americans have made a profession of fer-
reting out the identities and publishing the names of these agents, with the re-
sult that their lives, and the lives of their families and friends, are placed in
jeopardy. Richard S. Welch of Rhode Island was murdered as a result of this
"naming names". The lives of others have been threatened. Yet, there is no law on
the books today under which this activity of "naming names" can be prevented.
This is an intolerable situation. As legislators, I believe that we have a respon-
sibility to draft a bill which places criminal penalties on those who are in the
business of exposing our agents, and, which, at the same time, does not threaten
the critic of intelligence policy or the journalist who might reveal the name of an
agent in the course of a news report.
In my judgment, and in the judgment of the majority of my colleagues on the
Senate Intelligence Committee, the Intelligence Identities Protection Act of 1980
meets this dual standard. However, because the question has been raised as to
whether this bill chills First Amendment rights, I would like to focus specifically
on this issue as I address your Committee here today.
The section of the First Amendment to the Constitution that pertains to our
discussion states that "Congress shall make no law.... Abridging the freedom
of speech, or of the press . . ." The first point that I wish to make with regard to
this amendment is that the provisions of the Bill of Rights cannot be applied with
absolute literalness, but are subject to exceptions. It has long been recognized
that the free speech clause of the Constitution cannot wipe out common law re-
garding, for example, obscenity, profanity, and the defamation of individuals, for
example. This point was reiterated by Justice Oliver Wendell Holmes in the
Classic Espionage Act decisions in 1919 when he stated that :
"The First Amendment ... obviously was not intended to give immunity for
every possible use of language . The most stringent protection of free speech
would not protect a man in falsely shouting fire in a theater and causing a
panic."
A second, and equally important point, is that if unlimited speech interferes
with the legitimate purpose of government, there must be some point at which
the government can step in. My uncle, Zechariah Chafee, who was the leading
defender of free speech during his thirty-seven years at the Harvard Law
School, wrote in his book titled Free Speech in the United States that :
"The true boundary line of the First Amendment can be fixed only when Con-
gress and the courts realize that the principle on which speech is classified as
lawful or unlawful involves the balancing against each other of two very im-
portant social interests, in public safety and in the search for truth. Every
reasonable attempt should be made to maintain both interests unimpaired, and
the great interest in free speech should be sacrificed only when the interest in
public safety is really imperiled, and not, as most men believe, when it is barely
conceivable that it may be slightly affected. In war time, therefore, speech
should be unrestricted by the censorship or by punishment, unless it is clearly
liable to cause direct and dangerous interference with the conduct of the war.
Thus, our problem of locating the boundary line of free speech is solved. It is
fixed close to the point where words will give rise to unlawful acts." (Chafee,
Free Speech in the United States, p. 85.)
It is clear, Mr. Chairman, that the activity of "naming names" has given rise
to unlawful acts, and that it has endangered the safety of American citizens
serving abroad. I have already mentioned the murder of Richard S. Welch in
Greece. I am sure all of you also remember the recent series of assassination
attempts in Kingston, Jamaica, following Louis Wolf's publication of the names
of 15 alleged CIA officers there last month. The Director and Deputy Director
of the CIA have testified publicly and in closed session before the Senate In-
telligence Committee on a number of occasions regarding this activity. It is
clear that the safety and the missions of those named have been placed in
jeopardy by "naming names".
What is not so clear, is where "naming names" contributes to what my uncle
has characterized as the important social interest of "the search for truth".
For example, it is difficult to see how the knowledge that a particular individual
serving in an Embassy abroad is paid by CIA rather than the State Department
materially contributes to our search for the truth.
In this regard, Mr. Chairman, I think that it is essential to point out that this
bill would not prevent Mr. Agee from publishing the articles contained in his pub-
lications, obnoxious though they be. This bill would only restrain his publication
of the names of persons he claims are covert agents. By the same token, there is
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nothing in this bill which would prevent Mr. Louis Wolf from continuing to
publish the Covert Action Information Bulletin which does contain articles pur-
ported to be based on "research" into U.S. intelligence operations at home and
abroad. The only impact of this legislation would be on the section of the Bulle-
tin titled "Naming Names". In fact, there is nothing in this law that would pre-
vent Wolf from giving anti-CIA or anti-American speeches in Jamaica as long as
the speeches do not contain the names of alleged CIA agents.
Mr. Chairman, I hope that this brief review of Constitutional history will
show that the First Amendment does not provide absolute protection for all
speech, and that the government can, in certain circumstances, intervene in the
exercise of free speech in the interest of public safety, without jeopardizing the
search for truth. As Attorney General Civiletti stated earlier this year on this
subject, "our proper concern for individual liberties must be balanced with a
concern for the safety of those who serve the nation in difficult times and under
dangerous conditions". It goes without saying that these important constitutional
considerations were very much in our mind when my colleagues and I worked up
the final draft of the Intelligence Identities Protection Act. We are not challeng-
ing the Constitution. We are working with it. In my judgment, we have worked
well within its limits. We have successfully followed what my uncle called the
"boundary line of free speech".
In turning now to the specific provisions of our bill, I would like to make sev-
eral observations which I hope will show that, from a practical as well as a
Constitution standpoint, this bill is the best solution to the legislative problem
which we face.
The Senate Intelligence Committee has held a number of hearings on intelli-
gence identities protection legislation. In particular, we have focused on the pro-
visions of S. 2216 which was originally introduced last January, in other words,
well before. While most witnesses expressed support for what are now Sections
501(a) and 501(b) of our current bill, many witnesses, including the Justice De-
partment, raised questions on the section of the bill which made criminal the
disclosure of intelligence identities by anyone who acted "with the intent to impair
or impede the foreign intelligence or counter-intelligence activities of the United
States.. ."
The Justice Department and others felt that this "intent standard" was objec-
tionable because it might lead to a prosecution which would turn on the political
motivations of the accused. For example, the writer might defend his disclosures
on the grounds that his intent was to improve, not impede, the foreign Intelli-
gence activities of the United States. In order to avoid this problem, I offered an
amendment to the original version of S. 2216 which, in Paragraph 501(c), adopts
a standard of prosecution based on the "pattern of activities" rather than the
"intent" of the discloser. This amendment, which was supported by the Justice
Department and adopted by the Senate Intelligence Committee, provides that :
" (c) Whoever, in the course of a pattern of activities intended to identify and
expose covert agents and with reason to believe that such activities would impair
or impede the foreign intelligence activities of the United States, discloses any
information that identifies an individual as a covert agent to any individual not
authorized to receive classified Information, knowing that the information dis-
closed so Identifies such individual and that the United States is taking affirma-
tive 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 section is very carefully drawn because a person must disclose informa-
tion Identifying a covert agent in the course of a pattern of activities which are
intended to Identify and expose covert agents. We have carefully differentiated
between the journalist who may reveal the name of an agent in a news article
and the person who has made it his purpose and business to reveal the names
of agents, and has engaged in a pattern of activities intended to do so. Clearly,
the legitimate journalist would not be engaged In such a pattern of activities. I
should note that the "intent" in this case is what is known as an "objective"
Intent-that is, intent in which the person intends the logical consequences of his
act. It Is not dependent on his political beliefs, motivations or opnion. Thus, the
vehemence of his criticism of the CIA or the United States is not an issue.
There are other standards and protections here as well. First, In order to be
liable for prosecution, a person must act with reason to believe that his disclosure
would impair or impede the foreign intelligence activities of the United States.
Someone who revealed the names of all CIA agents operating in the Soviet Union
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would certainly have reason to believe that such disclosure would impair or
impede U.S. intelligence activities. On the other hand, a journalist who revealed
in a news story about the U-2 incident that Francis Gary Powers was an
American agent would have little reason to believe his disclosure would or could
further impair or impede U.S. intelligence operations. Nor, for that matter, would
he be engaged in the requisite "pattern of activities."
Second, in order to be liable, a person must know that the information dis-
closed so identifies the covert agent. A journalist who reported, for example, a
general statement that CIA officers serve undercover in U.S. embassies would not
be liable because that 'Information would not by itself identify a covert agent.
However, a person who identified a particular officer by position, personal descrip-
tion and gave his home address would clearly know that he was identifying such
an agent.
Finally, to be convicted of this crime, a person must know that the United States
is taking affirmative measures to conceal an individual agent's classified intelli-
gence relationship to the United States.
In summary, Mr. Chairman, we have drafted a bill designed to stop those
engaged in the business of "naming names" and we have carefully drafted it to
protect the legitimate rights of free speech of the journalist, however critical he
may be of the CIA, its activities or its policies. The Justice Department has not
only withdrawn its objection, but has actively supported this legislation because,
in the words of Deputy Attorney General Renfrew, "the formulation substan-
tially alleviates the Constitutional and practical concerns expressed by the Jus-
tice Department with regard to earlier versions of this bill.... (I ask that a
copy of Mr. Renfrew's letter be placed into the record with my remarks.)
There is one additional issue which I believe must be addressed before I con-
clude my remarks because there has been so much confusion surrounding it.
During the long public debate on this issue, and in the hearings before the Senate
Intelligence Committee, I have heard it suggested or implied that it should be
acceptable for people to disclose the names of covert agents if this information
derives from unclassified sources. The implication of this view is that there
exists somewhere in this government an official but unclassified list of covert
agents, and that those who have found this list should be free to publish the
names thereon.
Mr. Chairman, I have studied the matter of cover for covert agents within the
Senate Intelligence Committee, and have even held a series of detailed hearings
on this subject. Without going into specifics in open session, I can assure you that
there is no such list. What we have found are unclassified official or semi-official
documents which contain the names of covert agents in among the names of other
officials of the U.S. government. The covert agents are NOT identified. The very
purpose of these documents is to cover or to hide the true identity of the covert
agents named thereon, and in no case is an identification explicitly made.
However, to say that the government has never published an unclassified
list of covert agents as such does not mean that certain persons, employing basic
principles of counterespionage, and after considerable effort, cannot determine
identities of covert agents with some degree of accuracy.
It is the purpose of S. 2216 to punish the publication of names acquired
through these techniques regardless of whether the identification was made
with reference to classified or unclassified information. After all, it is not the
mechanism of identification which places people's lives in jeopardy and threatens
our intelligence capabilities. It is the actual publication of people's names as
covert agents that does so. It is the pattern of "naming names" that we want
primarily to prevent.
In closing, Mr. Chairman, I would like to clarify several misunderstandings
or misstatements that have crept into the debate with regard to this legislation.
-The purpose of this legislation is not to "get" any group of individuals, but
to criminalize a particular activity which jeopardizes the lives and missions
of American intelligence officers serving abroad ;
-The current version of the Intelligence Identities Protection Act of 1980
does not criminalize the "intent" of those who are "naming names", but the
pattern of activities in which they are engaged ;
-This bill is not a hasty response to recent events in Jamaica, but the product
of legislative efforts dating back to the 94th Congress in 1975 and this current
-This Act has not been drafted over the objections of the Justice Department
and the press, but actually reflects the concerns and incorporates the rec-
ommendations of these entities in its current form.
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Originally, Mr. Chairman, the Justice Department reports that over the past
five years more than 2,000 names of alleged CIA officers have been identified and
published 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 per-
nicious vendetta against the American intelligence community, and I urge you
and your colleagues on the Judiciary Committee to move expeditiously in re-
porting this bill out of Committee before more lives are jeopardized and more
damage is done.
And finally, Mr. Chairman, this is a key point I wish to leave with you.
The easiest role we might assume is to do nothing ; to brush aside the problem
because the solution is too difficult. We send fellow Americans abroad on dan-
gerous missions which are supported by us as Senators and by our Administra-
tion. We owe it to them to do our utmost to protect their lives as they go about
our business.
Thank you.
Senator METZENBAUM. Congressman Aspin, we are very happy to
have you here with us. You are a very distinguished member of the
House, have served our country very well in your congressional respon-
sibilities, and I consider it a privilege to have you testify before us
today.
Now, having made that very laudatory statement about what a good
Congressman you are, I would appreciate it if you would not be too
lengthy, because you know the pressures.
STATEMENT OF CONGRESSMAN LES ASPIN
Mr. AsPIN. Thank you, Senator.
Why don't I just talk from my statement, because I know you have a
lot of witnesses today, and we do not want to take up a lot of time.
Senator METZENBAUM. Your full statement will be placed in the
record following your oral testimony.
Mr. ASPIN. I am a member of the Select Committee on Intelligence
in the House, and we have been dealing with this legislation now both
in the Intelligence Committee and over in the House Judiciary Com-
mittee. My opinion of the legislation is one that, realistically speak-
ing, I guess, is in the minority so far as we have seen it work its way
through the House. I was very worried about this third section, section
(c) of the legislation, when we first took the matter up in the House
Intelligence Committee, but I seem to be the only one who was worried
at that time. The Judiciary Committee of the House looked at the
legislation, and there seemed to be more people who were worried
about section (c) there, but, still a minority. And the language that
has come out of the House Intelligence and Judiciary Committees is
very, very similar to the bill before you. It is slightly different in sec-
tion (c), but basically, it is essentially the same.
I think what we see, of course, Senator, is a great deal of agreement
about this legislation from the whole political spectrum. Everybody
that I know has been very unhappy with what is being published in
the "Covert Action Information Bulletin," thinks that information
that is being revealed and which puts people's lives in jeopardy is
reprehensible conduct, and, in general, there seems to be no problem
with a great deal of the bill, particularly sections 501 (a) and 501(b).
The problem comes, as you know from the hearings this morning,
with section 501(c), and that is the focal point of the problem.
Let me just make two points about this and then answer whatever
questions you have.
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The first point that I would like to make is in connection with the
series of questions that you were addressing to Senator Chafee just
a moment ago, which is whether that language in section 501(c) can
in fact be abused. My impression is that there is a danger that it can
be. All of us who have been dealing with this bill are, of course, people
who know what we are trying to accomplish and know what that
language is trying to do, and presumably, would not abuse the lan-
guage or abuse that provision. But the danger is that the language as
it is written seems to me to be potentially the kind of thing that can
be abused, and I am worried about several aspects of it.
The series of hurdles that Senator Chafee mentioned seem to me to
be not really very high hurdles to overcome. A pattern of activities
must be shown-that whoever is prosecuted must have conducted a
pattern of activities-but that seems to me to be imminently possible.
If you write a series of articles in a newspaper or magazine, that could
be a pattern of activities; that could impair or impede the foreign
intelligence activities of the United States. Yes. I mean, any investi-
gative piece of journalism would be trying to impair or impede at
least that foreign intelligence activity of the United States. So that,
I think, is provable.
Senator Chafee also mentioned requirements to show that a defend-
ant cited, "knowing that the information disclosed identifies" such an
individual, and that the United States is taking affirmative measures
to conceal such individual's classified intelligence relationship to the
United States. Everybody understands that the CIA is trying to con-
ceal individual classified intelligence relationships to the United States.
And it is very important, it seems to me, that this language refers to
disclosing any information that identifies an individual as a covert
agent.
In your dialog with Senator Chafee, he was mentioning the fact that
the article would have to name names. It would not have to name names
in order to be prosecuted under this law. The language of the statute
says,
Discloses any information that identifies an individual as a covert agent to
any individual not authorized to receive classified information.
In other words, you do not have to say his name. You have to give
enough information that that individual can be identified. Well, that
seems to me to be treading on a path that is very, very dangerous. And
what is likely to happen, or the danger of what could happen is that
this langauge could be abused, and you would end up prosecuting
somebody that those of us who are passing this language and voting on
this language had no intention to prosecute.
One other point : Senator Chafee mentioned-and we were talking
about-whether it is a defense if the writer points out that the activity
that he was trying to expose was illegal.
It shall not be a defense under section 501 to transmit information described
in such section directly to the Select Committee on Intelligence of the Senate
or the Permanent Select Committee on Intelligence of the House of Representa-
tives.
What the authors of this language seem to be saying is that if a
person sees an abuse or has information of an abuse taking place, then
the proper avenue to go is through the intelligence committees-in
other words, not to go public with the information, but rather, go to
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the intelligence committees themselves and have them, therefore, deal
with the abuse in a way in which you do not have to go public with
the information and do not have to make it public.
I think that is a good idea, and it is important that people do take
abuses that they perceive to the intelligence committees. But I would
hate to have a law written that that was the only way in which an
abuse can be made known to authorities.
Senator METZENBAUM. What do you think of that procedure,
realistically?
Mr. AsPIN. In a realistic manner, it is not a very good prevention
of abuses.
Senator METZENBAUM. A fellow walks in off the street and says that
he wants to discuss something, but he actually only sees a staff person
for the moment, and that person thinks he is not dressed right and that
he is flakey, and he does not want to pay any attention-or else, he
grabs you in the hallway, or Senator Bayh or Senator Biden, or some-
body else, Senator Huddleston, in the hallway. Is that very realistic
as being a way to make such a
Mr. ABPIN. No. Senator, I agree entirely with what you are saying
there. The problem on all of these is that it is a judgment call. The
staff is spread very thin. I am the chairman of the Subcommittee on
Oversight of the Intelligence Committee in the House. And we get
people coming in that door all the time with some strange tale about
abuse in this place and that place, and we have to deal with them. We
investigate a little bit in all of the cases and try and find out whether
what is going on here is plausible and try to probe further. But it is
entirely possible that in that process, somebody could have some in-
formation and be absolutely right, and that we would miss it; that on
first glance, it did not look feasible, it did not look plausible, but that
in fact, what that person was saying was absolutely correct. But be-
cause we have so many crazies and so many nuts that come in that
door, you tend to be kind of callous to people that come in like that.
There is the press of other business, and we have other things to do,
and we do not want always to be just reacting to things that come in
the door. You want to have an agenda of your own of some things that
you are trying to accomplish. It just is not a very adequate insurance.
I hope that over time, the Intelligence Committees of the House and
the Senate can show a good track record, that they pick up on the issues
where there is a case, and that they have enough sense to investigate
and drop the issues where there is not. But I would hate to have a law
written that says that that is the only avenue. I think it is dangerous.
And history has shown that there are other examples of other com-
mittees. After all, the Pentagon Papers, it seems to me, were sitting
over in the files of the Foreign Relations Committee for a year, and
nobody over there thought they were all that important. I think a lot
of people over there thought there was old information in them, and
they did not realize that it would "sell," and eventually, of course, Dan
Ellsberg sent copies to the New York Times.
But what that shows is that people have different perceptions of the
same piece of information. A committee or committee staff, or a couple
of staffers, can look at something and say, "This looks crazy; there is
nothing here to it," and in fact, then, there is.
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Senator METZENBAUM. Congressman, let me ask a couple of ques-
tions. As the bill is currently written, do you think it covers these
activities,
Disclosures of the identities of agents as an integral part of another enterprise,
such as media reporting of intelligence failures or abuses ; academic studies of
U.S. Government policies and programs; or a private organization's enforcement
of its internal rules.
Now, that language comes from the Senate Report at page 18.
Mr. AsPiN. I think it does. I think you can get a certain set of cir-
cumstances where people pursuing those three different activities that
you mentioned could be subject to prosecution under the bill as it is
worded.
Senator METZENBAUM. How would your amendment help to limit the
coverage of section 501(c) ?
Mr. ASPIN. Well, the amendment that I offered both in the commit-
tee, and then tried to convince the Judiciary Committee to take up, was
an amendment which expanded on a provision that is alreadLi n the
bill, which says that it is a defense for anybody to show that Gov-
ernment has already revealed the name of the agent. And that is al-
ready in the bill, where it says if the Government has already revealed
the name, you cannot prosecute somebody for using that name. What
I was doing was to expand that into another section, which said that it
should also be a defense for the defense under prosecution under this
bill if the defenders can show that they got the information from un-
classified sources. That was the amendment that I offered, because I
thought that would offer the kind of guarantees that the language
needed in order to protect the bill from going after people we did not
intend that it go after.
Senator METZENBAUM. Is the substitution of "reason to believe"
there is harm to foreign intelligence activities preferable to the House
bill's requirement that there be an "intent" to harm foreign intelligence
activities?
Mr. ASPIN. No, I think it is worse. And I think that Senator Chafee
believes that it is better. I think it is worse because "reason to believe"
is a lower standard of proof than "intent." In the case where you have
to prove that they have reason to believe, you are just saying this per-
son had a reason to believe that such activities would impair. Whereas,
the other is the language of intent. I would prefer, if I had to take one
of them, the House language of intent.
Senator METZENBAUM. Would you not say that intent is difficult
enough to prove in any matter of litigation?
Mr. AsPiN. Yes.
Senator METZENBAUM. Then, if you go beyond that and have the lan-
guage of "reason to believe" instead of "intent," that you have sub-
stantially lowered the degree of proof that is necessary.
Mr. AsPiN. That is my impression.
Senator METZENBAUM. We are told that section 501(c) differs sub-
stantially from all other statutes which criminalize disclosures of
intelligence information. In your opinion, does it, and if so, how?
Mr. ASPIN. I think I am, perhaps, not the right witness to address
that question to, not being really familiar with the law here and the
different aspects: -So if you do not mind, let me pass on that one.
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Senator METZENBAUM. Congressman Aspin, I want to thank you
very much
Mr. AsPIN. Mr. Chairman, may I raise one issue before I leave, and
I think it is a very important issue, which I urge you to try and sort
out with the other witnesses that are coming up. We have examined
the language of this bill in terms of whether it can be abused by
prosecuting people that we did not want prosecuted. The other side of
that question, and the other question that needs exploring is, suppose
we took this language out, suppose we knocked out 501 (c) entirely.
How difficult would it be to protect what the CIA wants to be pro-
tected, namely, the names of agents? In other words, how much dam-
age are we doing, or what are we doing to the question by taking out
501(c) ? And that gets to the heart of the question of whether or not
it is possible to figure out the names of covert agents by relying solely
on unclassified sources. And that, I think, is a very difficult question,
and it is a question on which it is not easy to get a clear reading on.
I have looked at the testimony of the CIA, of Mr. Carlucci, who you
have appearing as a witness this morning, and other testimony by
Stan Turner and others. The first question is, if we have this 501(c)
language, can it be abused, and can you go after journalists or people
who are trying to clean house in academia? The second question is,
if you put in some of these amendments that we have been talking
about, does that mean it is impossible for the CIA to protect the
names of their agents? And I think that is a very important issue to
go into.
And the question does not seem to be very easily answered, and I
think there are a lot of questions about how much cover is being pro-
vided for CIA agents, and whether it is possible, through using un-
classified sources, to identify them. And if the answer to that question
is yes, then the question is, "Is this law the right way to go about it,
or should there be a better way of providing cover in order to protect
those people?" In other words, if it is possible for a Phillip Agee or
somebody like him to identify agents and expose agents solely by using
unclassified information-which, of course, must be the rationale be-
hind this bill-then the question is, if that is the case, is this language
of this bill the way to stop that or, given the constitutional problems
that it raises and the first amendment problems that it raises, isn't
the better way to go about it to provide better cover so that it is not
possible to identify agents.
Senator METZENBAUM. We will get into it.
Thank you very much, Congressman.
Mr. ASPIN. Thank you, Mr. Chairman.
Senator METZENBAUM. The committee will take a 5-minute recess.
[A short recess was taken.]
[The prepared statement of Congressman Aspin followsJ
PREPARED STATEMENT OF LES ABPIN
Unfortunately, the really important tests of the Bill of Rights and especially
the First Amendment are often brought on by individuals and causes who may
be intensely unpopular.
This is the situation with H.R. 5615, the Intelligence Identities Protection Act.
This bill embodies the sharp disapproval of an overwhelming majority of
Americans at the actions of a few self-appointed guardians of the public moral-
ity, who have decided in their wisdom that we no longer need covert action intelli-
gence capabilities.
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There Is no question but that the activities of men like Phillip Agee have
weighed heavily on the minds of intelligence officers working under cover
abroad. There is no question but that when a journal such as the Covert Action
Information Bulletin publishes the names of persons said to be members of CIA
in Jamaica, and those persons are exposed to physical jeopardy, most Americans
are outraged.
The danger is that, motivated by anger and working in haste, we will offer up
legislation that is unwise, that taxes the First Amendment, and weakens its
protections and guarantees. Should that happen, the best we can hope for is that
the Supreme Court would strike it down or narrow the bill in ways that deprive
it of meaning-but then we would be left still facing the problem of how to deal
with this issue.
H.R. 5615 is a product of a long effort to avoid those pitfalls. The bill in its
present form shows major effort to define the divulging of names of agents as a
criminal act narrowly enough so that it does not embrace legitimate exercises of
freedom of speech or freedom of the press.
Nevertheless, I believe that the Bill errs in at least one fundamental way.
Section 501(c) was drafted specifically with the Covert Action Information
Bulletin in mind. It reads :
"(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, discloses, with the intent to impair or impede the foreign intelligence
activities of the United States, to any individual not authorized to receive classi-
fled 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 relation-
ship to the United States, shall be finded not more than $15,000 or imprisoned not
more than three years, or both."
The key phrase here is "any information that identifies a covert agent". This
means not just classified information, but all information including unclassified.
The question of whether or not it is possible to figure out the names of covert
agents reliably from unclassified sources is one which seems to give the CIA a
lot of difficulty.
I have reread testimony given by Mr. Carlucci, the Deputy Director of Central
Intelligence, when he addressed the names of agents problem in various appear-
ances before the House Permanent Select Committee on Intelligence, and I have
also read Admiral Turner's letter of September 2, to the Chairman of the House
Committee on the Judiciary.
In no case do I find a flat answer to the question of whether it is possible to
reliably and accurately discern the names of agents from unclassified sources of
information alone. The CIA denies that there is any one document where this
information can be found, but concedes that it is at least latent in a number of
unclassified sources. This potentially damaging comment on the way we provide
cover for our agents is at once qualified, however, by CIA's further claim that
the names of agents can be determined from this latent information only if two
other critical elements are present : inside guidance from what Admiral Turner
called "faithless former government employees," and a certain amount of snooping
and physical surveillance.
CIA's problem is not hard to understand. Surely CIA would not want to
admit that cover arrangements are so poorly designed that they can be pene-
trated by a little work in the public library. If so, then it should be the CIA
which goes back to the drawing board to improve those arrangements, and the
Congress ought not to be asked to dip into the First Amendment to make good
on what the CIA has done poorly.
On the other hand, CIA apparently doesn't want to claim that unclassified
information is valueless as a means to detect covert agents, because then there
is no reason to include unclassified information in the Bill.
An Interesting fact about cover arrangements, in contrast to almost any other
kind of secret, is that the government should have the best chance of keeping
this knowledge to itself, among all the secrets it possesses.
Each piece of information that gets written and sent into the world about
an individual who is under cover is the result of an act of decision by someone
in the Executive Branch.
If the government eventually allows so much different information about
cover arrangements to get out into the unclassified world-and not through leaks
mind you, but legitimately, in this or that piece of paper-that you can piece
together the names of agents, in a sense the government itself has revealed the
names of those agents.
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H.R. 5615 comes close to recognizing this idea. Section 502(a), under De-
fenses and Exceptions provides that :
"It is a defense to a prosecution that before the commission of the offense
with which the defendant is charged, the U.S. had publicly acknowledged or
revealed the intelligence relationship to the U.S. of the individual the disclosure
of whose intelligence relationship to the U.S. is the basis for the prosecution."
That's a reasonable position to take, and it's too bad the principle wasn't
carried through to its logical conclusion.
If we ever get a situation where persons did not get the names of agents
from classified sources, but from careful research involving unclassified sources,
H.R. 5616 says that those persons could be prosecuted.
We shouldn't be in the business of prosecuting people for applying unclassi-
fied information that the government freely gave out, even if we don't like the
purposes or the product.
I am not arguing that the First Amendment is absolute. There have been
instances where the Government has established the constitutionality of its
right to limit speech. But the tests for these limits are severe, involving jeop-
ardy to lives, and imminent danger to the survival of the nation, as in time of
war.
But if you look at the advocacy CIA has mounted on behalf of H.R. 5615,
I think it will be clear that the core of their problem is something else, better
defined as administrative inconvenience: the loss of trained agents, the em-
barrassment to liaison relationships with other intelligence services, and so on.
At that level of injury, where we are talking mainly about impeding the
progress of this or that intelligence program, I do not think the Constitution
allows us to punish individuals who use unclassified information to say things
we dislike, however heartily.
That is why I believe that 5615 should not extend to the products of unclassi-
fled information. Therefore, when the Bill was under discussion in the House
Permanent Select Committee, I introduced language to that effect, as follows :
"It is a defense to a prosecution under Section 501 that before the commis-
sion of the offense with which the defendant is charged, the defendant knew
from other than classified information 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."
Regrettably, it was rejected. But I think it was right. Although alone among
my colleagues on the Select Committee on this issue, I have some distinguished
company, and at least one surprise guest.
In 1945, Judge Learned Hand, in the Heine case, reversed an espionage con-
viction that was based solely upon evidence of clandestine transmission into
Nazi Germany of publicly available information. The description of the tech-
niques employed will sound familiar if transposed from gathering unclassified
data about U.S. defense production to gathering and collating unclassified data
about the names of agents.
"This material he condensed and arranged in his reports, so as to disclose
in compressed form the kinds and numbers of planes-military and commer-
cial-which were being produced and which it was proposed to produce ; the
location and capacity of the factories ; the number of their employees ; and
everything else, of which he could get hold, that would contribute to as full a
conspectus as possible of the airplane industry. All of this information came
from sources that were lawfully accessible to anyone who was willing to take
the pains to find, sift and collate it, * ^ *.11
Hand, while clearly recognizing that Heine had been acting as an agent for
the Third Reich, decided that Heine's use of unclassified materials could not be
prosecuted as a criminal act.
"Certainly it cannot be unlawful to spread such information within the United
States ; and, if so, it would be to the last degree fatuous to forbid its transmis-
sion * * *.
"Whatever the wrong done * * * that motive did not make the spread of in-
formation criminal, which it would not have been criminal to spread, if he had
got it fairly * * *."
Even more interesting is the position of the Department of Justice just a few
months ago. At that point, Justice clearly took the position that including unclassi-
fied information would risk making any names of agents bill unconstitutional. Mr.
Robert L. Keuch, the Associate Deputy Attorney General, testified that :
" (Such a proposal) marches overboldly, we think, into the difficult area of
political, as opposed to scientific, `born classified' information, in a context that
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will often border on areas of important public policy debate * * *. A speaker's
statements about covert activities could be punished even though they are not
based on access to classified information, do not use inside methodology acquired
by the speaker in government service, and are unembued with any special author-
ity from former government service * * *."
The Department of Justice was, moreover, advocating its own bill at the time,
and the language is worth having a look at, since it explicitly covers classified
information, only.
What has changed since Justice took this position has nothing to do with the
law or with an understanding of the Constitution.
The only new factor is public and congressional anger over the intervening
activities of the editor of the Covert Action Information Bulletin.
If anger is the basis for a change of heart on such a significant issue, we should
think again.
Senator METZExBAUM. We now have a panel of witnesses : the Hon-
orable Robert L. Keuch; the Honorable Frank C. Carlucci, and the
Honorable Edward J. O'Malley.
I think Mr. Carlucci is to be the first witness, as I understand it.
We are very happy to have all of you with us. I would be very happy
to have you identify Mr. Hitz, with his new moustache. What role are
you in here, Mr. Hitz?
Mr. Hrrz. I am legislative counsel for CIA, Senator Metzenbaum.
Senator METZENBAUM. OK. I know you have worn some different
hats, but I did not know which one you had on today.
Mr. Silver, in what capacity are you here, Sir?
Mr. SILVER. I am here as general counsel of the CIA.
Mr. STURGIS. I am Jim Sturgis, special assistant to the Assistant
Director of the FBI.
Senator METZExBAUM. We are happy to have all of you with us. I
will comment to you that we are running very late, as we spent so much
time with Senator Chafee. I would hope not to have to continue these
hearings. There is a great deal of interest in trying to conclude this
subject within a 20-day period, but I want to give every witness an
opportunity to be heard. So I would ask that you be relatively brief,
so that we may get into some of the questions that are concerning the
committee.
Mr. Carlucci, please proceed.
PANEL OF GOVERNMENT OFFICIALS :
STATEMENTS OF FRANK C. CARLUCCI, DEPUTY DIRECTOR, CEN-
TRAL INTELLIGENCE AGENCY, ACCOMPANIED BY DANIEL B. SIL-
VER, GENERAL COUNSEL, AND FREDERICK P. HITZ, LEGISLA-
TIVE COUNSEL; ROBERT L. KEUCH, ASSOCIATE DEPUTY ATTOR-
NEY GENERAL, DEPARTMENT OF JUSTICE; EDWARD J. O'MAL-
LEY, ASSISTANT DIRECTOR, INTELLIGENCE DIVISION, FEDERAL
BUREAU OF INVESTIGATION, ACCOMPANIED BY JIM STURGIS,
SPECIAL ASSISTANT TO THE ASSISTANT DIRECTOR, FBI
Mr. CARLUCCI. Thank you, Mr. Chairman.
Following your suggestion and in the interest of saving time, I
would ask that my full statement be put in the record.
Senator METZExBAUM. Without objection, the statements of each
of the witnesses will be included in their entirety in the record follow-
ing the oral testimony.
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Mr. CARLUCCI. Let me just address a couple of the points that have
been raised earlier today and look at them from the CIA perspective.
I think everybody is agreed on the need for some action in this area.
The CIA has been troubled by this problem for some time. We have in
the agency many dedicated people who are prepared to accept the
normal risks inherent in their jobs, but they really feel quite deceived
by the activities of this coterie of Americans who have an avowed
purpose of destroying the Agency. They find it very puzzling that
the U.S. Government has not been able to deal with this question.
It has not only an impact on them professionally, putting them and
their families in danger, but it has a very serious impact on their
sources of information.
There is nothing so important to an intelligence organization as
secrecy. People will not give you information if they do not think that
information and their identity is going to be kept confidential. As they
see list after list of CIA people and agents roll out, they say to us,
"How in the world can you possibly protect us, if you cannot protect
your own people from you
Similarly, cooperating services
around the world say, "How can you protect the information that you
give us if you cannot even keep confidential the names of your own
people?"
There has been some discussion today, Mr. Chairman, of how much
of the information that is used by people who reveal the names of CIA
personnel and agents is publicly available.
Senator METZENBAUM. Let me interrupt you just a moment. To each
of the witnesses, I do not think you have to convince this committee
that we need legislation or that there are problems. I think the issue
to which we are addressing ourselves in the main has to do with the
extension of the language to those who are not engaged in activities
like those of Mr. Agee and Mr. Wolf. I think that the concern we have
is the applicability of the legislation to normal investigative and rep-
ortorial activities of people in the media. I think we are concerned
about the matter of making illegal the publication of unclassified
information.
So I would ask each of you not to just repeat the fact that there is a
problem. We know there is a problem. What we are dealing with is a
smaller portion of the issue that has to do with the language of the leg-
islation and how you go about achieving the objectives of the
legislation.
Mr. CARLUCCI. We share your sentiments there, Mr. Chairman. We
are not looking for any Official Secrets Act, any blanket kind of legis-
lation. We in the agency fully support legislation that is narrowly
drawn to deal with a specific problem, namely, the practice of reveal-
ing the names of our CIA personnel and our agents.
And I recognize that everybody supports legislation, but we all
want legislation that deals effectively with the problem, as well as
legislation that does not infringe on first amendment rights.
I will defer to the Justice Department on the constitutional issues.
but let me say a word about some of the questions that were raised
by Congressman Aspin with regard to publicly available information
and cover.
There is no single source that one can go to to find out-that is,
single, unclassified source-to find out the names of CIA personnel.
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There are, however, well-developed techniques, techniques that have
been made available by some faithless former employees, techniques
that very much resemble counterintelligence activities that would be
carried on by a hostile service.
Now, we have no information on how the perpetrators of this ac-
tivity go about gathering their information. We can only speculate.
Senator METZENBAUM. Mr. Carlucci, I was told yesterday in prepar-
ing for this hearing that up until some recent period, it was rather
simple to determine who a CIA agent was, because the designation in
the State Department offices was "FSR" instead of "FSO."
Mr. CABLUCCI. FSR, Mr. Chairman, is a rather broad category.
There are two types of Foreign Service officers. There are the career
Foreign Service officers, who go in at the entry level and move up-
I myself am one. And there are Foreign Service reserve officers, who
are people who are brought in for a special purpose. They may be
mining engineers or petroleum engineers, they may be medical people,
who are given the FSR designation.
So it is not correct to say that you can single out CIA people simply
by looking at the FSR designation. It is correct, however, to say that
using certain well-developed techniques, people can surmise, they can
glean from some documents that were previously available and are
no longer available, or even some documents that may still be avail-
able today, they can speculate on the names of CIA personnel. They
do not do this with 100-percent accuracy. We are working very closely
with the State Department to tighten up on any telltale signs. We
are working to improve our cover. I have had a session, an executive
session, with the Senate committee, jointly with the State Department,
on the cover issue. It is not something I can discuss, obviously, in a pub-
lic session. But let me make this point. Cover is not absolute. Any
time a man becomes operational, he compromises his cover in some
way. There is no perfect cover. Furthermore, the only purpose of cover
is not to protect the names of our people from the KGB, as some people
assume. Cover is used to give our people access to certain targets. It is
used even when the host government knows we have people in the
country. It is used to allow them plausible denial, if you will. And
finally, it is used to protect our people from the kinds of terrorist at-
tacks that have already been mentioned in this hearing.
So what we are dealing with is not a group of people who simply go
around and pick up documents and glean the names of people from
these documents. We are dealing with people who have developed
highly sophisticated counterintelligence techniques. Their own pub-
lications indicate that their sources are not published documents.
We have made available to the committee one of their publications,
"Dirty Work 2," where they say themselves, in some cases Department
of State sources, Dar Es Salaam Embassy source, Dar Es Salaam
diplomatic and counselor list. They cite different. sources for their in-
formation. For all we know, they may be conducting physical sur-
veillance. Is physical surveillance of the movement of our people pub-
licly available information? Is idle gossip at a cocktail party which
might be revealing publicly available information? I submit that it is
not.
What we have here is a very deliberate and sophisticated effort to
penetrate our cover, and no matter how good our cover is, I would
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speculate that this kind of effort would continue. They do not just pub-
lish the names of our people, Mr. Chairman. I was Ambassador to Por-
tugal when Phillip Agee made one of his so-called revelations. He pub-
lished the names of a number of people in the Embassy, some accur-
ate, some not. But in addition to names, he gave telephone numbers,
license plates, the make of the car, addresses, and went so far to say
Senator METZENBAUM. Mr. Carlucci, you are doing what I do not
want you to do, and that is, you are falling into the arena of just
going on about the problem. We agree there is a problem. We want
to help you. But what you are doing is not testifying to the concerns
that this committee has. This committee is supportive of the legisla-
tion but has problems with some of the specifics of it, and you are not
addressing yourself to that.
Mr. CARLUCCI. Mr. Chairman, you raised the question of publicly
available information. I was trying to address the question of pub-
licly available information.
Senator METZENBAUM. Well, are you saying that if a newspaper re-
porter goes to a cocktail party and concludes from that cocktail party
that somebody is a member of the CIA and writes a story about it,
that that is-
Mr. CARLUCCI. No, no.
Senator METZENBAUM. Well, I do not know what you were saying
about going to a cocktail party.
Mr. CARLUCCI. I am saying that there is a certain group that has
engaged in what is essentially a counterintelligence effort against
the Central Intelligence Agency, and that they are using all possible
sources to pick up their information. I am sure they have a substan-
tial data base by now.
Senator METZENBAUM. That is part and parcel of your business,
that is, you have intelligence, and you have counterintelligence.
Mr. CARLUCCI. Yes, but we really do not expect it from our own
people, Mr. Chairman. That is the whole point.
Senator METZENBAUM. All right. The question, then, is why is it
necessary to prosecute an individual who has gathered information
that you yourself or others in the Government have already revealed
and put into the public domain?
Mr. CARLUCCI. We have not put it into the public domain, Mr. Chair-
man. That is precisely the point I am trying to make. If our people
are in an Embassy and they are on a diplomatic list, you can say ,yes,
their names are in the public domain, but they cannot be identified as
CIA people without some extra effort and without using some sophis-
ticated techniques. So it is not in the public domain
Senator METZENBAUM. Therefore, that would be classified infor-
mation.
Mr. CARLUCCI. Well, the diplomatic list is not classified.
Senator METZENBAUM. Well, just being on the diplomatic list does
not make you a CIA agent.
Mr. CARLUCCI. That is correct.
Senator METZENBAUM. So you would have to have something over
and beyond that in order to know what we are talking about, vis-a-vis
the question of
Mr. CARLUCCI. You can use certain techniques by following a per-
son's career pattern. You can pick up information in various ways
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in different countries. I really do not think it is appropriate for me
in a public forum to go into all the counterintelligence techniques that
can be used. But there are ways that one can glean this information-
not with 100 percent accuracy, but with enough accuracy to do very
substantial damage to our intelligence collecting capability.
Senator. METZENBAUM. Mr. Carlucci, you testified that : It is only
because of the disclosure of sensitive information, based on privileged
access and made by faithless Government employees with the purpose
of damaging U.S. intelligence efforts, that the public has become
aware of indicators in these documents that can sometimes be used
to distinguish CIA officers. That was your testimony of June 24.
Doesn't this indicate that the root of the identities problem is faith-
less Government employees and leaks of sensitive information, not
private citizens and reporters?
Mr. CARLUCCI. It indicates, Mr. Chairman, that the problem had
its inception with faithless Government employees who went public
with the names of CIA personnel, the most prominent of whom, of
course, is Phillip Agee. But since then, this kind of activity has been
picked up by a number of people who are not former Government
employees and has been carried out in a very sophisticated way, in a
systematic way, using techniques that they may well have learned-
I do not know, I assume that they may well have learned-from
these faithless Government employees.
They have an article here by John Marks, entitled, "How to Spot a
Spook," which lists all the techniques. So they can start out with the
knowledge imparted to them by faithless Government employees, but
picking up on that, they are conducting a pattern of activities de-
signed to expose our people.
Senator METZENBAUM. Well, John Marks was a former State De-
partment employee, wasn't he?
Mr. CARLUCCI. Yes, but he had access to classified information. State
Department people, of course, have a lot of knowledge of how our
people operate.
Senator METZENBAUM. And he would have been covered by (a) or
(b) of ft'1he bill, and you do not need section (c) for him, do you?
Mr. CARLUCCI. That is correct, but the point I am making, Mr.
Chairman, is that the techniques that John Marks published-John
Marks, Phillip Agee, and others-have been picked up by people who
are not former Government employees, and they are now the princi-
pal problem. What happened in Jamaica did not arise from the ac-
tivities of a former Government employee. It arose from the activi-
ties of someone who was not a Government employee, and it is pre-
cisely this kind of activity that we need to prevent if the legislation
is to be effective.
Senator METZENBAUM. Well, I think that we all intend to have legis-
lation which would protect against the kinds of activities that occurred
in Jamaica and other places where there have been killings and there
have been problems. The problem is: How can we draft the legisla-
tion in such a way that we do not go beyond the appropriate safe-
guards?
Now, in your testimony, you explain that the bill is constitutional
because-and I quote : "The activities that these bills attempt to deal
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with are a systematic, purposeful job of uncovering identities and are
conducted with a clear understanding evidenced by an express intent
that their effect will be to impair or impede legitimate U.S. intellig-
ence activities."
Now, as previous testimony has already indicated, that is not actual-
ly correct, since the bill does not require an express intent but only rea-
son to believe. That is a big difference, isn't it, since reason to believe
does not involve proof of any intention at all, or even actual knowledge
that disclosure will harm intelligence activities.
Would the Department support a change, in this bill to the language
that was in the House bill, as I understand it.
Mr. CARLUCCI. Mr. Chairman, we fully support the Senate bill. We
think that that is It reasonable and effective approach to resolving the
problem.
Our original position-the Agency's original position-did have an
intent clause in it, but we have deferred to the Department of Justice,
and we are fully satisfied with the formulation that has been set forth
by Senator Chafee-a pattern of activities with reason to believe they
would impair or impede intelligence activities of the United States.
Senator METZENBAUM. But your own testimony indicates that you
ought to have an express intent. That is your testimony today, as I
understand it.
Mr. CARLUCCI. Well. Mr. Chairman, that is a typing error, and I
would like to correct that. I would like to correct that, Mr. Chairman.
We do not think express intent is necessary under the Senate formula-
tion.
Senator METZENBAUM. Certainly you can correct your testimony, but
it is not a matter of correcting the testimony. It is a change of position.
Mr. CARLUCCI. No, it is not, sir.
Senator METZENBAUM. Well, it certainly is a change in position, be-
cause reason to believe that there is intent is certainly something differ-
ent than express intent. Now, how can you say that is not a change of
position?
Mr. CARLUCCI. We did alter our position some months ago to favor
the Justice formulation. But we do support S. 2216, which does not
have intent expressly written into it.
Senator METZENBAUM. Well, I think our time is running out. Let
us hear from you, Mr. Keuch.
Also, Senator Simpson, please feel free to come in at any point that
you care to. We are happy to have you with us.
Senator SIMPsoN. Thank you very much, Senator Me.tzenbaum. I
had just one question in that area, since you were discussing the sensi-
tive issue of the first amendment, if I am not mistaken, as I entered.
It is my understanding in the legislation, and I have been involved
with an amendment-I will not go into any chest thumping or any-
thing of that nature with regard to it-but it is an issue that has
intrigued me greatly, and I think we must correct it, and we must also
be wary of infringing upon the first amendment.
But in those instances where prosecution is sought against a third
party who published such a disclosure, it is, under the Senate legis-
lation, necessary for the Government to prove a premeditated intent
to impair or impede the Federal law enforcement or intellectual
functions of the Government. And I think that that requirement
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establishes-the word knowledge establishes that that intent presents
and gives us protection with those first amendment provisions which
I think are so necessary to protect the news media in the legitimate
conduct of their constitutionally guaranteed function. But I want to
be certain that you feel that the Senate legislation has sufficient safe-
guards in your view to protect the first amendment rights of the
legitimate newsgathering agencies of this country.
Mr. CABLUCCI. Senator Simpson, I do, but I should indicate to you
that I am not a constitutional authority. But my own feeling is that
it is very narrowly crafted, with a substantial threshold of proof,
and it is designed to get at a very small group, conducting a deliberate
activity which is harmful to the security interests of our country.
Senator SIMPSON. I, like Senator Metzenbaum, spent some time in
the State legislature before I came here, and one of the great argu-
ments of all time was any time somebody was on the other side, they
said it was unconstitutional. They always took that route. So it is
one that I have always been wary of because it is so nebulous. And
there is a court out there to decide that, and not here.
So, thank you.
Senator METZENBAUM. Mr. Keuch?
Mr. KEUCH. Senators, as I indicate in my prepared statement, the
Department of Justice believes that S. 2216 not only satisfies the con-
stitutional and other objections we raise, but otherwise satisfies ap-
plicable constitutional standards.
The constitutional objections that have been raised in the proposed
legislation center mainly on section 501 (c). I would like to discuss
that section very briefly, since my comments concerning its consti-
tutionality apply, of course, with special force to the other provisions
of the legislation before us.
Section 501 (c) requires the Government prove the defendant made
his disclosure in the course of a pattern of activities intended to iden-
tify and expose covert agents and with reason to believe that such
activities would impair or impede the foreign intelligence activities
of the United States and, of course, with the knowledge that the infor-
mation that he discloses would disclose the covert agent, and with the
knowledge that the U.S. Government has taken steps to protect that
identity.
These requirements substantially narrow the coverage of 501(c)
and reflect the judgment that general public discussion of intelligence
activities is desirable, and that any new prohibition in this field must
be narrowly drawn to preserve that general interest against unneces-
sary encroachment. In accordance with that principle, 501 (c) does
not seek to prohibit discussion generally, but is directed at the indi-
vidual or individuals who take it upon themselves to bring intelligence
activity to a halt, and it does this, not by urging a change in public
law or policy, but by ferreting out the identities of individuals who
are involved in intelligence activities and by disclosing those identi-
ties with the intent the intelligence functions will be disrupted by the
disclosure itself.
The Supreme Court has, of course, consistently held that the
Nation has interests that can justify prohibitions against some kinds
of speech in some circumstances. In particular, the Court has held
that the Nation has a compelling interest in erecting and maintaining
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effective systems of national defense, including intelligence systems;
and the Court has upheld prohibitions against unbridled speech that
threatens necessary defense or intelligence systems in a direct and im-
mediate way. I refer the committee to Debs and Snepp, among other
cases.
The prohibition in 501(c) requires proof that the intelligence
identity in question was classified and that the defendant knew that
the Government was attempting to keep the identity secret. It
thereby avoids a criticism that some judges and others have directed
at other statutes in this field-statutes that do not expressly confine
their strictures to cases in which there is an actual occasion for
secrecy.
I cite the opinion of Judge Hand in United States v. Heine. Yet the
essence of the offense is the defendant's attempt to create, through
private speech, a direct and immediate obstruction to a necessary
defense process.
Now, one could persuasively argue that in a particular case, there
may be a legitimate individual interest in engaging in an enterprise
of that sort. But in assessing the constitutional balance between that
interest and the compelling national interest in maintaining an effec-
tive intelligence system, we cannot conclude that there is no instance
whatever in which the Government can make such an enterprise
unlawful.
As I note in my prepared testimony, S. 2216 incorporates a number
of recommended changes designed to make clear the narrow scope
of the prohibition and to prevent the prohibition from chilling bona
fide debate over intelligence policy and practice. It is our view that
the bill, as amended, strikes a proper constitutional balance among
the competing interests involved. It is our view that the proposed
legislation is constitutional.
Mr. Chairman, I will submit the rest of my comments in my pre-
pared statement and will, of course, attempt to answer any questions.
Senator METZENBAUM. Thank you very much, Mr. Keuch.
You certainly addressed yourself to the constitutional issues. It is
my understanding that Mr. Floyd Abrams testified at an earlier hear-
ing and cited six Supreme Court decisions that gave him cause for
concern. He will be testifying later in the morning. I am frank to say
I have not read his testimony.
Have you had an opportunity to examine those cases to test the
validity of his observations vis-a-vis the constitutional question raised
in those six cases?
Mr. KEUCH. Mr. Abrams' testimony was certainly considered by
the Department of Justice, Senator. Following both our appearances
before the House Committee on Intelligence at the initial stages of
consideration of this legislation, I was asked by the committee to pro-
vide specific comments on Mr. Abrams' testimony. I did so in a June
18 letter to Congressman Murphy. I would like to make a copy of that
letter available to the committee. I am sorry I do not have a clean
copy, but I will make it available this afternoon or tomorrow morning.
But very specifically, Mr. Abrams' testimony has been taken into
consideration. Of course, in the area of constitutional law, like any
other area of law, reasonable minds can differ.
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It is the conclusion of the Department of Justice that this legis-
lation as proposed meets constitutional standards.
Senator METZENBAUM. Do you have a copy of the letter there!
Mr. KEUCH. Yes, sir, I do, but I am afraid it is not a clean copy.
[The letter referred to above appears in the appendix.]
Senator METZENBAUM. Well, let us at least peruse it, because we may
have some questions for you before you conclude your testimony.
My staff tells me that you told the House committee that a single
disclosure is subject to prosecution if part of an extended investigation.
Would that still be your testimony today?
Mr. KEUCH. I do not believe I said that, Senator. I think I had
indicated that a single disclosure of a name of a covert agent could
meet the statutory standard if the other activities engaged in met the
standard of a pattern of activities intended to expose and disclose
covert agents, et cetera, at cetera. My point was that you did not have
to have a situation solely to meet the standard of the statute that in-
volved the disclosure of 50 names, and you had to wait until the 50th
name was disclosed before you could bring an action. There are other
activities that might come short of that, but would definitely meet the
statutory standards, and that is all I was attempting to say in my
House testimony.
Senator METZENBAUM. As I understand it, then, you are saying that
if there has been an extended investigation, and it leads to a disclos-
ure with respect to Hussein or someone else, or an assassination at-
tempt, and there is one disclosure, that that would be prosecutable.
Mr. KEUCH. No, sir, I do not believe so. I think the pattern of ac-
tivities must be a pattern of activities intended to disclose and expose
covert agents. I think that the legislation is carefully drawn, I think
it attempts to exclude the very situation that you are discussing, and
that is the one case, the one newspaper article, the one egregious situ-
aion, and the rest. I think that the pattern of activities has to meet
a very strict statutory standard.
All I was trying to say in my House testimony was that those ac-
tivities do not necessarily have to be seriatum disclosure of agents.
We do not have to wait until we have been bitten 25 times or 15 times
by the type of egregious disclosures we are talking about before we can
take action, nor do I think we should have to wait.
Senator METZENBAUM. On page 5, you quote your earlier testimony
that the former bill's language on intent would allow a defendant to
offer the defense that the purpose of the disclosure was reform of in-
telligence policy or to point out an unwise or illegal intelligence
policy. Your testimony seems to imply that that is undesirable. Is
that correct?
Mr. KEUCH. No, sir, I do not think it is undesirable to question the
wisdom of a program, or policy, or the illegality of it. What I have
tried to state throughout my testimony, as Senator Chafee said, is
that there are simply other ways to do that in the marketplace, in the
proper oversight committees, et cetera, without revealing, again seria-
tum. a list of covert agents.
What I am simply trying to say is that there is no need to criticize
the CIA operations using the members of the clergy, using the mem-
bers of the press, using university professors, et cetera, by identifying
people as CIA agents. You can have that debate. You can discuss
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whether or not that is proper, whether it is wise, whether it is legal
or illegal, without naming 15 people who, when they did that, when
they undertook those activities, thought they were serving their coun-
try, were told they were serving their country, putting their lives in
jeopardy, putting serious intelligence operations in jeopardy, and
hurting our intelligence efforts. The debate can go on without the re-
lease of these names. If combination is necessary, if those names become
relevant and very relevant to the discussion, then the oversight com-
mittees sit. And I am afraid I do not share the pessimism of Congress-
man Aspin. I think those committees have done an excellent job. I
have been called up here because, of a comment in a newspaper, or a
comment on the street, et cetera, about what might have gone on in
the intelligence agencies too often to think that those oversight com-
mittees are not doing an extremely effective job. But that is a path
that is open. In the executive branch, there is the Intelligence Over-
sight Board that sits, and complaints can be taken to that Board. And
even to the other end, there are ways in which, under the Executive
order for classified information, an individual citizen or reporter can
ask that information be declassified for the purposes.
But my point is the debate on whether or not our intelligence pro-
grams and policies are wise or illegal can be carried out in the main
without the release of a great number of names.
I had rather broad supervisory responsibilities in investigations
over the Chile matter that led to at least one criminal prosecution and
a number of other criminal prosecutive memoranda, and yet we had to
dismiss a case in the Chile situation years later; despite all the talk,
despite all the Senate hearings, despite all the news reporting on it,
we had to dismiss a case to protect sources and methods. My point
is that that public debate went on without any need to list the names
of 50 covert agents.
Senator METZENBAUM. Isn't that precisely the kind of defense that
it is all right to criticize, but not to name a name?
Mr. KEUCH. I think that is part of the point of this bill, if you do
it when you meet the other statutory standards.
Senator METZENBAUM. Isn't that precisely the kind of defense that
the Senate Intelligence Committee reports says should be allowed,
when it indicates on pages 18 and 22 to 23 that disclosures for such
purposes are proper? Isn't that how the report distinguishes between
the "Covert Action Information Bulletin" and the New York Times?
Mr. KEUCII. I think what they are trying to do, Senator, is make a
distinction between the individuals who do this as part of a pattern of
activity. I think that is quite proper. My testimony says that, too. We
are trying to draw this legislation with a very fine line. We are not
trying to reach the responsible reporter in your example, the King
Hussein story, or an assassination story, et cetera. It is the individuals
who practice a pattern of activities. But if the question is, must you
make those disclosures in order to permit public debate, I just do not
think that is a sincere argument. I think you can have the public de-
bate, you can question our policies and the legality and the wisdom of
them, without having to put a number of people, who also think they
are serving their country very well, putting their lives and their fam-
ilies' lives in jeopardy.
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Senator METZExfAUM. Well, is the Department saying that a jour-
nalist engaged in a legitimate news reporting activity, who discloses
an identity, is intending to report the news and not to name the names,
and so is not covered by 501(c) ?
Mr. KEUCH. I think the legislation with the pattern of activities
language is trying to meet what we are all trying to do-that is, reach
those individuals who are engaged in a pattern of activities disclosing
covert agents-not to reach the responsible reporter who, writes the
one article, who writes the one story, or the rest. And I think my an-
swer to your question in that context would have to be-I am sorry
whether it is yes or no, I am sorry-the point is, we are not trying to
reach the individual responsible reporter who is writing the one news
story.
Senator METZENBAUM. What if it is a series of news stories, and it
leads up to the disclosure of the name of King Hussein, because the
name of King Hussein itself was news. It was far more newsworthy
than naming a professor who was a CIA agent. Wouldn't the reporter
have to do that, and wouldn't he then be subject to prosecution?
Mr. KEUCH. I do not think that an investigation or a series of arti-
cles leading up to the disclosure of one individual CIA asset or source
meets the statutory standard of a pattern of activities intended to ex-
pose and disclose covert agents.
I think it is also clear-I realize, in the statutory interpretation,
you go to the plain language of the statute itself-but the legislative
history, the development of the terminology in this statute, there is
simply no way that individual could be prosecuted.
Senator METZENBAUM. I understand you support the language that
there is "reason to blieve" there instead of "specific intent." Put aside
this bill. Do you think we ought to put that into all legislative propo-
sals or statutes that have the word, "'intent," and that we ought to now
change the standards in the law? Do you know of any other place
where we have such language in the law ?
Mr. KEUCH. I do not think we should put it in every piece of legis-
lation, because every piece of legislation involves balancing of differ-
ent types of interests. I know one place where that language occurs,
and that is in the most serious espionage statutes on the books. Also,
18 U.S.C. 794 makes it a crime to disclose national defense information
to a foreign government with the intent to act against the interests
of the United States, or to help a foreign government, or with reason
to believe it is disclosure
Senator METZENBAUM. Is that the language of that statute?
? Mr. KEUCH. Yes, sir, it is also in section 793. And one of the earliest
espionage cases I considered, Senator, was a Marine officer or an Army
officer, who felt that we were so far behind the Soviets in our missile
preparation and our missile program that we were losing the arms
race, and our national defense was suffering. He went public with a
tremendous amount of guided missile information, numbers we had,
where they were stored, and the rest, and his only intent was to bring
to the Congress and to the public what he considered the sad state. of
our missile preparation so that we could have a stronger national
defense.
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Now, I think he did egregious harm to the national defense by dis-
closing that national defense information. He was and is covered by
18 U.S.C. 794, the classic espionage statute.
And I think one of the questions you asked was: Does the reason
to believe language make this an easier statute to prosecute? The
answer to that is absolutely. But I think our purpose here is to draft
not just a statute, but to enact an effective statute.
And if you have the actual intent to impair or impede, you have
first the problem I just indicated. You are going into the individual's
motives. And, as Ambassador Carlucci and others have pointed out,
the people who are disclosing these lists seriatum are saying they are
doing it for the best motives possible, to help our intelligence opera-
tion. If we had the specific intent requirement, this statute would be a
nullity.
We have also testified at great length, on at least four or five of my
appearances, that that intent requirement raises serious constitutional
questions in the minds of the Department of Justice. We looked at that
very carefully, and we decided that what it would do would be to chill
public debate and chill public discussion, because you would take the
two individuals who are making disclosures, and the individual who
has been supportive of the intelligence. programs, supportive of the
administration, supportive of intelligence operations, et cetera, would
probably not seem to have that intent when he makes disclosure. The
individual who has always been critical of those programs of the intel-
ligence agencies and the rest would seem to have that necessary intent.
But that would mean that the individual who has been critical would
be more chilled in what he was going to say in making disclosures
than the individual who has been supportive.
We think that raises very serious constitutional questions. The
Senate committee has responded to those constitutional arguments
with the present formulation, and we think that is a wise choice.
There is, of course, one other problem
Senator METZENBAUM. Did the Department of Justice support the
House bill?
Mr. KEUCH. No; we had very deep constitutional concerns with
the House bill. As I testified before the House, we think that one of
the areas of constitutional law that is very open at the moment is
how you judge the constitutionality of a statute that can have both
constitutional applications and overbroad unconstitutional applica-
tions. There has been a shift in the Supreme Court in that area of
the law-Broderick v. Oklahoma, which I quoted, I think, in my
statement, or at least, certainly, in my House testimony, puts some
uncertainty in that, so we are definitely not sure. We have serious
concerns about the constitutionality of the House version. We far
prefer the Senate version, for all the reasons I have testified to.
Senator METZENBAUM. I think you have covered this, but I am not,
sure you have. That is, whether the reason to believe language will
not have a far greater chilling effect than a requirement to show spe-
cific intent. It is such loose language.
Mr. KEUCii. I do not think it is loose language at all, Senator. If
it is loose language, again, it is in the classic espionage statute.
Senator METZENBAUM. How many convictions have we had under
that classic language?
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Mr. KEUCH. Quite a number. I am not talking about the leak cases.
I am talking about classic espionage situations.
Senator METZENBAUM. Do you think that those came about because
you had the reason to believe language in there?
Mr. KEUCH. Yes, sir. In part, many of them did. Certainly, the
Soviet agent we arrest, who is clearly a Soviet agent, we suppose that
proving that intent would be easier. But again, the example of the
case I mentioned, the gentleman who gave up a great deal of highly
classified information on our missile program for the best of all
possible purposes. The people who are publishing lists of CIA agents
today, putting people's lives in jeopardy, affecting our intelligence
programs, are doing so, they say, for the best of all possible purposes, to
make more efficient our intelligence programs, to get us out of what
they consider to be an unnecessary activity.
I have testified over and over again that the specific intent require-
ment does raise very serious constitutional questions.
There is another aspect of the problem, and that is what we have
been commonly referring to as the gray mail problem. One of the
great benefits of this narrow statute in this area would be that we
would avoid a great number of gray mail attempts, that is, the indi-
vidual who says : In order to go forward with my defense in this case,
I need a great deal of classified information out of your files, Mr. Gov-
ernment, so you must pay one heck of a price to prosecute me. I will
make you harm the national defense in order to protect the national
defense by bringing this prosecution.
Under the subjective intent statute, as is presently in the House
bill, as I have testified over and over again, that gray mail argument,
we think, is helped substantially. The individual would have to say
that to prove that his intent was proper, that he was trying only to
help us, trying to get us out of activities that were not effective, not
efficient, were creating problems in countries, et cetera, that he needed
a great deal of information out of the files of the Government on our
other intelligence operations and programs. We simply could not pay
that price to bring a prosecution.
And again, I think our purpose is not only to draft a constitutional
statute, but an effective one.
Senator METZENBAUM. The letter that you sent to Congressman
Murphy, I am told, does not address those six cases
Mr. KEUCH. Senator, roman numeral II of the letter discusses
501(b), which was comparable-I am sorry, that was an earlier draft-
it was comparable to the present 501(c). Mr. Abrams, I think, has
referred to the same cases in each appearance before the various com-
mittees. I was attempting to meet his arguments.
I can only say to you that those cases were considered. We have
cited cases of our own. It remains the firm view of the Department
of Justice that this formulation is constitutional.
Senator METZENBAUM. My question to you was : Have you made an
analysis of the cases he has cited. Those cases are : Houchins v. KQED,
Smith v. Daily Mail Publishing Co., Landmark Communications,
Inc. v. Virginia, Oklahoma Publishing Co. v. District Court, and Cox
Broadcasting Corp. v. Cohn-
Mr. KEUCH. And I thought my response was that we have certainly
looked at those cases, as part of the constitutional consideration of
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the Department of Justice, and I am sure Mr. Abrams has looked at
my case. And again, constitutional law is a very fascinating area for
attorneys, and all I can say is that we have looked at this matter in
great depth in the Department of Justice. We have not taken this proc-
ess lightly. We have been involved in this process for a period of 9
months and have testified consistently on this issue. And it is our
conclusion, after consideration of Mr. Abrams cases and all the cases
we can find in this area, that this statute passes constitutional mus-
ter. I do not think I can be more specific than that, Senator.
Senator METZENBAUM. Well, you and I are both lawyers, we have
both practiced law. We both know that it is not at all unusual where
somebody cites a specific series of cases to respond to those. Yours is
a very perfunctory response in paragraph II, consisting of two
paragraphs.
It would be helpful to the committee if the Department would be
good enough to respond specifically to the legal aspects and the con-
stitutional questions involved in those six cases, and I would ask you
to have the Department do that, please.
Mr. KEUCH. Senator, we will certainly look at those cases again, but
let me say again that I think that those cases were part of our consider-
ations, and we reached the conclusion we did only after deep consider-
ation of the constitutional issues.
I will certainly read Mr. Abrams' cases again
Senator METZENBAUM. Well, I am not asking you to read them at
this point. I am asking you to have the Department respond promptly,
so that when this matter comes to committee for markup, I will have
your response.
Mr. KEUCH. I will be happy to respond, Senator. It will not change,
because our response is my testimony, and my testimony was not
drafted without consideration of all those cases. But I will be happy
to respond.
Senator METZENBAUM. I know the committee has a lot of confidence
in the Department of Justice, and we will be very interested in your
analysis of each of those cases.
Mr. O'Malley, we will be happy to hear from you, sir.
Mr. O'MALLEY. Thank you very much, sir. With your approval, I
would also like to request that my statement be admitted into the rec-
ord. I would also like to comment generally that the FBI supports this
bill, and I can assure you that Judge Webster, if the purpose of this
bill is to stifle legitimate debate, would not support it.
Rather, we think that the objective is to protect our intelligence ac-
tivities from those who would, as I say in my statement, destroy those
intelligence activities.
As you are aware, there are certain assets of the FBI and agents of
ours who travel abroad in a covert, capacity that we think should be
protected by this bill and are so included at the present time.
Those assets that I am talking about are only those that we use in
the foreign intelligence, foreign counterintelligence, and foreign ter-
rorism areas. We are not talking about any assets here who are in-
volved in any domestic groups. We have completely excluded them
from any consideration by this bill.
Why do we think that we need this type of protection for these
assets? We, as does the Agency, recruit people to assist us from foreign
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countries here in the United States. We also rely to a large degree
on members of the emigre communities here to assist us against these
hostile intelligence services. We do likewise in the foreign counter-
terrorism area, and when I am. talking about foreign counterterrorism,
I am talking about terrorist groups in the United States which are
acting pursuant to the direction of foreign powers. I am talking
mainly abut Arab terrorist-type groups here.
When I express my concern, I think it is rather obvious, and we
have extensive information that the Arab governments and/or entities
abroad which control these groups operating in the United States
would not hesitate for one second to exact severe retribution from any
of their people who they thought might be cooperating with the FBI.
We also have substantial information regarding possible foreign
services ; assassinations, and attempts to assassinate those they thought
or had reason to believe were now assisting Western governments. And
indeed, we have information regarding the United States itself, where
certain hostile services have sought to locate certain defectors in this
country with the purpose being to assassinate them. So far, we have
been able to prevent such attempts.
This generally is why we think, and support, of course, our recom-
mendation in this bill.
Senator METZENBAUM. Thank you, Mr. O'Malley.
Mr. O'Malley, has anybody revealed secret FBI identities?
Mr. O'MALLEY. Not to date, to my knowledge.
Senator METZENBAUM. Unlike agents abroad, aren't the FBI agents
and informants serving in the United States protected by U.S. police
power and other enforcement agencies?
Mr. O'MALLEY. FBI agents serving in the United States are not in-
cluded in the protection of this bill. It is only those agents who travel
abroad in a covert capacity.
If you are talking about assets, if we recruit a foreign national in
the United States, and his identity is divulged at a press conference,
there may not be sufficient time to protect that individual.
The case I was talking about before, where these hostile services were
trying to locate people who had already defected, fortunately for
us and everyone else concerned, they had already been afforded U.S.
Government protection. I am not prepared to say that in every in-
stance, we could guarantee similar protection to someone who has not
yet openly defected from his country.
Senator METZENBAUM. Do you think the matter with respect to
FBI agents might be more appropriately covered in the FBI charter
legislation?
Mr. O'MALLEY. The issue of FBI agents?
Senator METZENBAUM. Well, I think the similarity
Mr. O'MALLEY. We are only talking about FBI agents who travel
abroad. The foreign issue is what we are talking about here, and that is
all we are asking to be protected. I think we can protect our own agents
operating inside the United States in a covert capacity.
Senator METZENBAUM. Now, the FBI counterintelligence and coun-
terterrorism component infiltrated the Socialist Workers' Party, black
student groups, investigated the Southern Christian Leadership Con-
ference, Dr. Martin Luther King, Jr. Under this legislation, would it
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have been unlawful for the groups themselves to publish the names of
the covert agents involved in these activities?
Mr. O'MALLEY. These are not the type of groups that we are talking
about. There is a very clear delineation between the types of groups
that we are talking about now that are investigated by our intelligence
division and domestic groups, which are the type that you are talking
about. The only groups that we are talking about are groups in the
United States, either terrorist or otherwise, in our counterintelligence
area, that are clearly operating under the direction and control of a
foreign power.
Senator METZENBAUM. But would it have been unlawful for the
groups themselves to publish the names of the covert agents involved
in those activities?
Mr. O'MALLEY. Not in those days.
Senator METZENBAUM. Under this bill, under this bill, if the same
activities were going on today.
Mr. O'MALLEY. They are just not covered under this bill. These are
not the types of organizations that are covered in this bill.
Senator METZENBAUM. Well, how do you make that distinction?
How do you say they are not covered? What is the exclusionary
language?
Mr. O'MALLEY. The language in 501 (c) talks about groups which are
in the practice of identifying covert agents, the intent being to impair
the intelligence activities of the United States.
Senator METZENBAUM. I am sorry?
Mr. O'MALLEY. Section 501 (c) describes the type of group that is in
the business or practice of identifying covert agents with the intent to
impair intelligence activities in the United States.
Mr. KEUCH. If Mr. O'Malley would yield for a moment, also, Sena-
tor, the definition of covert agent in 506(b) says that: "at the time of
the disclosure, acting as an agent or informant to the foreign counter-
intelligence or foreign counterterrorism component of the FBI." That
would be limited to those organizations that were being investigated
that met the criteria of the Attorney General's foreign counterintelli-
gence guidelines. The types of domestic groups that you were citing in
your question simply would not be covered, because they would not fall
into the definition of covert agent.
I also agree with Mr. O'Malley's answer, too, that-
Senator METZENBAUM. Slow down, slow down, you are rolling a
little rapidly. Let us just go back. Let us assume that the FBI in-
filtrated Operation PUSH, which has taken $10,000 or more from
the Saudis, as I recollect. And let us assume that they are involved
in some kind of foreign intelligence activities-I do not know that
they are, and I am not suggesting that they are. Now, wouldn't this
legislation be applicable if the Operation PUSH
Mr. KEUCH. No, sir.
Mr. O'MALLEY. No, sir, it would not be applicable. And again, as
Mr. Keuch says, there is a clear delineation between that type of a
group-and I am not saying we have penetrated, or anything else, but
for the sake of your example-there is a clear delineation not only
within the FBI, but within the Department of Justice guidelines un-
der which we operate and under which there has been set up the
Office of Intelligence Policy and Review at the Department, that works
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very, very closely with us to make sure that there is no mixing be-
tween the two types of groups that we are talking about. And there
are also the two congressional Oversight Committees.
Senator METZENBAUM. Mr. O'Malley, you are saying that is the
case, but we know, and the FBI has done an excellent job in taking
a mea culpa plea that they have been involved in such activities in
the past.
Now, you have said that the language of this legislation is not ap-
plicable because it only has to do with foreign intelligence under
501(c) . But my question is : What if you concluded that that was part
of the foreign intelligence investigatory activity?
Mr. O'MALLEY. The FBI, Senator, cannot make that independent
conclusion. You would have to justify that with the Department of
Justice.
Senator METZENBAUM. But you are telling me what you would do.
I am asking you about the legislation. You are telling me we would
not do it, because we are not permitted to do it, and it is not within
our jurisdiction, and they do it, and we do not.
Mr. O'MALLEY. That is right.
Senator METZENBAUM. But we are drafting a piece of legislation.
And some of us think that you have done some things in the past that
you should not have done-and I am not blaming you for that, but no
less a person than William Webster has indicated that. Now, the next
Director may decide to go beyond the proper limit.
Mr. O'MALLEY. That is exactly what I am saying, Senator. There
were things that you are talking about which happened in the past,
and the situation as it exists today is a result of steps that have been
taken to prevent those occurrences from ever happening again.
Senator METZENBAUM. Well, let me show you the definition in this
bill. You are again leaning back and saying; It will not happen;
trust me.
Mr. O'MALLEY. I am not saying, Trust me, Senator. I am saying the
FBI no longer independently makes that judgment. We work very
closely with the Department of Justice on that issue now. We also
work very closely with the two Intelligence Oversight Committees. We
do not make that judgment any longer.
Senator METZENBAUM. Mr. O'Malley, what I am trying to say to you,
though, is this-
Mr. O'MALLEY. I understand what you are saying.
Senator METZENBAUM. You are saying; We do this. I am saying that
if J. Edgar Hoover came back from the grave and took over the FBI
again-he did not care what the laws of the land were. He ran his
own shop. And he did not care what the Intelligence Committee of the
Senate or the House had to say, because he was probably stronger than
they were.
Now you are saying to me: We cannot do it, because the way we
work is thus and so. I am saying to you that the definition of a covert
agent that is found in 506 (c) would seem to indicate that. in the ex-
ample that I gave you that you very well could use the language of
this law to prosecute the publication by an organization of FBI infil-
tration of the organization such as the one that I mentioned. I do not
mean by mentioning that organization to point a finger in any way or
to suggest any impropriety-but the fact is, you could prosecute.
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Mr. O'MALLEY. Senator, it would have to be more than just that the
Bureau decided, J. Edgar Hoover or whoever, decided, that this or-
ganization was a foreign directed or controlled organization, and
therefore, they infiltrated it and then there was disclosure. The statute,
I think, says a foreign counterintelligence operation of the Bureau.
That is an operation consistent with the Attorney General's guidelines
for foreign counterintelligence operations. It would not have to be the
FBI. It would have to be the Attorney General. And in truth, it would
have to be the Oversight Committees of the Congress, because those
guidelines are developed in consultation with those committees, are
maintained with those committees, and the rest. And if the particular
office of the FBI-and I am not going to say it is going to do that-
goes off on a frolicking detour of its own and infiltrates an organiza-
tion only because it believes subjectively that it is a foreign counter-
intelligence operation, that is not satisfactory. It has to be a foreign
counterintelligence operation of the Bureau. I assume that means a
proper counterintelligence operation for the Bureau, and that is one
consistent to the Attorney General's guidelines. And again, those At-
torney General guidelines are developed in conjunction and consulta-
tion with the Oversight Committees and any changes in those guide-
lines are promptly reported to the Oversight Committees. So if it was
not a proper foreign counterintelligence investigation, this bill would
not cover it, sir.
Senator METZENBAUM. Mr. Keuch, Mr. O'Malley, everything you
say is fine. But assuming that John Mitchell were the Attorney
General, assuming that J. Edgar Hoover were the FBI Director,
and assuming that he decided to infiltrate an Arab student group, an
Iranian student group, I am afraid that all of those guidelines would
be swept aside. What we need concern ourselves about, and that which
we are concerning ourselves about, has to do with the legislative pro-
posal before us, not your guidelines, and not the assurances you have
given us.
Mr. KEUCH. No, sir. My point is, the statute can only cover an
operation and an agent within an operation if it is a proper foreign
counterintelligence operation. Now, if what you mean is that future
Attorney Generals and future Directors may change those guidelines,
certainly they may, but they would do so and must do so with notice
to the Oversight Committees of the Congress. So you would have to
have a series of steps before the example you have raised would
come to be.
Senator METZENBAUM. Mr. Keuch, it is very possible to have clay of
and not live up to them. This Government does it every day of
the week, all over the Government.
Mr. KEUCH. Of course, sir. But my point is if they do not live up
to the guidelines, you cannot use this statute to prosecute. If it is not
a foreign counterintelligence operation of the FBI, sir, this definition
is not applicable, and therefore, the statute is not applicable.
Senator METZENBAUM. I drew blood from my friend
Senator SiMrsoN. Howard and I rise up-he rises up when I get
going and I rise up when he does. You know, one of the interesting
things to me, and I share it with my good colleague, I am new here-I
was elected in 1978-one of the most extraordinary things I witness
around here is the digging up of old stuff. It is fascinating to watch.
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And it matches horror stories, Howard, as we talked about one night
together, on television, but it is more than horror stories, because when
you enter the fray, then you look like you have embraced everything
that J. Edgar Hoover did, and I would not embrace a lot of that stuff.
and never would. I think it was a vast impingement upon civil rights
and normal sensitibilities. But the point of going back to hypotheticals
is what you do in the law business when you do not know what you
are doing. I 'remember practicing law for 20 years, and when I did not
know what to do with the witness, I would ask him a hypothetical,
because you can get them every time on a hypothetical, because you
can make it as romantic as you wish.
So I hope that we will stop the orgy of self-guilt and flagellation
that comes with whatever Mitchell did or whatever Hoover did, and
get down to the issue at hand today, and that is that we have the Levy
guidelines-and I do not know what guidelines you are referring to
when you speak of the Attorney General's guidelines; is that what you
are referring to by the guidelines?
Mr. O'MALLEY. A new set has been refined and issued.
Senator SIMPSON. They have been refined indeed, because that is
what we are trying to do with the FBI charter.
Mr. KEUCH. Yes, sir.
Senator SIMPSON. I hope we can come up with something, because
that is something I have been working intently on. But the Levy guide-
lines are there. They are for our use. There is not any question about
the oversight machinery that goes into effect when those guidelines are
going to be impinged, or changed, or shifted in any way.
I just do not see why the FBI agents and the CIA agents of the
eighties have to pay for the errors, omissions, and sins of those of the
fifties and sixties. That just is not reasonable, it is not productive, it is
not even fair. And so, in that situation, I would hope that we would
stick with the language-when everything else fails, read the bill. And
if you review the section on page 16, we omit, with this language : "who
is at the time of the disclosure acting as an agent of or informant to
the foreign counterintelligence or foreign counterterrorism compo-
-nents of the Federal Bureau of Investigation." That is what it says.
And I would ask the question, if I may, and I would ask that of you,
Mr. Keuch, if section 501 (c) is removed from this bill, do you not
agree that those who would seek to impair the legitimate intelligence
gathering activities would be very little restrained in their efforts by
just using (a) and (!b), because
Mr. KEUCH. Absolutely. The removal of 501 (c) from the bill, I think,
would make it an unnecessary exercise.
Senator SIMPSON. To me, it seems if we remove (c), we simply have
the (a)'s and the (b)'s running to (c), to tell (c) what happens, so
that the (a)'s and (b)'s get off the hook, and that seems goofy to me.
Mr. KEUCH. If you removed 501(c), Senator, you would not have
Mr. Marks writing that article. You would have Mr. Marks giving the
information to someone else to write the article, because, of course, he
would fall within the prohibitions of (a) and (b), because they are
people who are either Government employees or, in some other position
of trust, received the information. That is right. You would not-it is
true that (a) and (b) may point to the most-perhaps in my mind,
because they are individuals who got information in a position of trust,
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and they were doing two things. Not only are they hurting their coun-
try's national security, but they are going back on their-it is a breach
of trust. Perhaps those are, in my personal view, the most egregious
situations. But if you remove (c), I think you have made this exercise
a nullity, because you have removed any chance of reaching the conduit.
for the information. And it is the conduit that is going to be in the
public and is going to be making the disclosure, as is clear. That is
what has been happening over the past few years.
Senator SIMPSON. I am about to run down, but I was fascinated at
the relation of the testimony that will be presented, or is here, with
regard to Mr. Abrams and the citation of the six cases. We are talking
about an exhaustive analysis of those cases, and all I see here in his
statement, and totally off-point, it just simply says that: "While
Government may try to keep information secret, the disclosure of
information which has already become public may not later be crimi-
nally punished." Well, who would not agree with that, but that is not
what we are talking about here.
Mr. KEUCH. And of course, Senator, this bill does have a require-
ment that the individual, when he makes the disclosure, must know
that the U.S. Government is taking steps to protect the information,
and again, because of the definition, covert agent requires that the
information is classified information.
And this concept of getting information of the public, and that
somehow, you cannot reach into that at all-one of the examples I
have used in speeches and discussions I have had is if, during a war-
time period, you had a series of enemy agents sitting in New York
harbor, Miami harbor, New Orleans, and San Francisco, sitting out in
public view with binoculars and counting the troopships that were
leaving, now, that is information in the public domain. They then call
up their friend back in New York, and he sits down and makes out a
cable to the enemy and says : These are the troop movements as of Au-
gust 22 of this day. All that information is in the public domain. I do
not think it should be protected information, protected activities.
So to just raise the red flag that this is out of the public domain is
only part of the equation and only part of the question. And again, we
believe that this legislation is carefully drafted. It says that the in-
dividual making the disclosure must know that the information he is
about to disclose will reveal the covert agent. He must know that we
are making efforts to protect that information, and the covert agent
information must in fact be classified information.
Now, whether you use a rosetta stone that you have developed,
through aggressive reporting or aggressive investigation, or because
it has been given to you by somebody who is a disgruntled individual,
willing to breach his trust and go to 17 public documents and come up
with the name of a covert agent and reveal that covert agent, and,
therefore, put that man or woman into jeopardy, his family into jeop-
ardy, or if nothing else but affect our intelligence operations, I simply
do not think that kind of activity is protected by the first amendment.
Justice Goldberg said the Constitution is not a suicide pact, and I
agree with him.
Senator SIMPSON. Well, there is always one other interesting thing
that has to do with the first amendment, but you bring that up, and
you may be impaled on the shaft of the media, and that is simply that
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61
newspapers and the media are still in business, as are other businesses,
to make money. And I hate to bring that up from time to time, but I
always do dwell on it lightly just to say that that is the case.
Mr. KEUGH. Senator, I had negotiations with a newsman who I will
not identify about a story that he said he was going to run, and I in-
dicated that I did not know the truth of the story, I did not know the
facts, and I would try to find out and tell him as much as I could. But
I was concerned that if he went with the story as it was presently
framed, lie could put a person's life in jeopardy, someone who was a
very highly placed agent. His response to me was : "Sir, you have to
understand, the newspaper business is a competitive business."
Now, I am not going to say that that is every newsman I have ever
dealt with. It is a very, very, very, very small percentage. But that
problem does exist.
And again, I think one of the things I have not heard in the debate
about the balancing act is if we are talking about balancing interest,
the public interest in protecting our intelligence operations and our
covert agents against the public disclosure, I think public disclosure
is appropriate of unwise and illegal activities. There should be the
fullest public debate about what we are doing with our intelligence
operations.
The Oversight Committees of this Congress, the charter legisla-
tion, all these are attempts to struggle within our democratic system
with the two needs of most open discussion of our policies and princi-
ples, and on the other hand, protecting our national security.
I have yet to hear a very solid reason saying what is the great public
interest that overweighs everything else in the seriatum disclosure of
individuals who are working their damnedest for their country, day
after day, in conditions where most of the people who are making
those disclosures would never put themselves in. I simply do not know
what that public interest is.
And again, I would say the debate can be had, the criticism can be
had, the disclosure of illegality can be had, and it can be done without
the seriatum disclosure of individuals working for their country.
Senator SiMrsox. Well, I thank you for your testimony. You are
very forceful in all the materials I have gone through and heard with
my work with the FBI Charter, and I thank the majority staff and
the minority staff of this committee for their assistance. Yours is the
most pungent and clear-some of it has become very plastic through-
out all this and is just read off-and yours has a ring* to it that sounds
to me like it has a great deal of experience backing it up. I thank you
for it, and I thank you for your indulgence, Mr. Chairman.
I guess the final comment, without lapsing into philosophy, is that
you do see some tremendously responsible members of the electronics
and print media in this community ; they are, indeed. However, they
are just like Congressmen. Some of them are less responsible than
others. They are just like lawyers, some of whom are less responsible
than others. I guess I had good training before I got here. I was a
lawyer, and that was described as the lowest form of human activity.
Then, I got here, and there is a lower form, perhaps, and that is Con-
gress. But it seems to me that we are missing the boat when one mem-
ber of society says that they are not prey to those same type of de-
ficiencies. And there are irresponsible members of the electronic and
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print media who injure their more responsible brethren, just as we
get injured by our less responsible brethren. And when you try to
draw that distinction, however, in this place, in this arena, you get
into the first amendment, and you are likely to get your shorts torn
off in that process.
Mr. KEUCH. Editorially, at least.
Senator SiMrsoN. Yes.
Senator METZENBnUM. Thank you very much, Senator Simpson, for
your comments.
I would like to ask Mr. Keuch to respond with one of his more pun-
gent responses-generally, I am told that pungent means smelly, I
do not ask it in that term, but I just was picking up Senator Simpson's
statement
Mr. KEUcri. That has been editorialized by cartoon recently, too,
Senator.
Senator METZENBnuM. Now, you answered Senator Simpson, and
you said in unequivocal terms that without 501 (c), that this legisla-
tion would have no value; is that right?
Mr. KEUCH. Yes, sir.
"~~Senator METZENBnUM. Then, how do you explain the fact that 3 or 4
months ago, on June 24, 1980, you testified before the Senate Select
Committee on Intelligence, you presented them with a bill, and you
had no 501 (c) in it, and you specifically had in your bill only the
requirement that the disclosure would be based on classified infor-
mation. Section 502 (a) of your bill says :
Whoever having been an employee of the U.S. Government with access to
information revealing the identities of covert agents, knowingly discloses in-
formation that correctly identifies another person as a covert agent or attempts
to do so, is guilty of an offense.
Now, what I am saying to you is this: 4 months ago 501(c) was not
that important. How do you come before us today and tell us that
without it, the bill is not worth a damn?
Mr. KEUCH. I am sorry, Senator. Four months ago, we proposed a
Department of Justice bill, which at that time was the administra-
tion bill. That bill did have a section that would cover individuals in
the public domain. That section says whoever. It does not say whoever
as received that information in a position of trust, or has access to
classified information. There was a different formulation. We sought
to limit the applicability of the statute by providing that the individ-
ual must know that he was disclosing classified information.
As I have explained in my testimony before the House subcom-
inittee, two or three times, it became very clear in the various intel-
ligence committees during the development of this legislation that the
administration bill simply did not have support.
Let me again emphasize that the administration bill had a section
VO, in it that would cover anybody in the public sector. It was not limited,
as (a) and (b) are, to individuals who
Senator METZENBnuM. It was only classified information.
Mr. KEUCI. Absolutely. That was the formulation we reached.
Senator METZENBnUM. And you just said to Senator Simpson this
bill is not worth anything without that section in it.
Mr. KEUCx. No, no, sir. I said 501 (c) is the section that reaches the
conduit. It is the section that reaches those people who were not prior
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employees of the Federal Government. And when I was responding
to Senator Simpson, I assumed ;that was his question, and that is the
question I answered.
If 501 (c) were taken out of this bill, then all it would reach would
be former Government employees or people who had classified informa-
tion who were in positions of trust. You might have those, as I said,
who in my personal view are the most egregious actors in this ball
game, but you would not reach the people in the public sector. The
Department of Justice formulation, the administration bill, did in
fact reach people in the public sector, in a different way.
Now, again, during the development of this legislation, it was clear
that the Department of Justice, the administration bill, did not have
the support of the Intelligence Committees, for some very well-ex-
pressed reasons, I think. After consultation within the Department
and after consultation with the CIA, we talked to the staffs of the
various committees-in fact, I had a joint meeting with representatives
from the House Intelligence Committee staff, the Senate Intelligence
Committee staff, myself, various officers in the Department of
Justice-and the present formulation in S. 2216 was developed. As I
have indicated in my testimony, this is another way, we think, of
meeting the constitutional standards.
So it was not that I testified before that 501 (c) was unimportant.
What I thought Senator Simpson was asking me was the full reach of
501(c), which is intended to reach those people in the public domain.
The administration bill had that. It was a different formulation.
Senator METZENBAUM. He was not asking you that at all. He was
asking if this bill had any value without 501(c), and you said it would
not have any value without it.
Mr. KEUCH. Of course, absolutely, sir.
Senator METZENBAUM. And yet you came before the Congress with
your bill, and you did not even have anything close to that section.
Mr. KEUCH. That is not correct, Senator.
Senator METZENBAUM. Well, where do you have it? Where do you
have anything in that original bill about unclassified information, ex-
cept with respect to a former employee of the Government?
Mr. KEUCH. I am sorry, Senator. If you are limiting that to un-
classified information, we have no dispute. All I am trying to tell you
is that I assumed Senator Simpson's question was 501(c), the im-
portance of that section-as I tried to indicate in my answer-was not
about the unclassified or classified difference. It was the fact that it was
the section of the bill that reached people in the public ; that is, it was
not limited in its terms, as (a) and (b) are, to those individuals who
had positions of trust. The administration bill had a comparable
section, as far as the coverage of individuals in the public domain. I
quite agree with you, that that bill was based on the concept of the dis-
closure of classified information. That was our formulation to meet
the constitutional issue.
When it became clear that bill did not have sufficient votes in the
Senate or tre House committees to be passed, we still felt the bill was
important, and we came up with a different formulation, and that
is the present formulation in 2216. That section, 501(c) , also 'reaches
the public domain.
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If I misunderstood the Senator's questions, I am sorry. What I
meant is that if 501(c) was eliminated from this bill, my concern
would be that it would eliminate coverage of those people in the pub-
lic sector, and that would make the bill, in my judgment, Senator, a
nullity, because you would not be able to reach the conduits. You
would only have the continual coverage of 501(a) and (b), and that
simply, we do not think, is what this bill should reach.
Senator SIMPsoN. Mr. Chairman, there is one person here who might
clarify, and that is me. I asked the question. Let us just review the
question I asked, so there will not be any confusion as to what is Simp-
son saying. Here is what it was : If section 501 (c) is removed from
the bill, do you not agree that those who seek to impair legitimate
intelligence activities would be very little restrained in their efforts?
That was my question.
Senator METZENBAUM. I agreed that that was the question, and his
answer was yes. And I am saying that when he first appeared before
the Congress, he did not have anything close to 501(c) in the bill.
Mr. KEUCH. I am sorry, Senator, I did.
Senator METZENBAUM. Well, where is it?
Mr. KEUCH. Senator, I will have to get it. This bill has been through
so many versions. I am telling you that the Department of Justice
bill
Senator METZENBAUM. I am not saying 501 (c) is wrong.
Mr. KEUCH. I am not either.
Senator METZENBAUM. All I am saying is that your position has
changed, and your response to Senator Simpson is an indication that
the bill has to have that section in it, and yet, when you came to Con-
gress originally, you did not have it in, because you did not have any-
thing in about unclassified information except with respect to agents
of the Government.
Mr. KEUCH. Senator, it is the old debate issue. If I let you form the
issues that we are going to debate on, you are going to win. I did not
say a word about-in answer to Senator Simpson's question-I did
not take his question of classified or unclassified.
The importance of classified and unclassified is they are two differ-
ent formulations of reaching the same result-that is, reaching those
people in the public domain. The Department of Justice/administra-
tion bill, section 802(b) -the only thing I do not have is 802(b), and
I will provide it for the committee I am sorry, it is 801(a)-it says:
'Whoever knowingly discloses information that correctly identifies
another person as a covert agent * * *." Now, it goes on to say and I
agree with you that that information must be classified information.
Senator METZENBAUM. That is right.
Mr. KErcIi. Die response to Senator Simpson's crnestion was based
on the concept that if you take away from this bill any provision
reaching those individuals in the public domain-that, is, those indi-
viduals who have not obtained the information in a position of trust,
as 501 (a) and (b) do-that the bill would be a nullity.
The Department of Justice formulation, the administration hill, is
one of the ways we thomrht it was possible to meet the constitutional
problems in this area. Again, that did not have sufficient support in
the House and Senate committees, and we then drafted what is now
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S. 2216, which again, we feel, is a different way, but is a way of meet-
ing constitutional concerns.
I do not think I have changed my position, Senator, except that we
have changed the formulation.
Senator METZEDiBAUM. With respect to classified as against unclassi-
fied information: Have you changed your position on that?
Mr. KFucif. Absolutely, Senator. That was not the question Senator
Simpson asked.
What we have done, is changed the formulation of the two bills. The
earlier versions of the bill did not have all the limitations that this
bill now has. It does not have the pattern of activities language, it does
not have the fact that the individual knew about that we are taking
steps to protect, a number of things.
We felt that this formulation is equally a constitutional way to
meet the problem. We certainly felt the Department of Justice formu-
lation was constitutional, or we would not have submitted it to the
Congresss, Senator. And certainly we have changed formulations.
But Senator Simpson's question, I thought, asked me whether 501
(c) was necessary. My answer to that question is yes, and it remains
yes. And I do not think that is a change in my position.
Senator MRTZEyBAuM. Thank you very much, members of the panel.
[The prepared statements of Messrs. Carlucci, Keuch, and O'Malley
follow:]
I want to thank you and the other distinguished Members of this Committee
for the opportunity to discuss legislation which I consider to be urgently needed
and vital to the future success of our Country's foreign intelligence collection
efforts.
Your August 22 letter inviting me to appear today expresses support for our
need to protect our personnel. I sincerely appreciate that. Your letter also-
understandably-raises the question whether the constitutional issues posed
by the proposed legislative solutions-S. 2216 and H.A. 5615-have been fully
considered.
I'd like to address both issues.
No one appears to be raising any question as to the need, advisability and con-
stitutional justification for the provisions in these two bills that impose penal-
ties on those persons, such as Agency employees and former employees, who
have had authorized access to classified information for unauthorized disclosures
of information revealing the identities of undercover officers and agents. The
controversial aspect is the other portion of the two bills, under which, in ex-
tremely limited and carefully defined circumstances, criminal liability can
attach to a person who has made such disclosures without the need for the
Government to prove that the disclosure was derived from classified information.
I will direct my testimony today to this latter provision.
First, on the need for this legislation : This subject has been addressed re-
peatedly in hearings held by the intelligence committees of both Houses. The
strong support shown by the Members of those committees for identities legis-
lation that goes beyond disclosure made by employees and former employees
attests fully to the fact that the need has been understood by those in the best
position to assess it. Let me, nonetheless, briefly describe the situation that
these bills are intended to confront.
There exists today a small and apparently interrelated coterie of Americans
who have openly devoted themselves to the destruction of certain of the Nation's
authorized institutions of government, namely, the foreign intelligence agencies.
This group includes a small number of renegade former CIA employees, such
as Philip Agee, and a larger group of Americans who have capitalized on dis-
closures of classified information made in the past by such renegade former
employees.
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This group has engaged in a course of action openly and avowedly undertaken
in order to destroy the Nation's intelligence-gathering capability through the
medium of exposing as many undercover intelligence officers and assets as possi-
ble. The perpetrators of these disclosures understand correctly that secrecy is
the life blood of an intelligence organization and that disclosures of undercover
identities can disrupt, discredit and-they hope-even ultimately destroy an
agency such as the CIA. The two principal organs of such exposure have been
a series of books written and edited by these individuals and a publication,
Covert Action Information Bulletin, published here in Washington, D.C. These
have disclosed cumulatively approximately 1,500`1,600 names, many correct and
many incorrect.
In addition, persons such as Agee and Louis Wolf, one of the editors of
Covert Action Information Bulletin, have traveled to various foreign countries to
carry on a campaign dedicated to stirring up local antagonism to U.S. officials
through what appears to me to be only thinly veiled incitements to violence. The
tragic results of this activity are well known. Five years ago Richard Welch was
murdered in Athens, Greece. Mr. Welch was first alleged to be CIA Chief of
Station, Lima, Peru, in the 1974-75 winter edition of Counterspy. On 25 Novem-
ber 1975 the Athens Daily News printed a letter to the editor in which a number
of U.S. Government employees-including Mr. Welch-were alleged to be CIA
officers. Included in that article were Mr. Welch's Athens home address and
telephone number. Less than a month after the article appeared in the Athens
Daily News, Mr. Welch was brutally gunned down in front of his home. A few
weeks ago only luck intervened to prevent the death of the young daughter of a
U.S. citizen employed by the U.S. Embassy in Jamaica whose house was shot
up only days after Mr. Wolf appeared in Jamaica and at a highly publicized
news conference gave the names, addresses, telephone numbers, and license
plate numbers and descriptions of the cars of U.S. Government employees whom
lie alleged to be CIA officers.
I think it unnecessary to go into detail about the adverse effects this be-
havior is having on the work of the Nation's intelligence agencies. Simply put,
our officers willingly have accepted the risks necessarily inherent in their
taxing and dangerous occupation. They have not accepted the risk of being
stabbed in the back by their fellow countrymen and of being left unprotected
by their Nation's Government. The failure of the Congress to act so far has had
a demoralizing effect. Refusal to enact effective legislation in the face of most
recent developments would be incomprehensible to them. I stress the word
"effective." Everyone who has any familiarity with this problem knows full
well that a criminal statute limited only to disclosures made by employees and
former employees would not provide the kind of relief we need. Enactment of
such a statute would be little more than a misrepresentation to the public and
a cruel disappointment to our personnel.
A second impact that should be obvious is on our relations with cooperating
foreign governments and sources of intelligence. The bottom line is that the
failure of the U.S. to take any effective action with respect to these hostile
activities of our own citizens discredits us in the eyes of the world and seriously
impairs our ability to convince indispensable sources of intelligence and assist-
ance that we can protect them.
Let me turn now to the issues that have been raised regarding the policy ad-
visability and constitutional status of the controversial portions of these bill.',- I
would like to make an introductory comment in this regard. I have seen number-
less discussions of the constitutional rights of Messrs. Agee and Wolf and coin-
pany, but almost nothing as to the constitutional implications of what they are
trying to do. Their purpose is no less than. by direct action, to destroy institu-
tions of Government that our constitutional authorities, the President and the
Congress, have authorized to exist and operate. They are taking the law into
their own hands. Nothing could be more subversive of our constitutional system
of government than to permit a disgruntled minority of citizens freely to thwart
the will of the majority. I recognize the great importance of the First Aumend-
ment, but I have never understood that the First Amendment is the entire ('ou-
stitution of the United States and I suggest to this Committee-as I uuder,taud
the Supreme Court's interpretation of the First Amendment actually to he-
that First Amendment considerations must be balanced against other compelling
constitutional requirements, including the inherent constitutional right of the
people of this country to have an effective defense against external ag:Cre.~sion.
a defense that necessitates a working intelligence system.
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Now I would like to address a key factual element in this situation that sees.
to be widely misunderstood. There is no unclassified document that identity
undercover employees or agents of the CIA. Neither the House nor the Senate
version of this legislation would purport to criminalize the mere disclosure
of an identity that had been acknowledged by the U.S. Government in any such
document. It is claimed by some opponents of these bills that the activity on
which they would impact consists merely of picking information out of certain
unclassified publications in which the U.S. Government through carelessness has
allowed the names of CIA officers to be revealed as such. This is simply nonsense.
You should be aware of two important facts in this regard :
(1) It is certainly true that certain State Department publications, such as
the Biographic Register (which used to be publicly available, but no longer is),
contained information that in some cases gave clues to the identity of undercover
CIA officers, not to the general public but only to those persons who by virtue of
access to classified information knew how CIA cover arrangements worked. Sev-
eral of these people--faithless Government employees-violated applicable
law, regulation and secrecy agreements and disclosed publicly enough informa-
tion about CIA cover arrangements to enable others to make some use of the
Biographic Register and similar documents. These deliberate breaches of secrecy
can in no way be equated to carelessness on the part of the U.S. Government. In
any event, even the Biographic Register does not provide a direct and accurate
indicator to CIA cover arrangements ; it simply provides clues which in some
cases are accurate and in others are misleading.
2. An even more key point is that the authors of the Dirty Work books and
the Covert Action Information bulletin do not themselves purport to rely solely
on such documents. I am attaching to my testimony and have distributed for
your use copies of a portion of the "Who's Who" section of the most recent
of these books Dirty Work II: CIA in Africa. The entire section is 193 pages
long and lists hundreds of names of alleged CIA officers. The authors indicate
their sources for each entry. I ask you to examine a representative sample of
these. You will find again and again references to numerous documentary
sources and to such things as "Department of State sources," "Casablanca Con-
sulate General sources," "Rome Embassy sources," and the like. In short, if we
take these people at their own word, they are engaged in an elaborate and
sophisticated operation involving the collating of information from multiple
documentary sources and the penetration of U.S. official establishments. There
is no reason why, in addition to cultivating sources in the State Department,
embassies and consulates, they cannot engage in physical surveillance, electronic
surveillance abroad or any other form of investigative technique. Unlike the
intelligence agencies, they have no legal constraints on the use of physical sur-
veillance and no constraints on any investigation they may conduct of U.S.
persons abroad. Basically what is described in Dirty Work II is very different
from the kind of counterintelligence operations that one might expect a hostile
intelligence service to mount against us.
I will defer to the Justice Department representative and the other witnesses
to discuss wirh you the constitutional implications of these facts. It is my under-
standing, however, that from a constitutional point of view it is of considerable
significance that the activities that these bills attempt to deal with are a sys.
tematic, purposeful job of uncovering identities and are conducted with a clear
understanding, evidenced by an express intent, that their effect will be to impair
or impede legitimate U.S. intelligence activities.
Some critics of this legislation have suggested that it would open up to prosecu?
tion any person who came across a classified intelligence identity, including a
journalist who exposed such an identity in the course of a legitimate story on
CIA activities or alleged CIA wrongdoings. This simply is not the case, as any
careful reading of either the Senate or the House version would demonstrate.
The version before you in the Senate requires that the actor be engaged in a
pattern of activities intended to identify and expose covert agents and with
reason to believe that such activities would impair or impede intelligence
activities of the United States. In short, the bill describes a very narrow category
of persons engaged in a crusade whose commonly recognizable effect is to destroy
intelligence activities in general and who further that purpose by doing much
more than merely restating that which is in the public domain. They are persons
who in effect engage in espionage against their Nation's intelligence agencies
and, whether wittingly or not, serve the purposes of our -Nation's enemies. I
cannot believe that it is any more unconstitutional to deal with this kind of
hostile action against the U.S. than to criminalize obscenity or to make it a crime
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to shout "fire" in a crowded theater. The Justice Department, which is charged
with protecting and upholding the Constitution, has studied this matter care.
fully and has concluded that this bill is constitutionally sound. Noted scholars,
including Yale Law Professor and former U.S. Solicitor General Robert Bork,
have reached the same conclusion.
A second canard about this legislation that I would like to lay to rest is that
it is unnecessary because anything that a private citizen can uncover can also
be uncovered by the KGB. Even if true, this observation is irrelevant. I ques-
tion its accuracy because, as Americans, the publishers of Covert Action Informa-
tion Bulletin probably have easier access to misguided or duped sources of in-
formation within Government agencies than would the KGB. But even if accu-
rate, the observation fails to take account of the fact that the purpose of our
cover in many places is not to fool the KGB but to protect our operations against
a variety of things. One is detection by local authorities. A second, in places
where our operations may be known to limited segments of the local government,
is to protect against political outcry which would occur if they were publicly
acknowledged or revealed. A third and increasingly important consideration
is to protect against terrorist attack such as that which caused the death of
Richard Welch and almost the death of Richard Kinsman and other U.S. Gov-
ernment employees in Jamaica.
Another widely misunderstood point is that there is no way to make all cover
arrangements of guaranteed impenetrability without giving up all operations at
the same time. Any cover arrangement must enable the undercover officer to
have access to appropriate targets. In addition, in the process of attempting to
obtain intelligence and recruit agents, an undercover officer necessarily at some
time exposes his true identity to a certain number of target individuals. He
hopes that his assessment of these targets has been correct and that there is
no security risk as a result, but it is impossible to be certain. In short, we can-
not guarantee perfect cover and at the same time assure our Executive Branch
and congressional masters that we will do an effective job of collecting intelli-
gence. What we can do is to achieve the best cover arrangements that are com-
patible with getting the job done, and we have made considerable strides in
improving cover arrangements and in attempting to repair the vulnerabilities
created by reprehensible disclosures of classified information by Government
employees. What the Congress can do is to protect us from the malicious and
deliberate acts of Americans who are bent on our destruction, acts that exacer-
bate the inherent difficulties present in our operating conditions overseas.
Mr. Chairman, I will not take any more of your time with my prepared
remarks, but I will be glad to answer any questions. I have the Agency's General
Counsel, Daniel Silver, with me to answer any questions the Committee may
have on the legal technicalities of these bills.
Attachment.
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ADAMS, DICK COMSTOCK
13 May 1929
1947-8
1948-51
1951-55
1954
1955
1955-56
8/64
Korea (of American parents)
Whitworth College
University of California
U.S. Army overseas
University of Virginia
George Washington University
U.S. Army
unspecified research
private experience
Christian Children's Fund
treasurer, office manager
Department of the Army
research analyst
international Cooperation Administration
Saigon, Vietnam (E)
assistant program economist
Seoul, Korea (E)
Attache &
political officer
Second Secretary &
political officer
4/67
as of 1/70-5/72 no entry in Department of State records
?5172 Department of State
Jakarta, Indonesia (E)
political officer
as of 11 /75 Dept. (EA)
as of 6/76 Cotonou, Benin (E)
cover position not known
(CIA Chief of Station)
BR 1974, 1969, 1964
FSL 8175, 6/72, 9/69, 7/64
Cotonou Diplomatic List 1976
Department of State Sources
,,This appointment began with the International Cooperation Administration, the
predecessor until 11/61 to the Agency for International Development.
AITKEN, ROBERT D.
14 Sep 1928 New Jersey
1946-47 U.S. Army overseas
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1951 LaSalle College BA
1951-52 Georgetown University
1952-57 Department of the Army
claims investigation officer
8/57 Department of State
Bangkok, Thailand (E)
public safety advisor
11! 9-5/61 Department of the Army
operations officer
5/61 Department of State
Benghazi, Libya (Office)
Attache &
political officer
9/61 Second Secretary
political officer
1 1 /63 Dept.
5/65
7/66 Dakar, Senegal (E)
political officer
(CIA Chief of Station)
10!68 Dept. (AF)
as of 6172-7/74 no entry in Department of State records
8/74 Department of State
Dar-es-Salaam, Tanzania (E)
First Secretary &
economic-commercial officer
(CIA Chief of Station)
as of 12/76 Dept. (AF)
Wife: Carol
Sources: BR 1971, 1967
FSL 8/75, 11/74, 2/72. 5/69. 5/67, 1/64, 7/61
Dar-es-Salaam Diplomatic & Consular Lists 1/76, 1/75
Dar-es-Salaam Embassy Source
Department of State Sources
ALBERT, FRANCIS L. Jr.
31 Jan 1925 California
1943-45 U.S. Army overseas
1947 Harvard University BA
1947-48 private experience
research organization
consultant
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1947-48
boys school
instructor
1947-48
Bcrlitz School of Languages
1950
University of North Carolina MA
1949-51
private experience
university instructor
1952-55
Department of Defense
political analyst
4/55
Department of State
Paris, France (E)
Attache &
political officer
R-4
7/56
R-5
9/59
4/62
9/62
Algiers, Algeria (E)
Attache &
political officer
(CIA Deputy Chief of Station)
Second Secretary &
political officer
4/65
5/65
Dept.
4/67
plans and programs officer
5/68
Darts-Salaam, Tanzania (E)
First Secretary &
economic-commercial officer
(CIA Chief of Station)
9/71
as of 2/73
Wife:
Dept. (AF)
no entry in Department of State records
Mary Swingle
Sources:
BR 1972, 1968
FSL 10172, 10111.9/68, 6165, 10/62, 1160, 10/55
Darts-Salaam Diplomatic & Consular Lists 1/71, 1/70
ALLOCCA, RICHARD
19 Dec 1944
4/71
Department of State
Kinshasa, Zaire (E)
Third Secretary &
political officer
R-7
R-6
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2/76
as of 10/77
as of 4/79
Wife:
Sources:
ANDERSON, CARL R.
24 Oct 1924
1942-45
1950
1952
1952-58
1952-53
1/58
6/60
1/61.9/62
1/65
as of 10/654/72
5/72
New Delhi, India (E)
Second Secretary
political officer
Mogadiscio, Somalia (E)
cover position not known
BR 1974
FSL 8/75. 11/74, 6/71
Mogadiscio Embassy Source
New Delhi Embassy Source
Kinshasa Diplomatic List 9/73
Department of State Sources
Massachusetts
U.S. Army
University of Georgia BA
University of Georgia MA
Department of the Army
area analyst
Vanderbilt University
Department of State
Calcutta, india (CG)
political officer
'ice-Consul &
political officer
Dept.
private experience
unspecified research organization
associate
Department of State
Khartoum, Sudan (E)
Attache &
political officer
Dept.
no entry in Department of State records
Department of State
Asmara. Ethiopia (CG)
political officer
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73
Who's Who 305
7/73 Addis Ababa, Ethoipia (E)
Second Secretary &
Political officer
as of 10/74 Dept. (ARA-LA)
Sources: BR 1974, 1964
FSL 6174, 10/73, 10/72.6/72, 6/65, 1/63, 1/61, 7/60, 4/58
Addis Ababa Diplomatic List 1174
ANDERSON, FRANK RAY
1 Feb 1942 Illinois
1959-62 U.S. Army overseas
1963-64 private experience
finance company
management trainee
1964-65 assistant training director
1965-66 marine supplies company
sales manager
1968 University of Illinois BA
1968-69 Department of Defense
research
Department of State
Beirut, Lebanon (E)
(FSI Field Language School)
detailed for Arabic language training S-6
Tripoli, Libya (E)
consular officer
5173 Second Secretary, Vice-Consul &
economic-commercial officer
5/74 Dept. (AF)
3/75 Sana'a, Yemen Arab Republic (E)
Second Secretary &
consular officer
2/76
5/77
Language:
Wife:
Sources:
Beirut, Lebanon (E)
Second Secretary & Consul
BR 1974
FS L 8/75. 10/71, i/70
Beirut Diplomatic List 4/78
Sanwa Diplomatic List 2/76
Tripoli Diplomatic List 2/73
Department of States Sources
R-6
R-5
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74
ANDERTON, JOHN G.
6 Sep 1917 California
1938 Princeton University BA
1938-1939 University of Grenoble
1939-40 private experience
steamship company clerk
1940-41 newspaper reporter
1941-46 U.S. Army overseas Major
2/47 Department of State
Dept.
4/47 Peking, China (C)
Vice-Consul
7/50 Dept.
1950-57 Department of the Army
foreign affairs officer
7/57 Department of State
Rabat, Morocco (E)
Attache A
political officer
(CIA Chief of Station)
8/57 First Secretary
8
political officer
(CIA Chief of Station)
11/60 Dept.
8/62 Algiers, Algeria (E)
political officer
(CIA Chief of Station)
9/62 Attache dt
political officer
(CI A Chief of Station)
12/65 Dept. (AF)
3/67 international economist
as of 9/67-7/71 no entry in Department of State records
8/71- Department of State
at least 1/73 Pretoria, South Africa (E)
Attache
(CIA Chief of Station)
BR 1967
FSL 5/67, 1/67, 10/62, 1/61, 10/57, 10/50, 7/47
Pretoria Diplomatic Lists 1/73. 1/72
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75
Who's Who 307
ASSURAS, DEMETRIOS C.
b. not known
5/77
Department of State
Dept.
Casablanca, Morocco (CG)
Consular Section
ATKINS, EDWIN FRANKLIN
Casablanca Consulate-General Source
Department of State Sources
15 Oct 1929
New York
1951
Harvard University BA
1951-54
Department of Defense
1/55
political analyst
Department of State
Cairo, Egypt (E)
political officer
R-6
7/56
R-7
2/59
R-6
10/59
Dept.
12160
(Foreign Service Institute)
4/62
Arabic language training
Baghdad, Iraq (L)
economic officer
Second Secretary &
economic officer
R-5
12/63
Dept.
1/65
S-3
1/66
S-2
6/68
Khartoum, Sudan (E)
rating
not known
10/69
political officer
(CIA Chief of Station
Dept. (EUR)
10170
Milan, Italy (CG)
consular officer
(CIA Chief of Base)
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2/76
6/78
as of 9/78
ATIPATER, JAMES L.
5 Feb 1932
1953
1953-55
1957
1957-59
1960
1961-63
1964-65
1965-67
10/67
5n2
9/73
7/77
as of 9/77
Rome, Italy (E)
consular officer
R-3
RU-3
Paris, France (E)
First Secretary
(CIA Co-Deputy Chief of Station)
Elaine Perry
BR 1974, 1970, 1967
FSL 8/75, 4/75, 6/74, 2/71, 9/68, 4/64, 10/61.4/59, 10/56, 4/55
Paris Diplomatic List 4/79
Rome Diplomatic List 8/73 (updated)
Rome Consular Lists 3/75, 3/74
Rome Embassy Source
Department of State Sources
North Carolina
North Carolina College BA
U.S. Army
University of Pennsylvania MA
U.S. Army overseas
no entry in Department of State records
private experience
teacher
university professor
Department of Commerce
Department of State
Dakar, Senegal (E)
Second Secretary &
political officer
Cotonou, Dahomey (E)
Second Secretary &
political officer
(CIA Chief of Station)
N'djamena, Chad (E)
cover position not known
(CIA Chief of Station)
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77
Who's Who 309
Language: French
Wife: Colette Huc
Sources: BR 1974
FSL8/75, 10/73, 10/70. 1/68
Cotonou Diplomatic List 1972
Dakar Diplomatic List 197I
Department of State Sources
***Dahomey achieved its independence in November 1975 and became Benin.
***BACON, GEORGE J.
b. not known
6/76
Department of State
Dept.
Kinshasa, Zaire (E)
telecoms
as of 12/78 Dept. (A/OC)
Sources: Kinshasa Embassy Sources
Department of State Sources
***Soon after receiving a medal at CIA Headquarters in reward for his work in Laos,
George Bacon III, an experienced CIA paramilitary officer well-known at Langley,
travelled to London to recruit mercenaries for Angola. Never having laid down his
guns, he also went to join the CIA's war, and in February 1976, died at the hands of
the MPLA. It is thought he and George J. Bacon were related.
BANE, HOWARD T.
5 August 1927 Virginia
1944-46 U.S. Navy overseas
1949-50 Department of State
Dept.
clerk
1950-51 drafting officer
1951 Georgetown University BA
1951-55 Department of the Army
research analyst
6/55 Department of State
Bangkok Thailand (E)
Assistant Attache &
political officer
7/56
1/57 Second Secretary & Vice-Consul
7/58 Dept.
R-5
R-6
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78
310 Who's Who
New Delhi, India (E)
Second Secretary &
political officer
3/60
6/62 Dept.
7/64 Accra, Ghana (E)
political officer
(CIA Chief of Station)
8/67 Dept. (AF)
5/68
8/69 Nairobi, Kenya (E)
First Secretary (Political)
political officer
(CIA Chief of Station)
as of 6/74 The Hague, Netherlands (E)
Attache
(CIA Chief of Station)
as of 3/76.3/78 no entry in Department of State records
as of 4/78 Central Intelligence Agency
Chief, Office on Terrorism
Sources: BR 1973,1957
FSL 6/74, 1170, 9/69, 10164, 1/63, 10159, 10/58.7/55
The Hague Diplomatic Lists 2176, 7/75, 6174
Nairobi Diplomatic Lists 3/73, 2172
Central Intelligence Agency Source
'BEAM, JOHN C.
as of 1/79:
21, rue General Laperrine, El-Biar
Algiers, Algeria
78-24-51
25 Mar 1935 Montana
1956 Montana State University BA
1956-59 U.S. Army overseas
1960-65 private experience
foreign trade consultant
1965-67 Department of Commerce
investment specialist
5/67 Department of State
Rabat, Morocco (E)
consular officer
1/70 Dept. (AF)
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79
Who's Who 311
Bujumbura, Burundi (E)
political officer
(CIA Chief of Station)
political-economic officer
(CIA Chief of Station)
4/74
7/74
Rabat. Morocco (E)
First Secretary fi
economic-commercial officer
(CIA Deputy Chief of Station)
Algiers. Algeria (E)
cover position not known
(CIA Chief of Station)
5/77
RU-4
as of 8/78
First Secretary (Economic-Commercial Affairs)
(CIA Chief of Station)
Wife: Josephine Brosnahan
Sources: BR 1974
FSL 8175, 11/74. 10171.5/70, 9/67
Algiers Diplomatic Lists 1979, 1978
Rabat Diplomatic List 1974
Department of State Sources
"'Though Beam's middle name is not known at this time. knowledgeable sources in
Algiers report that recently, a First Secretary at the U.S. Embassy has on occasion
been using the name "John Cooke." It may or may not be the same person.
BECK, WILLIAM GRAN-VILLE
b. not known
as of 11/77 Department of State
Nouakchott, Mauritania (E) rating
? Second Secretary & Consul not known
(CIA Chief of Station)
as of 4/79 Second Secretary, Consul &
political officer
(CIA Chief of Station)
Sources: Nouakchott Diplomatic List 1979
Nouakchott Embassy Source
Department of State Sources
L,-iRENS, CHARLES EUGENE
I Sep 1925 Washington. D.C.
1943-46 U.S. Merchant Marine
1951 University of North Carolina BS
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312 Who's Who
1952 private experience
manufacturing company
labor relations trainee
1952-54 U.S. Army
1955 private experience
advertising company
contact man
1955 Department of the Army
administrative assistant
1955 George Washington University
10155 Department of State
Dept.
clerk S-12
11155 Rangoon, Burma (E)
cover position not ascertainable
7/57 S-l1
Department of the Army
plans officer
7/60 Department of State
Dept.
detailed to Foreign Service Institute R-7
4/61 Surabaya, Indonesia (C)
political officer
5/61 Vice-Consul &
political officer
3/63
12/63 Dept.
7/65 Dar-es-Salaam, Tanzania (E)
Attache, Vice-Consul &
consular officer
10/65 Second Secretary, Vice-Consul &
consular officer
5/66 R-S
5/68 R-4
8/69 Ligos, Nigeria (E)
Second Secretary, Consul &
political officer
as of 10/72 Dept. (AF)
as of 2/73-12/74 no entry in Department of State records
1/75 Department of Stale
Khartoum, Sudan (E)
political officer R-3
(CIA Chief of Station)
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81
Who's Who
313
as of 12/78
First Secretary
(CIA Chief of Station)
Dept.
Wife:
Sources:
BEHRENS, JOHN FREDERICK
as of 1/79:
Plot 2218, 14 Nsumbu Road
Lusaka, Zambia
50857
BR 1972, 1968
FSL 8/75.4/75, 10/72, 9/69. 10/65, 4/64, 7/61
Khartoum Diplomatic List I/78
Lagos Diplomatic & Consular Lists 5/72, 1/71
8 Oct 1931 Iowa
1951-53 U.S. Army
1954-57 Department of the Army
radio technician
Department of State
Manila, Philippines (E)
communications assistant
'3/60
12/62-5/66
6/66
Damascus, United Arab Republic (CG)
communications assistant S-10
Department of the Army
communications technician
Department of State
New Delhi, India (E)
telecoms supervisor
as of 5/68 telecoms officer
9/68-10/71 Department of the Army
communications technician
Department of state
Lagos, Nigeria (E)
telecoms officer
as of 1 IN Dept. (AF)
as of 4/75-6/78 no entry in Department of State records
as of 7/78 Department of State
Lusaka, Zambia (E)
telecoms support officer
(telecoms chief)
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82
314 Who's Who
Sources: BR 1974
FSL 11/74, 2/72, 5/70, 9168, 1/67
Lusaka Diplomatic List 1179
Lusaka Embassy Source
Department of State Sources
?"The United Arab Republic became the Syrian Arab Republic in October 1961, and
the Consulate General was upgraded to Embassy Status.
BENEDETT1, ROBERT A.
24 Dec 1942 Massachusetts
1964 Middlebury College BA
1965 Duke University MA
1965-67 private experience
instructor
1967-71 teacher-tutor
9/71 Department of State
Dept.
projects officer
1/74 Kinshasa. Zaire (E)
Second Secretary &
political officer
as of 10/77 Lusaka, Zambia (E)
cover position not known
9/78 Gaborone, Botswana (E)
consular officer
(CIA Chief of Station)
Wife: Sallie Gorczakoski
BR 1974
FSL 8/75, 2/74
Kinshasa Diplomatic List 10/74
Kinshasa Embassy Sources
Department of State Sources
"BENZ,SHELDON W.
3 Jan 1927 Pennsylvania
1945-46 U.S. Air Force overseas
1947-49 private experience
salesman
1950 not ascertainable
1951 private experience
manufacturing firms
assembler
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Who's Who 315
1951-68 unspecified government agency
communications officer
9/68 Department of State
Manila, Philippines (E)
telecoms specialist S-S
as of 5)70 telcoms officer S-4
as of 10/71 Dept. (EA)
as of 2/72-5/74 no entry in Department of State records
6/74 Department of State
Addis Ababa, Ethiopia (E)
telecoms officer
(telecoms chief)
as of 11/77 Dept. (A/OC)
Wife: Margaret
Sources: BR 1974
FSL 8/75, 6/74. 10/71, 1/69
Addis Ababa Embassy Source
Department of State Sources
??*Growing out of his CIA training and experience, Benz is an amateur radio operator
licensed by the Federal Communications Commission.
BERGER, MICHAEL JAY
5 Oct 1934 New York
1956 Cornell University BA
1956-57 Columbia University Graduate School
of Business Administration
1957-58 U.S. Army overseas
1958-59 private experience
manufacturing firm
sales management assistant
1959-60 American University
1959-60 private experience
research office
research associate
1960-62 Department of the Army
research analyst
3/62 Department of State
Montevideo, Uruguay (E)
Assistant Attache
6/64 Santo Domingo. Dominican Republic (E)
Assistant Attache &
political officer
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84
316 Who's Who
9/64 Attache &
political officer
1966-69 Department of Defense
administrative officer
11/69 Department of State
Dept.
foreign affairs officer
1970-74 no entry in Department of State records
as of 11/74 Department of State
Paris, France (E)
Regional Reports Office
8/75 Yaounde, Cameroon (E)
political-economic officer
(CIA Chief of Station)
as of 5/76 ? First Secretary
(CIA Chief of Station)
as of 1/78 Dept. (AF)
Wife: Ema Garcia
Sources: BR 1970. 1966
FSL 8/75, 10/65, 7/64, 7/62
Yaounde Diplomatic Lists 10/76, 5/76
Paris Embassy Source
Department of State Sources
BERGIN, MARTIN J. Jr.
25 Mar 1919 New York
1941 St. Peter's College BA
1941-46 U.S. Army overseas Captain
1947-48 private experience
law office
historical researcher
1948 Columbia University MIA
1948-51 Economic Cooperation Administration
Paris, France
research analyst
1951-54 Library of Congress
research analyst
6/54 Department of State'
Teheran. Iran (E)
Assistant Attache
7/57
as of 1/58 Assistant Attache &
political officer
S-7
S-6
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Who's Who
7/59 Dept.
10/59
3/63
'"6/63 Usumbura, Burundi (E)
Assistant Attache &
political officer
(CIA Chief of Station)
10/63 Second Secretary, Consul &
political officer
(CIA Chief of Station)
10/65 Dept. (AF)
4/67 . plans & programs officer
7/71 Dakar, Senegal (E)
First Secretary &
international relations officer
(CIA Chief of Station)
9/73 Abidjan. Ivory Coast (E)
political officer
(CIA Chief of Station)
as of 12/75 Dept. (AF)
Wife: Nicole Jachiet
Sources: BR 1974, 1961-62
FSL8/75, 10/73, 10/71, 10/63, 10/591/58, 10/54
Dakar Diplomatic List 1/72
Department of State Source
"'Usumbura became Bujumbura in 1964.
BETTS, LUCELOUS, Jr.
b. not known
as of 6/73
Department of State
Kampala, Uganda (E)
communications-records assistant
as of 1/74-6177 no entry in Department of State records
as of 2/77 Department of State
Kinshasa, Zaire (E)
telecoms
R-5
R-4
as of 5/79 Dept. (A/OC)
Sources: FSL 2/74, 6/73
Kinshasa Embassy Source
Department of State Sources
"'Before this date. Betts was a bona fide State Department employee, but then joined
the CIA,
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86
318 Who's Who
BLEAM, DENNIS L.
21 Mar 1939 Pennsylvania
1955-61 private experience
manufacturing company
shipping clerk, packer
1%1 Moravian College BS
1962-64 private experience
manufacturing company
accountant
1962-63 U.S. Army
1965-69 Department of the Army
clerk
3/69 Department of State
Nairobi, Kenya (E)
political section clerk
6/71 Kinshasa, Zaire (E)
political section clerk
as of 6/72
as of 9/74 Dept. (AF)
as of 10/75 Geneva, Switzerland (M)
Attache dt
SPA
Wife: Shahnaz Meshkin
Sources: BR 1974
FSL 6/74, 9/69
Geneva Diplomatic Lists 1/76, 10175
Geneva Mission Source
Department of State Source
BORGEL, JACQUELINE J.
b. not known
as of 12/76
Department of State
Nairobi. Kenya (E) rating
secretary not known
Pretoria, South Africa (E)
secretary (Political Office)
(secretary to CIA Chief of Station)
Nairobi Embassy Source
Pretoria Embassy Source
Department of State Source
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BRANT, ERNEST B.
4 Dec 1942 Illinois
1962-68 private experience
aircraft manufacturing firm
chemist
1967 California State College BS
1968-71 U.S. Army
1972-74 Department of the Army
research analyst
2174 Department of State
Nairobi, Kenya (E)
Third Secretary (Political) a
political officer
4175 Pretoria, South Africa (E)
Third Secretary &
economic-commercial officer
as of 8/76
2/78
as of 7/78
Lagos, Nigeria (E)
cover position not known
BR 1974
FSL 8/75, 4/75, 6/74
Nairobi Diplomatic Directory 3175
Preteoria Department of Foreign Affairs List 12175
Pretoria Diplomatic List 7175
Pretoria Embassy Source
BRAYTON, DONALD E.
17 Sep 1932 Rhode Island
1950-54 U.S. Air Force overseas
1955-56 not ascertainable
1957-62 unspecified government agency
electronics specialist
1/63 Department of State
Accra, Ghana (E)
communications assistant
8/65
as of 5/69
as of 10/70
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as of 2/74-4173 no entry in Department of State records
5/73 Department of State
Monrovia, Liberia (E)
telecoms technician
as of 10/76 Dept. (A/OC)
as of 8/78 Athens, Greece (E)
probably telecoms
Wife: Herlene Jacques
Sources: BR 1974
FSL 8/75, 6/73, 10/70, 1/67, 4/63
Department of State Sources
BRETT, BRUCE".
not known
as of 11/74
Department of State
as of 6/76
Sources:
BRUHA, JAMES ANTHONY
Kinshasa, Zaire (E)
Political Section & special assistant
(Administration Section)
no entry in Department of State records
Kinshasa Emhassy Sources
Department of State Sources
rating
not known
4 Dec 1933
Illinois
1955
St. Joseph's College BA
1955-57
U.S. Marine Corps overseas
1957-61
private experience
1961
De Paul Academy
English teacher & department chairman
De Paul University MA
1961-67
privateexcpcricnce
1967-72
high school teacher
unspecified government experience
3/72
Department of State
as of 12/75
Tunis, Tunisia (E)
Second Secretary (Consular Affairs) B
consular officer
Kinshasa, Zaire (E)
Second Secretary, Vice-Consul &
Consular Section
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as of 1/79
Wife:
Sources:
BRUNER, WHITLEY
24 Aug 1942
8/71
Dept. (AF)
Margaret Van Leuwen
BR 1974, 1972
FSL 8/75, 6/72
Kinshasa Diplomatic List 9/77
Kinshasa Embassy Sources
Tunis Diplomatic Lists 2/75.7/72
Department of State Sources
Department of State
Dept.
(Foreign Service Institute)
detailed for language training
Beirut. Lebanon (E)
(FSI Field Language School)
detailed for language training
San'a, Yemen Arab Republic (E)
economic commercial officer
3/75
6/75
9/78
as of 4/79
Cairo, Egypt (E)
Second Secretary (Political Affairs) &
political-economic officer
Baghdad, Iraq (E)
cover position not known
Language:
Arabic
Sources:
BR 1974
FSL 8/75, 10/73, 6/72. 10/71
BULL, RICHARD C.
Cairo Diplomatic Lists 4/78. as of 3/77
Cairo Embassy Source
Department of State Sources
6 Oct 1932
Missouri
1954
Princeton University BA
1954-57
U.S. Army overseas
1957-58
Georgetown University
1958-61
Dcpariment of the Army
research and reports analyst
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PREPARED STATEMENT OF ROBERT L. KEUCH
I am pleased to appear today to comment on the bill recently reported by the
Senate Intelligence Committee and referred to this Committee in an area of
critical importance- protecting the confidential identities of intelligence agents
and sources who serve this country overseas. My remarks will be brief, because
I have testified extensively about this legislation during its development.
As I have previously testified, the Department of Justice strongly supports
the passage of legislation providing new criminal penalties for unauthorized
identification of the covert intelligence agents and sources who serve this
country overseas. A strong foreign intelligence capability is essential to the
national security of the United States. The quality of our intelligence gathering
will be measurably diminished unless we can prevent unauthorized disclosure
of the covert intelligence roles of our agents and sources. Such disclosures not
only impair our foreign intelligence and counterintelligence activities, but can
expose individual agents and sources to physical danger. Accordingly, the Depart-
ment of Justice supports the passage of legislation to prevent unauthorized dis-
closures and to provide appropriate punishment when such disclosures do occur.
It is our opinion that the knowing disclosure of the identity of a covert in-
telligence agent or source of the Central Intelligence Agency or a foreign in-
telligence component of the Department of Defense constitutes a violation of
the current espionage statutes found in Title 18, sections 793(d) and (e). How-
ever, the passage of an act dealing specifically with the disclosure of covert
Identities will be an aid to effective law enforcement because the government
will be able to avoid several substantial hurdles which exist in prosecutions
brought under the present espionage statutes.
Identities protection, of course, Is an area where we must steer carefully
between two monumental interests-on the one hand, the protection of freedom
of speech, the Constitutional right of citizens to discuss and debate issues con-
cerning politics and government, including issues of American foreign policy ;
and on the other hand, the need to protect the effectiveness of American intelli-
gence gathering abroad. We believe the legislation reported out by the Senate
Intelligence Committee satisfies both needs. When I testified before the Senate
Intelligence Committee on its earlier draft bill-that is, S. 2216 before it was
amended-I expressed the Department's concern about the potential breadth
of the bill's coverage. We were concerned, first, that the bill would have punished
individuals who did not knowingly Identify covert agents and sources, but who
only revealed Indirect information that they had "reason to know" would have
an identifying effect. The Committee has tightened the bill in that respect, now
requiring that any identification be knowing, and we agree with the wisdom of
the change.
A second concern of the Department had been the breadth of coverage pro-
vided for disclosures based on public record information. As originally put, the
bill not only criminalized use of classified Information to identify agents, and
disclosures by former government employees. but It also criminalized any use
by any individual of Information from the public record to reveal even a single
covert Identity, so long as the government could demonstrate the requisite intent
on the part of the person to "Impair or impede the foreign intelligence activities"
of the United States. We are concerned that legitimate news reporting of foreign
policy and foreign affairs, and even dinner-table political debate by citizens,
might be chilled by the breadth of that provision, and that the intent require-
ment would not be enough to avoid potential chilling. The Committee has gone
far to meet this concern by providing that a single act of disclosure would be
covered only If It Is part of an ongoing effort to destroy intelligence covers-or
to use the amended bill's exact language, only if It occurs during a "pattern of
activities Intended to identify and expose covert agents". Thus, the disclosure
of an Isolated name of an agent or a source, in the course of a serious discussion
of the nature of American involvement in a certain country or area or a question
of Intelligence policy, would not be the target of the bill's prohibition.
Another serious concern of the Department of Justice was the requirement of
the original draft that an individual must have had the subjective "intent to im-
pair or Impede the foreign intelligence activities of the United States." As I have
previously testified, such a scienter requirement raised very serious prosecutorial
and constitutional concerns. In previous testimony I said, and I quote :
"The selenter requirement-that an individual must have acted with `intent
to Impair or impede the foreign intelligence activities of the United States'-is
not a fully adequate way of narrowing the provision. First, even such a scienter
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standard could have the effect of chilling legitimate critique and debate on CIA
policy. A mainstream journalist, who may occasionally write stories based on
public information mentioning which foreign individuals are thought to have
intelligence activities. Speculation concerning intelligence activity and actors
critical of the CIA could be used as evidence of an intent to `impede' foreign
intelligence activities. Speculation concerning intelligence activity and actors
abroad would be seemingly more hazardous if one had even taken even a general
position critical of the conduct of our covert foreign intelligence activity.
"And yet, even as it may chill legitimate journalists, that same intent require-
ment would pose a serious obstacle in any attempted use of ? 501(b) to pros-
ecute individuals who for no reasonable purpose of public debate expose whole-
sale lists of our intelligence operatives. The intent element mandates that in
every case where a defendant fails to admit an intent to impair or impede, a
serious jury question on the issue of intent will arise. A defendant could claim
that his intent was to expose to the American people questionable intelligence
gathering operations which he 'believed' to be improper, rather than to disrupt
intelligence operations, and the government may find it a practical impossibility
to ultimately establish the requisite intent beyond a reasonable doubt, thereby
rendering the statute ineffective.
"Second, and perhaps more importantly, the intent element will facilitate 'gray-
mail' efforts by a defendant to dissuade the government from proceeding with
the prosecution. Under ? 501(b) of the House bill, a defendant will be able to
argue for disclosure, either pretrial or at trial, of sensitive classified informa-
tion relating to the alleged activities of covert agents, on the ground that the
information is relevant to the issue of whether he intended the revelations of
identity to 'impede' American intelligence activities or rather intended the
revelations to lead to supposed reform or improvement of future intelligence
activities.
"Moreover, ? ? + the " ? ? specific intent requirement tends to invite a 'good
faith' defense-the claim by a defendant that while his disclosure may have
hampered the success of a particular intelligence operation or project, his overall
purpose was to alert the Congress and the American public to a necessary reform
of intelligence policy, or to point out an intelligence operation that was unwise
or illegal, and that he had no desire or intention to injure our overall intelligence
capability."
The amended version of S. 2216 has responded to these concerns by providing
that, in disclosing information that identifies a covert agent, an individual must
do so "with reason to believe" that such disclosure will impair or impede the
intelligence activities of the United States. In other words, the amended draft
imposes not a subjective, but an objective standard. In doing so, we believe S.
2216 now fully meets the constitutional and other objections we raised.
As I indicated earlier in my statement, the Department of Justice believes
that S. 2216 not only satisfies the objections we raised, but otherwise satisfies
the applicable constitutional standards. The constitutional objections that have
teen raised to the proposed legislation center mainly on Section 501 (c) and I
would like to close my prepared statement by discussing that section specifically
since my comments concerning its constitutionality apply a fortiori to the other
provisions of the legislation before us.
As you know, the Department has participated in the effort to fashion new
legislation in this field. In January the Department gave its support to a pro-
posal that would make it an offense for anyone, including individuals outside
Government, to publish information identifying a covert agent if the publica-
tion is knowingly based on "classified information." The proposed Section 501(c)
departs from that proposal in at least two respects. First, although the Gov-
ernment would be required to prove in any prosecution under ?501(c) that
the covert relationship disclosed by the defendant was classified and that the
defendant knew that the United States was taking affirmative measures to con-
ceal the relationship, the statute would not require the Government to prove
that the disclosure was actually "based on" classified information. In other
words, although it would require proof of a knowing disclosure of a secret re-
lationship, it would not require proof that the defendant had direct or indirect
access to human or documentary sources subject to the Executive order that
establishes the classification system. This difference between the Department's
proposal and ? 501(e) I,rondens the potential coverage of the latter, although
the two proposals, would undoubtedly overlap at a number of points in their
application to actual cases.
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The second major difference between the two proposals lies in the require-
ment, imposed by ? 501(c), that the Government prove that the defendant made
his disclosure "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
requirement substantially narrows the coverage of ? 501(c), and reflects the
judgment that general public discussion of intelligence activities is desirable
and that any new prol ibition in this field must be narrowly drawn to preserve
that general interest against unnecessary encroachment. In accordance with
that principle, ? 501(c) does not seek to prohibit discussion generally, but is
directed at the individual who takes it upon himself to bring intelligence ac-
tivity to a halt and who does this, not by urging a change in public law or policy,
but by ferreting out the identities of individuals who are involved in intelligence
activities and by disclosing those identities with the intent the intelligence
functions will be disrupted by the disclosure itself.
The Supreme Court has, of course, consistently held that the Nation has
interests that can justify prohibitions against some kinds of speech in some
circumstances. In particular, the Court has held that the Nation has a com-
pelling interest in erecting and maintaining effective systems of national de-
fense, including intelligence systems ; and the Court has upheld prohibitions
against unbridled speech that threatens necessary defense or intelligence systems
in a direct and immediate way. See, e.g., Debs v. United States, 249 U.S. 211
(1919) ; Snep v. United States, -U.S. - (1979).
The prohibition set forth in ? 501(c) requires proof that the intelligence identity
in question was classified and that the defendant knew that the Government
was attempting to keep the identity secret. It thereby avoids a criticism that
some judges have directed at other statutes in this field-statutes that do not
expressly confine their strictures to cases in which there is an actual "occasion
for secrecy." See, e.g., United States v. Heine, 151 B.2d 313 (2d Cir. 1945) (Hand,
J.). Yet the essence of the offense described in ? 501(c) is not the knowing
complicity of the defendant in a breach of the classification system. The essence
of the offense is the defendant's attempt to create, through private speech, a
direct and immediate obstruction to a necessary defense process. In this re-
spect the prohibition set forth in ? 501(c) resembles the prohibition that was
upheld by the Court in Debs v. United States, supra. In an opinion by Mr. Jus-
tice Holmes, the Court ruled in that case that although Eugene Debs was free
to criticize the public policy that had taken the Nation into World War I, he
was not free to engage in a deliberate attempt to obstruct a necessary defense
process-military recruitment. Because his speech to the citizens of Dayton,
Ohio; created a clear and imminent danger that recruitment would in fact be
obstructed, the Court concluded that Government could constitutionally proceed
against him.
Congress may conclude that an ongoing enterprise designed to identify in-
telligence agents and to destroy their effectiveness through disclosure can
threaten a necessary defense process. Prohibitions reaching analogous conduct
are already on the books. One could argue persuasively that in a particular case
there may be a legitimate individual interest in engaging in an enterprise of
that sort ; but in assessing the constitutional balance between that interest
and the compelling national interest in maintaining an effective intelligence
system, we cannot conclude, given the case law, that there is no instance what-
ever in which the Government can make such an enterprise unlawful.
As I have noted in my testimony, S. 2216 incorporates a number of recom-
mended changes designed to make clear the narrow scope of the prohibition
and to prevent the prohibition from chilling bona fide debate over intelligence
policy and practic. It is our view that the bill, as amended, strikes a proper
constitutional balance among the competing interests involved.
Mr. Chairman, legislation in this area is critical to the morale and con-
tinuity of our intelligence service, to the confidence that foreign sources have
in us, and to our ability to protect national security in a hostile world. The,
Department strongly recommends that the Judiciary Committee report out an
agent identities bill with a favorable recommendation, so that we can look for-
ward to passage in this Congress.
Thank you very much.
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PRa'ARuD STATEMENT OF EDWARD J. O'MALLEY
It is a pleasure to be here today to examine the provisions of S. 2216, which
is designed to strengthen U.S. intelligence capability by protecting covert sources
and employees from disclosure by employees or former employees and others
who intend to damage the national security of the United States.
The last few years have seen examples of those who seek to cause injury
to our intelligence efforts and at the same time, place the lives of our employees
and sources in jeopardy. There is no question that this issue must be addressed
before additional damage occurs.
Mr. Chairman, Director Webster in recent appearances before the Congress
on the proposed intelligence charter, supported a criminal statute to protect the
security of individuals who are in a covert relationship with the United States
and suggested that such protection include FBI foreign counterintelligence and
international terrorist sources and employees. The proposal before this com-
mittee has evolved from lengthy examination of the problem by this Congress
and the administration and it is supported by the FBI.
As the committee is aware, the original proposals did not extend protection
to FBI sources or employees who are acting covertly, and it may appear that the
limited inclusion of the FBI is an afterthought. I want to assure this com-
mittee that the FBI is and has always been as concerned about the potential
for harm to its sources within the United States and employees who covertly
journey abroad as any other intelligence agency. The physical danger to these
sources and employees and the damage resulting to the legitimate intelligence
activities of the FBI and the overall United States intelligence effort from dis-
closure could be substantial.
We recognize, Mr. Chairman, that the stimulus for this legislation is generally
perceived as the need to protect the identities, and therefore the safety of
sources anq employees whose covert roles for U.S. Intelligence are disclosed, and
this is without question a grave problem at this time. We must not lose sight,
however, of the fact that disclosure of a previously concealed operative will be
detrimental to the ability of this country to gather foreign intelligence or to
protect itself through foreign counterintelligence or foreign counterterrorism
activities.
The FBI is deeply concerned about the security of its personnel, sources, and
operations targeted against the activities of hostile foreign powers and interna-
tional terrorist groups. We are in possession of information that indicates con-
tinuing attempts to identify our sources and operations, and we believe that
this proposed legislation will add a measure of security and act as a deterrent
to those who, for various reasons, seek to diminish or destroy FBI capability.
This proposal will offer protection to all FBI sources who assist us in foreign
counterintelligence and foreign counterterrorism activities, and would protect
FBI employees acting in a covert capacity who act outside the United States.
The exclusion of FBI covert employees operating within the United States does
not, in our view, pose a serious problem. The impact on the personal safety of
FBI covert employees within the United States cannot be equated with the con-
sequences accruing to a CIA overseas employee who is exposed. The significant
harm to the FBI and, therefore, to our mission in U.S. intelligence would come,
in our view, through exposure of covert FBI employees overseas, and particu-
larly through exposure of FBI sources wherever they may be. These categories
of employees and sources would, of course, be covered by this legislation.
Mr. Chairman, we are not unmindful that a constitutional concern has been
expressed to this Congress by some witnesses who have appeared before other
committees on this legislation. The FBI will defer to Department of Justice
experts on the subject of constitutionality, but I would like to make it clear
that the FBI does not view this legislation as being directed against any par-
ticular class or group of persons, nor is it an effort to silence legitimate debate,
or those who criticize the role or activities of the FBI. We seek only to be able
to proceed against those who, through a position of trust in the government,
have learned or can discern covert identities and disclose them, or others whose
aim is to destroy the effectiveness of the legitimate U.S. intelligence effort.
I assure you, Mr. Chairman, that Director Webster would not support this legis-
lation if its purpose either clearly or subtly, is to silence legitimate debate or
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discussion. We seek only to protect the integrity of our lawful intelligence
activities against those who intend to destroy these activities.
Mr. Chairman, the FBI supports the passage of this legislation and recom-
mends favorable consideration by this committee.
This concludes my formal remarks, and I will be pleased at this time to
respond to questions from this committee.
Senator METZENBAUM. The next panel includes Floyd Abrams, of
Cahill, Gordon and Reindel; Morton Halperin, Director of the Center
for National Security Studies, who is accompanied by Jerry Berman,
legislative counsel for the ACLU; Ford Rowan, of Sanford, Adams,
McCullough and Beard, and Sol Yurick, of the Pen American Center,
New York.
Let me first apologize to the panel for putting you on as a panel,
because I had not intended to do that originally. But I do not have to
tell you that the time is 12 :20, and I would like to bring this to a rea-
sonable conclusion.
I would ask each of you to limit your remarks to 5 or 10 minutes,
if you can. Your entire statements will go in the record following
your oral testimony. That is probably unfair, but I do not know what
alternative I have, except to continue the hearing to another day, and
I do not think I want to do that if I do not have to.
Mr. Abrams, we would be happy to hear from you first, sir.
PANEL OF LEGAL EXPERTS :
STATEMENTS OF FLOYD ABRAMS, ATTORNEY; MORTON HALPER-
IN, DIRECTOR, CENTER FOR NATIONAL SECURITY STUDIES,
AMERICAN CIVIL LIBERTIES UNION, ACCOMPANIED BY JERRY
BERMAN, LEGISLATIVE COUNSEL; FORD ROWAN, ATTORNEY,
AND SOL YURICK, PEN AMERICAN CENTER
Mr. ABRAMS. Thank you, Mr. Chairman. Rather than read any part
of my prepared statement, I would like to comment briefly on some of
the questions raised today and some of the issues which were put
before the various witnesses.
First of all, I would like to make clear something with respect to
this issue of whether section 501 (c) does or does not apply to public
information. That notion comes not from me or any of my colleagues,
as I find them today, sitting next to me. Mr. Keuch has testified on a
number of occasions before Senate and House committees that indeed,
public information was covered. One of the former objections of the
Department of Justice, voiced in June to the then draft of section
501 (b), for example, was that it applies, so Mr. Keuch testified, to
disclosures even of publicly available information by any voter, jour-
nalist, historian, or dinner table debater, if the disclosure is made with
the intent to impair or impede the foreign intelligence activities of
the United States.
Some changes have, to be sure, been made in the intent section, but
there is no change with respect to the proposition that what is now
section 501 (c) applies to public information.
Indeed, Mr. Keuch testified on August 19 in front of the House
Subcommittee on Civil and Constitutional Rights of the Committee
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on the Judiciary and observed that the Senate bill, the very Senate bill
before this committee now, does cover disclosure based on public record
material. So I do not think that should be a matter of debate or, indeed,
one in which those of us who are troubled by section 501(c) are taxed
with having created. Section 501(c) makes it a crime if certain require-
ments are met, to disclose information which is public information,
not just information which has never been known before-specifically,
section 501(c) would permit a prosecution of a second or third person
who repeated, with the requisite bad intent, information already public
in every sense, already public.
I do not think Mr. Keuch would really disagree with that proposi-
tion, either.
One of the problems with the legislation in its current form is that
it lends itself easily and almost inevitably to a kind of selective pros-
ecution. If it is true that one person who has the bad intent can be
prosecuted for saying precisely the same thing as someone who has
intent which is not actionable under the statute, we wind up with one
prosecution of one person for doing just the same thing as someone
who is not being prosecuted and could not be prosecuted. That is one
of the things that is wrong with section 501(c) .
Now, in my prepared testimony, I suggested a few examples, one or
two of which I would like to raise, as to the kind of ordinary journal-
istic situations under which section 501 (c) could permit prosecution.
I suggested, for example, that if a journalist came to believe that
the CIA was involved in certain types of gross improprieties, illegal
conduct, conduct involving spying on Americans in America, so long
as the agents had been abroad within 5 years, or participation in some
Watergate of the future; or, what I said, hopefully, was the most
unimaginable scenario of all, which is complicity in assassinations
within the United States, that if a series of articles were published
about those types of information, naming names of those involved in
illegal governmental conduct, under this legislation there could be
criminal liability.
Now, Mr. Keuch tells us, and I understand everyone who has testified
so far to tell us, that that is not a real problem, that what they are
really after are other things, other people, bad people who publish
bad things. The statute does not do that. The statute is not limited by
its terms, as if it could be-and it cannot-to cover people that we do
not like or that publish more offensive things or that publish them first,
rather than second or third. The fact of the matter is that the statute
has language requiring a pattern-I think that is a good thing, if we
are going to have 501(c) . I would prefer to have some requirement of
a pattern of behavior, because it is some protection.
The fact of the matter remains that a pattern of behavior can be a
series of articles. No assurances by Mr. Keuch today can gainsay that
proposition of law on reading the language of the statute.
We are told that there is a lot of protection in the new draft of the
statute, because there cannot be any liability unless the person who
reveals information has reason to believe that the disclosure of the
names would impair the foreign intelligence activities of the United
States.
Senator Metzenbaum, I have been personally involved in situations
in which I have thought that the head of the CIA has served the coun-
try well by advising the newspapers and broadcasters in advance of
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96.
publication of his view that it would not be in the national interest to
publish certain material. I thought he acted well, and I thought that
they acted well, on a number of occasions, in not printing that infor-
mation. Yet, under section 501 (c), every time hereafter that there is
communication between the Director of the CIA or some other gov-
ernmental official and a newspaper or broadcaster in which they are
told in advance of publication in substance, "You really should not
do this; it would really be harmful if you do it," it seems to me that
all that can and likely would be used against them in any kind of
criminal prosecution.
I believe-and now I come to the six cases that I cited, and let me
say that I will agree, if I may say so, with Senator Simpson, that my
analysis is a limited one. It is a citation to a few cases, and I would be
glad, if I may, to supplement that with perhaps a later letter to the
committee.
Senator METZENBAUM. I would ask you to do so, in a similar vein
that we have asked Mr. Keuch to have the Department of Justice
analyze those cases. We would appreciate it.
Mr. ABRAMS. If I may very briefly now, what they say, though, is
that once information is out, it is out. And they say it in a wide
variety of circumstances. I was involved in a few of these cases, and
I remember them well. There is a case here, for example-not a CIA
case, not an FBI case, but a case involving a secret judicial panel,
which was looking into the question of whether-when anonymous,
sometimes, charges were made against judges in the State of Virginia,
as it happens-there was any basis for that.
There was a good reason for that statute, a good reason to do it in
confidence. It would defame public officials if it came out before there
was any showing of cause. There is a good reason for not having public
hearings until some panel first makes a decision that there is something
to the charge. And yet, information about one juvenile court judge
became known by a Norfolk, Va., newspaper, and they published the
information that they had about the judge. They were charged and
convicted of the criminal offense of publishing the name of a judge
under investigation by this secrecy panel. And the Supreme Court
unanimously held, reversing the Supreme Court of Virginia, that that
was unconstitutional; that once the information was out, it could not
be made criminal. Once information leaks, even if we would choose
it not to leak, if we could but choose, once it is out, it is out. And that
is one of the things I think is wrong and likely unconstitutional about
section 501(c). It is not limited-probably could not be, in any
event-it is not limited to the first person who gathers information
by ferreting it out and then leaking it in some fashion. It is limited
to everyone, any time he publishes or otherwise discloses that in-
formation, so long as the person meets the other requirements of the
statute, so long as it is part of a pattern of activities, so long as the
Government has not affirmatively made it known previously.
So, while I would rather do a brief in writing than orally, at least
in the first instances, it does seem to me that cases like this lend sub-
stantial support to the proposition that once information is public,
it is public. And it is not a quotation out of context, I assure you, when
I quote the Chief Justice of the United States as saying that "The
Government cannot restrain publication of whatever information the
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media acquires and which they elect to reveal." I will follow that a
if I may, by a letter to the committee.
The only other things I would like to add, apart from responding
to any questions, are these. My problems with 501 (c) are not drafting
problems. I think you could do it a little more narrowly, and I would
prefer, I think, if I had to choose, some combination of the Senate bill
and the House bill. I like the pattern of activities language of the Sen-
ate bill, and I do prefer, from a first amendment point of view, the
intent requirement of the House, bill. But my problem with section
501 (c) is really broader than that.
I believe that if you make illegal, under almost any circumstances,
the publication of material which has been made public-or at least,
may have been made public, and this statute includes that, as Mr.
Keuch has testified-which may disclose wrongdoing of a dangerous
nature by the agency itself, and as to which there is no affirmative
defense of any sort contained in the statute, and need not even be
classified, that we start down a very dangerous and certainly novel
path.
Mr. Chairman, Ambassador Carlucci had a line in his prepared
text which I would like to conclude by referring to. He said:
Nothing could be more subversive of our constitutional system of govern-
ment than to permit a disgruntled minority of citizens freely to thwart the will
of the majority.
I do not know of a statement I have read in recent years by a
Government official which is so directly antithetical to the first amend-
ment. I believe that nothing, in fact, can be more subversive of our
constitutional system of government than to permit an unhappy ma-
jority of the citizens to thwart the rights of the public to freely
express themselves.
The first amendment, Mr. Chairman, as has often been said today,
is not absolute. It is at least firm enough, in my view, to conclude
that section 501(c) is unconstitutional.
Thank you.
Senator METZENBAuM. Thank you, Mr. Abrams. I had not noted
that statement of Mr. Carlucci. Could you read those words back to
me?
Mr. ABRAMS. It is on page 5.
Nothing could be more subversive of our constitutional system of government
than to permit a disgruntled minority of citizens freely to thwart the will of
the majority.
Senator METZENBAUM. I think it might be good for him to go back
and learn a little bit about our Nation's history. He might even come
to the floor of the Senate sometime and learn that the minority does
have certain protections-I am glad to tell my friend on my left, who
is usually on my right. I am just as disturbed as you are by that state-
ment. It is inappropriate for a representative of the Government to
have made.
Thank you, Mr. Abrams.
I am going to hold questions, if that is all right with you, Senator
Simpson
Senator SIMPSON. That is fine, Mr. Chairman. I would just add one
thing. I will hunch that I am the only fellow in the U.S. Senate who
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has been a member of the minority as well as the majority in a legis-
lative body, politically. It gives you an interesting insight. Every-
body needs that from time to time.
Senator METZ>NBAUrt. Mr. Halperin, we are happy to have you
with us.
Mr. HALPERIN. Mr. Chairman, I want to express our appreciation
to you for holding these hearings and providing another look at this
bill.
Mr. Keuch said, as he was finishing, that in his view, public debate
does not require the seriatum disclosure of the names of individuals
working for their country. I think I agree with that. The problem is
that :the statute before us does not simply punish the disclosure, the
seriatum disclosure of names of people working for their country. It
is far broader than that.
Indeed, I would suggest that if you listen to the testimony this morn-
ing and read the prepared statements, it sounds like we are dealing
with a very different statute. And let me, using phrases and sentences
that appear in the testimony, suggest the statute that. people have been
defending today.
It is a statute that would state something like this :
Whoever, with the intent to cripple the foreign intelligence activities of the
United States, disclosez the name of and American agent serving abroad in an
authorized activity, with the intent that the disclosure itself would disrupt in-
telligence activities, and knowing that the disclosure would place the name of the
agent in jeopardy.
Now, I would suggest that if we were dealing with a statute that
read something like that, that Senator Chafee's uncle, Professor
Chafee, would find it constitutional. It is consistent with the language
in the quote from Professor Chafee that is in Senator Chafee's testi-
mony.
The problem is that the language we are dealing with in this bill is
far different. There need not be an intent to cripple. There need only
be a reason to believe that it would impair or impede. One need not
reveal a name, but only information that may identify somebody. It is
not limited to employees of the U.S. Government. but covers U.S. citi-
zens who are agents, informants, or sources of operational assistance.
It includes also foreigners who are agents, informants, and sources of
operational assistance. It covers people who formerly were agents, if
they are foreigners. It covers not only people who are abroad, but peo-
ple who are at home, including U.S. employees who have served abroad
in the last 5 years. And, contrary to what the FBI testified to today,
the bill covers American citizens who are FBI informants who are serv-
ing at home, and not only foreigners, and that is. the provision of the
bill that raises the most difficulty. It does not require. contrary to what
was suggested earlier, that the activity be authorized. If the FBI was
engaged in a counterintelligence investigation which violated their
secret foreign intelligence guidelines, there is nothing in this bill that
would nevertheless exclude from criminal penalties somebody who re-
vealed the name of an informant who was engaged in an unauthorized
counterintelligence investigation.
And finally, there is no intent, or even reason to 'believe, or even
reckless disregard of the fact that lives would be placed in jeopardy.
The disclosure need not place anybody's life in jeopardy. It need not
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have a serious or crippling effect or, to use the language of Professor
Chafee, a direct injury to the Nation's survival, but rather, simply
impair or impede a single intelligence activity of the United States.
. There are, in the testimony that Mr. Berman and I have presented
and in Mr. Abrams' statement, a number of scenarios in which I think
we demonstrate that it is sometimes important to public debate to
reveal the names of people who we think are covered by this testimony.
And I would respectfully suggest to the committee the possibility of
asking the Department of Justice to comment on the scenarios in our
testimony and in Mr. Abrams' testimony, to ask them whether in their
view, those situations are covered, and ask them whether in their view,
it is constitutional to cover those situations, and to ask them whether
they believe those situations should in fact be covered, and if not, to
ask them to work with the committee to revise the language so that
they are not covered.
And I would just like to make, if I may, Mr. Chairman, a few other
points about what was said earlier in the testimony.
It is not true that if Phillip Agee or some other former official
gave names to somebody and they then published them, they would
not be covered by this statute if you struck section (c). There is still
a conspiracy clause in this statute, which covers precisely people who
are engaged in the activities described in Section (c), but who do it
in conspiracy with somebody who had authorized access. So those peo-
ple would be covered, and you could not escape the statute simply by
handing it to somebody who was outside.
On the question of whether it is constitutional to have an intent-to-
injure requirement, if it is not constitutional, then almost all of our
espionage statutes are unconstitutional, because most of the espionage
statutes require that the Government prove an intent. Now, the intent
there is to give advantage to a foreign power or to injure the United
States. But if intent and political views are not constitutional, then all
of the espionage statutes are unconstitutional.
Moreover, it is not true, contrary to what Mr. Keuch said, that the
espionage statute that he refers to has a provision in it that says that
you have a reason to believe that the action would impair or impede.
The reason to believe statute is the reason to believe that the informa-
tion will be used. Let me just, if I may, quote the language in 18
U.S.C. 794. It says :
Whoever, with intent or reason to believe that it is to be used to the injury
of the United States or advantage of a foreign nation, communicates the in-
formation.
Senator METZENSAUM. So that it is a different kind of reason to be-
lieve. It is not a reason to believe that you could injure but it is a rea-
son to believe that it will injure the United States.
Mr. HALPERIN. And it is a reason to believe that it will be used to
injure, which is different from a reason to believe that the release
could cause injury. The purpose of this language is to cover the person
who sells information, say, to the Soviet Union, and his intent is not to
injure the United States. His intent is to get $50,000. But he has a rea-
son to believe that the information is to be used to the injury of the
United States. And it requires, of course, as well, as Mr. Keuch did
mention, that the information be communicated to a foreign govern-
ment. And I think it is certainly true that a statute which said who-
ever communicates the name of an agent to a foreign government with
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100
the intent or reason to believe that it will be used to the injury of the
United States would, in fact, be constitutional. Ideed, it would be
n
covered by 18 U.S.C. 794. The name of an agent is clearly covered by
that statute.
So I think there is not a statute that has the equivalent of this kind
of language, and I think the language, in fact, does raise serious con-
stitutional questions.
I think I will stop there, and I would be happy to answer your ques-
tions.
Senator METZENBAUM. Thank you very much, Mr. Halperin. I want
to also acknowledge the presence of Mr. Berman; we are happy to have
you with us, Mr. Berman, and appreciate your joining Mr. Halperin
in his testimony. .
Mr. Rowan, we are very happy to hear from you, sir.
Mr. ROWAN. Thank you very much for your invitation to testify.
I appreciate it.
I do sympathize with the goals of this legislation. As a reporter, I
want to protect my sources, and I can certainly understand how the
CIA and the FBI would want to protect their sources. Furthermore,
as an American, I would like to protect the lives of those who work for
all of us. Furthermore, I find the "Covert Action Information Bulle-
tin" and the activities of Phillip Agee to be repugnant, in my view.
But I think this legislation is unconstitutional, despite the efforts of
men like Senator Chafee to try to draft a bill which is limited in scope.
I appreciate the difficulties in writing a constitutional bill on this sub-
ject, because, after playing around with it, I think it is impossible to
write a constitutional bill that involves third persons outside of the
government employment.
The first amendment was designed to protect people like Thomas
Paine, who printed pamphlets attacking the Government, and people
like the "Covert Action Bulletin" folks. I speak, of course, as someone
who has been a reporter for a mainstream press institution since 1964.
I currently divide my time between practicing law and doing news
commentary for a group of independent television stations.
Senator METZENBATM. Which do you find more interesting, Mr.
Rowan, being a commentator for television, or practicing law?
Mr. ROWAN. I find them both to be very, very interesting. I try to
keep those realms completely separate, to avoid any conflict of interest.
But it is really a challenge to divide my time.
Senator METZENBAIM. Having been an abysmal failure in trying
to run my own TV show many years ago, I respect you for your suc-
cesses there.
Mr. ROWAN. Thank you very much, sir. I appreciate that.
But let me say that, in terms of being a reporter and still being
involved in broadcasting, I should say that I have tried to avoid
letting where I sit, in the press gallery, determine where I stand on
this issue. It is always difficult to do that. But when the Senate Intelli-
gence Committee in June invited me to testify, the witness list sort of
surprised me, because on the top of it, it said, "Hearings on S. 2216,
the Agee Bill." That kind of reminded me of something from our
dark past, a bill of attainder. Now, this bill is not a bill of attainder.
but it is involved with trying to go after a small group of people.
The problem is, it is too broad in its scope.
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Something else reminded of the dark days before the first amend-
ment secured our rights-the sentence in the Senate bill making dis-
closure a crime if a covert agent is in fact such an officer, employee,
or member. It punishes truth. That reminds me of seditious libel
prosecutions, where truth was no defense; the greater the truth, the
greater the crime.
Criticism of the Government is much more effective when it is true,
when it is factual, when it is not vague, when names are named.
The bill does remind me of sedition laws, and it could ensnare the
so-called "mainstream" journalists, although I think the first amend-
ment was written for every one of us, every individual, whether he is
a reporter or not.
Let me give you an example. When the New York "Times" dug out
the facts about alleged domestic surveillance by the CIA, its story was
greatly strengthened by the inclusion of the name of the Chief of
Counterintelligence, a man who had worked overseas during the pe-
riod involved. The reporter engaged in a pattern of activity to dig
out the truth about these individuals he felt were involved in domestic
surveillance. It was a pattern of activity to expose those involved.
And it is clear to me that that newspaper wanted to impair and impede
that type of activity by a foreign intelligence agency. And I think
the same arguments could be made about other press exposes-the
involvement of the CIA and FBI personnel in Watergate; the CIA
drug experiments; the CIA assassination plots; the FBI covert action
program, "Co-Intell Pro," counterintelligence program, directed
against Hoover's political enemies. All the stories were strengthened
by the inclusion of names. No matter what the Justice Department or
some Senators may think, I can tell you as a working journalist, stories
with facts and with names are better journalism than stories that omit
those facts and those names, period.
Senator METZENBAUM. Is it not a fact, Mr. Rowan, that in some in-
stances, there is no story if you do not mention the name?
Mr. ROWAN. That is precisely right. And let us take the case of the
Hussein payment, if there was one, but the story about that. Leaving
out the name and saying simply "some Mideast leader" makes it much
less of a story than when you put the name right there on the front
page.
Senator METZENBAUM. And would the newspaperman or the radio
or TV reporter not lose credibility if, when challenged by others to
come up with the name, relied only upon the fact, "Well, I cannot do it
because it violates the law," wouldn't the story disappear into thin air
under those circumstances most of the time?
Mr. ROWAN. I think you are right, yes.
And I can tell you from firsthand experience that those stories-the
kind I am mentioning-were not one-shot affairs. They were not easy
to write and to find out about. It involved a pattern of activity on the
part of reporters to get that information.
In short, some activities-the kinds that I have mentioned-should
be exposed and denounced and impaired and impeded and halted-the
kind of unethical, illegal and immoral activities that unfortunately,
our Government has been involved in. We should not stop reporters
from exercising their first amendment rights to expose those. And I
am afraid that that is what this bill does.
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Remember, reporters do not write stories out of the blue. They work
hard to dig it up. It is a pattern of activity. To investigate something,
you have got to find out who is involved. Often, the reporter wants
to impair the activity he is writing about, or at the very least, he has
reason to believe that exposing it will impair it.
In short, reporters could be prosecuted under this bill. Despite the
fact that I believe it really was written, the Agee bill, to get Agee
and the "Covert Action Information" folks-I even found that a
little repugnant, but I think that it is so broad, that certainly, we are
talking about something that is probably completely unconstitutional,
no matter how you tinker with the language.
And a last point, and then I will stop. I have gone a little longer than
I had wanted to. We have got to recognize something that the CIA
does not like to admit. A lot of this information is easily obtainable
because it has either been in old biographical registers, or the cover
is too light. I do not think you should start punishing reporters for
exposing secrets that the Government is too inept to keep. Now, that
is the course of action I would recommend-strengthen security pro-
cedures, and do not go messing around with the first amendment.
Thank you.
Senator METZENBAUM. Thank you very much, Mr. Rowan.
Mr. Yurick?
Mr. YURICK. Thank you.
I appreciate the chance to come and testify here. I am a novelist.
Some novelists write from their imaginations entirely. I tend to do a
lot of research.
I discovered, around 1968 and 1969, that the literary community had
been penetrated by the CIA. Various names came to mind, and what I
found was a rather strange influence on the production of literature
itself.
I am also the second and third and maybe fourth kind of party that
Mr. Abrams referred to. One of the ways that we put together things
is not only by research, but by listening to all kinds of gossip. I move in
a varied kind of social circle. I meet all kinds of people. Some of those
people are or have been intelligence agents. I hear a lot of stories. I
find, to my dismay and shock, that, in certain circles, there are no
secrets whatsoever.
It seems clear to me that everybody in every country knows just who
the players are. The secrecy seems to me a fraud.
Now, to cite one novel in particular that was recently published, a
book called "The Secret Lovers," by Charles McHarry, that book and
Charles McHarry would be in a lot of trouble, because in it I recog-
nized the person he was talking about, and I recognized the operation
he was talking about. It was how the State Department or the CIA
brought the writings of Boris Pasternak to the United States. That is
only one kind of incident.
Literature has itself become not only involved with writing not only
about intelligence, but about intelligence operations and the kinds of
minds that are involved in that. It ranges from the trashy to the first
class literary stuff. It is an ancient tradition, incidentally, and goes far
back. We can think of famous literary figures who were intelligence
agents-I would refer to Christopher Marlowe, for example.
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The point is that, in a certain sense, the livelihood of many practi-
tioners of literature would be cut off. Also, there are the corrective
forces that are involved in the production of a novel-if I write a noval
that is pointing to a certain incident, even if I displace it in another
country and disguise the characters, anybody who is in the intelligence
community will recognize what that is about. So ultimately, it is my
imagination and the imagination of a good part of the literary com-
munity that is being invaded.
So you see, what we have is this broadening ripple effect, and we
have the creation, ultimately, of a society which seems to be closing
down more and more on all sources of information until everybody is
afraid to say anything.
Ultimately, what can we say about the cold war, because this relates
to that? Maybe the Russians have won, after all, if we are moving in
that direction.
That is all I want to say, in addition to my submitted testimony.
Senator METZENBAUM. Thank you very much, Mr. Yurick.
I want to say to the panel that I apologize for the lateness of the
hour. I will ask each of the panel members one question, plus one addi-
tional question that Senator Biden has asked me to ask. Senator Simp-
son may have additional questions. If he does, of course, he will proceed
on his own. I may have to leave under those circumstances, but he is
certainly capable of concluding the hearing.
Let me begin with my question.
Mr. Abrams, as an attorney, how would you advise your clients to
avoid criminal liability under 501(c) ?
Mr. ABRAMS. I have two types of answers to that, Senator Metzen-
baum. In order to keep media clients, one has to be careful not to say
"no" too often. So there is some in-built reluctance to say you really
cannot do that. But I would have to say that if a client asked, I would
have to put them on notice on each and every occasion on which they
were using the name of a covert agent, however well-known it was and
however notorious it was so long as the United States had not already
released it formally, that they could run some risks and that they could
particularly run risks in a situation of heated political controversy.
If we were at a time when the Government and the press were really at
each other, or the Government and a client of mine were really at each
other, I would have to give them very stern cautionary notes about the
risks they ran of possible enforcement or potential enforcement
against them of section 501(c).
Senator METZENSAUM. Mr. Halperin, the Intelligence Committee
report says that :
The legitimate activities of reporters, academics and organizations are not
covered by 501(c).
Do you think that the report language alone is enough to provide
protection for those activities?
Mr. HALPERIN. No; I do not think it is. I mean, it is a clear doctrine
that you only look at report language and legislative history if there
is any ambiguity in the statute itself. If you do not think there is any
ambiguity in the statute, I think those activities are in fact covered by
the statute as they are written. They do not require any intent at all.
but simply a reason to believe. And since the Director of the CIA
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and the Director of the FBI have said that any disclosures of the
identities of agents call into question their ability to keep any other
agents' names secret and hence, hamper or impede their activities,
I would think any reporter is on notice that any disclosure of any
name which the Government has not already released, they have
reason to believe would hamper or impede.
So, while I would like to be able to say that the legislation does
not cover any of those situations, I think in fact it does, and that is
the problem with it. We are told one thing in the report and the
testimony, but the plain language says something else, and the plain
language is what people get indicted on.
Senator METZENBAUM. As a matter of fact, in the snail darter case,
didn't the court say in unequivocal language, very specific language,
that we will not pay attention to the legislative intent when the lan-
guage of the statute is clear.
Mr. HALPERIN. Let me give, if I may, another example of that in
the espionage laws. If you look at 18 U.S.C. 793(d) and (e), they say
whoever discloses information relating to the national defense to a
person not entitled to receive it has violated the law. The legislative
history of that has been looked at in great detail by two Columbia
law professors, and they have concluded, I think beyond any doubt,
that Congress did not mean to cover publication of information. But
the plain language of the statute does cover publication of informa-
tion. Mr. Keuch has now testified, and I have heard him say it five
times, that that statute covers publication of information. And we
can have all the arguments we want about whether it does or not.
The fact is Daniel Ellsberg, Anthony Russo, David Trung, and
Ronald Humphries were indicted under the plain language of that
statute, with a meaning and intent which I think is clearly very dif-
ferent than what Congress had in mind here. And I think particularly
when you are worrying about chilling, there is a danger.
Senator METZENBAUM. Mr. Rowan, I will ask you as a journalist,
do you have a pretty clear idea of the kind of conduct prohibited by
501 (c) ? Do you know when descriptions of individuals become dis-
closures of identities? And how would you have to modify your be-
havior as a journalist to conform with the statutory requirements?
Mr. ROWAN. Well, first of all. I would like to say that I do not think
that many journalists will modify their behavior to conform to the
statue. I think that there are a lot of reporters who will go ahead and
print names, despite the fact that there could be some chilling of free
expression. Some reporters say, "Well, I am going to go ahead and do
it anyway," despite what the attorneys might say to them.
But I will say this. We have talked about naming names. It is very
clear-at least it is clear to me-that the legislation prohibits identify-
ing people in other ways. Let me give you an example. There was some-
one in this room earlier today that I once used as a source in a story
and did not identify him by name. However, we had artists' sketches
of four or five people who were sources for the story, and they used
these sketches, showing rear shots of the people-you could not iden-
tify them from the sketches, you could not ever be sure, and their names
were never mentioned in the transcript-but did that information tend
to identify them? Now, I am starting to wonder.
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I do not know where you draw the line, I truly do not, as to what
tends to identify someone. Perhaps somebody at the CIA would look
at that tape and say, "I know him," and he could not be sure, but he
might be pretty much on the trail. And we did our best to make sure
that did not happen, of course, because the whole idea was that
these people talked to me in confidence about the problems inside
that agency. But I must say to you, I really believe that this legislation
not only is unconstitutional, it is unworkable. It is just not going to
stop this. I do not believe it will.
Senator METZENBATM. Mr. Yurick, does a fiction writer have to
name names of agents in books?
Mr. YURICK. No; he does not have to name names, but you want a
certain kind of verisimilitude, you want a reality to it. And the tend-
ency is to draw frequently from real life. I mentioned "The Secret
Lovers." The descriptions of the people there are quite clear. One is
very identifiable, indeed-and I do not know that I particularly am
revealing anything, and anyway, this law has not passed yet-abut one
of those characters is Cord Meyer, Jr. That is very clear from the way
he is described.
There are other such stories. I mean, we can go on forever with this
kind of thing. As I say, literature has been used partly as a battle-
ground. The CIA itself has fed stories to various novelists. I have
heard it said that Helen Mclnness got her stuff from Frank Wisner.
Again, how do you make a thing live? The problem is almost the
same as that of the reporter. You want somebody that is recognizable,
and you deal with that. You want a situation that is real, and you
deal with that, too. And the fact of the matter is that reality, as most
people know it, is not really very exciting. The reality, as I investigate
more and more about how intelligence-not just American intel-
ligence-works and how it has worked through history, I find that
this is the stuff of the most astonishing kinds of stories, and it is the
kind of thing that I want to write about partly.
But again, there is the whole corrective factor. The tendency is
not to deal with the kinds of operations that are only the good ones.
How about the crazy ones, the corrupt ones? I mean, the field of
endeavor that one can get from the MK-Ultra operation will fill
volumes of wonderful and entertaining and rather horrifying stories.
Senator METZENBATM. Thank you.
Mr. Abrams, I have a question for you on Senator Biden's behalf.
This is Senator Biden's question : When we attempted to narrow the
scope of 501(c) in the Intelligence Committee, we considered an
amendment by Senator Bayh which would have included a specific
intent requirement on the part of the discloser. The defendant would
have been required to specifically intend through his disclosure the
harm of the foreign intelligence activities of the United States. Many
members of the committee were persuaded by the testimony on the day
of the markup by the Justice Department that such a specific intent
requirement was unconstitutional. Mr. Ken Bass of the Department
argued that such an intent requirement would constitute a violation of
the first amendment, because it would require the Government to
investigate the defendant's motives, either progovernment or anti-
government. Do you agree with this interpretation of the first amend-
ment? Would the constitutional problems with such a specific intent
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provision be resolved by a narrower specific intent requirement that
simply required that the disclosure be made with the specific intent
to harm the intelligence collection capability of the United States
through the disclosure of the names of agents? Such a formulation
might cover the activities of Mr. Wolf, yet would not require an
inquiry into his pro- or anti-CIA sentiment.
Did I read it too rapidly?
Mr. ABRAms. Senator Metzenbaum and Senator Biden, I do have in
front of me the Bayh-Huddleston draft. I will have to answer that,
if I may, in stages.
First, I have, for reasons I have expressed earlier, a view that there
is no saving 501(c) by narrowing it. So what I am about to say is
simply a choice of lesser, and in my view, unconstitutional evils. That
being said, I do believe that the Bayh-Huddleston draft is less subject
to constitutional challenge than section 501 (c) as it now reads.
I am troubled, I must say, and I have testified on a few occasions
about being troubled about going into the state of mind of the in-
dividuals who reveal information of the sort covered by section 501
(c). It does raise constitutional problems.
Nonetheless, if we are to have a section 501 (c), it seems to me that
it is far more protective of notions of freedom of expression to have
some kind of specific intent requirement. Hence, had I been asked, I
would have said, as I say now, that the Bayh-Huddleston draft is
more consistent with the first amendment than section 501(c) in its
current form.
Beyond that, and in response to the second part of Senator Biden's
question, while I do not believe that the constitutional problems with a
specific intent provision would be resolved by a narrower specific in-
tent requirement, that is one way of dealing with this problem in a
tolerable fashion, given the fact that it is my view that section 501(c )
is, in any event, unconstitutional.
I think that the Bayh-Huddleston draft would probably serve the
interests of freedom of expression more than a draft requiring specific
intent to harm intelligence collection in the bill, but I think that they
are pretty close.
I think one of the problems of all of these drafts, if I may say so,
is this. There is not going to be any way, anyway, to keep from getting
into why people do these things. Even if the statute is passed in its
current form, in one way or another, and by the defense, if not by the
prosecution, an effort will be made to get into why the person revealed
the information. If I were representing a mainstream journalist, to use
Mr. Keuch's phrase, who was accused under section 501(c), I would
try to get it in front of the jury why he did it, how consistent it is with
ordinary practices of journalism, how rational, reasonable, how the
public were served by it. That is state of mind testimony. I would be
very sorry to do that. I think one of the problems with section 501 (c)
is that it makes me do that as his counsel, and it makes him do that to
defend himself. But I think it is an inevitable result of any statute.
But the narrow answer to your question is that I do think that the
Bayh-Huddleston draft is more consistent with the first amendment
than section 501 (c) in its current form.
Mr. HALPERIN. Mr. Chairman, could I indulge you for one minute?
Senator METZENBAUM. I am going to have to leave.
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I am going to include in the record, since I mentioned them earlier,
the Tom Wicker article, and the Washington "Star" editorial.
[Material referred to above appears in the appendix.]
Senator METZENBAUM [continuing]. I am going to turn the hearing
over to my good friend, Senator Simpson. I must excuse myself. I am
grateful to all of you for being here, and I think where we go from here
is undetermined at the moment. Senator Simpson asked whether I in-
tend to offer an amendment to take out 501(c) . I do not, intend to offer
an amendment to do that. I would like to try to figure out an amend-
ment that might improve upon the language in 501(c). I do have some
concerns. But exactly what direction is undetermined at this moment,
and I am not certain that I can figure out language that will take
care of my concerns.
Senator Simpson, the meeting is yours.
[Whereupon, Senator Simpson assumed the chair.]
Senator SIMPSON. Thank you very much, Mr. Chairman.
Howard and I have some very spirited discussions on many issues,
and from that has come a great respect for his intellect and his abil-
ities, and I enjoy them very much, and as 1 say, we get right with it,
and that is fun. It can be done without being disagreeable, hopefully.
I do have several questions, and I know all of you have other things,
and I will not prolong it. I was interested in your comments, Mr.
Abrams, with regard to the statement which was so shocking in the
commentary of our witness, Mr. Carlucci. I would hope that as we
read that-and I am not trying to defend him; if he were here, I am
sure he could do it beautifully, but unfortunately, he is not here. That
is what we call fairness, and fairness is just as important a thing to
you on the panel as it is to us here. So hopefully, in addressing that
statement, which was pointed at with some drama, it would be taken
in the context of the way it is couched, as he speaks of :
Numberless discussions of the constitutional rights of Messrs. Agee and Wolf
and company, but almost nothing as to the constitutional implications of what
they are trying to do. Their purpose is no less than by direct action, to destroy
institutions of government that our constitutional authorities, the President and
the Congress have authorized to exist and operate. They are taking the law into
their own hands.
That is the preface remark that then matched the statement that
you bring to our attention. I just think it is important to kind of keep
that balance in there. And then it goes on to talk about the balancing
of the first amendment.
So hopefully, even though that may be tiresome or boring, it is,
something we ought to kind of stick to-
Mr. ABRAMS. May I say, Senator Simpson, that I assure you that I
would have said this if Ambassador Carlucci had been here. I had no
opportunity to say it in his presence, and I did not mean to say it in
his absence. On the other hand, I did not think that the committee
would want to spend the time to listen to me read longer portions of
his statement.
Senator SIMPSON. I am just saying that when we comment, I think,
on something that someone had said and they are here, it is always
more productive to do it that way.
Mr. ABRAMS. I would have if I could have, sir.
Senator SIMPSON. It is in the first aspects of good reporting and good
listening. So, enough of that.
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I was interested in your remarks about the-and I am sorry I do not
remember which of you addressd it, and if I may come back-one of
you stated that you felt that there was sufficient language as to the
issue of conspiracy being handled here-yes, Morton, you were saying
that without 501(c), that you felt that things could be handled under
this legislation. Could you develop that a little further, please?
Mr. HALPERIN. Section 502, "Defenses and Exceptions," in general
says that you cannot use the normal conspiracy provisions of the law
to apply to this bill. But then it goes on to say that the normal con-
spiracy laws shall apply in the case of a person-and then it quotes the
language of section (c) -who acted in the course of a pattern of
activities intended to identify and expose, and with reason to believe.
So, given the scenario that was presented to the Justice Department
witness, where Mr. Agee or some other former official gives the name
to "Covert Action Information Bulletin" or to somebody else, and they
then print it, that person would be subject to prosecution, because
they would be in a conspiracy with Mr. Agee or whoever the other for-
mer official was, and would also be engaged in this pattern of activities
intended to identify and expose and with the reason to believe.
So that if they could be convicted under the existing section (c),
they can be convicted under the conspiracy laws if they are working
with somebody who is inside the Government. That really, then, turn's,
on the factual question-and again, I do not know whether any of the
CIA people are still here-but sometimes the CIA suggests that you
have to have cooperation of people who are still inside the Government
to make these identities, and sometimes they do not. Insofar as you do
have to have the cooperation of a CIA person or a State Department
person, the statute would cover those publications.
Senator SIMPSON. Does not your interpretation depend upon the
knowledge of who gave the information ?
Mr. HALPERIN. Yes. The Government would have to prove that you
were working in a conspiracy with somebody who had authorized
access, as you have to prove any element of any crime.
Senator SIMPSON. Your interpretation might be wrong if the in-
formation was just there with an unknown informant or an unknown
source.
Mr. HALPERIN. Well, the crime would be committed if the people
got the information from somebody who was covered under (a) and
(b). Whether you could convict them would depend on developing
evidence that satisfied a jury.
Senator SIMPSON. I think that is the key.
Well, I was interested in the dialog between Mr. Rowan and Howard.
You both referred to the issue of making a story. That was the dis-
cussion, and it seemed to me that that was importantly addressed, as
to the importance of a story, that you have to have a name before you
have a story; is that not correct?
Mr. ROWAN. Well, not in every case, no. Obviously, there are many
times that you have to fired out the identity of those involved to the
best of your ability as a reporter, but you may decide not to run those
names.
In the period when I was covering the investigations of the CIA
and the FBI and the NSA and the IRS-the list goes on-during
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that period, I found out a lot of names and very, very rarely b oad-
cast them. But occasionally, we felt that the story required it.
Mainstream reporters-to again use that phrase that I find dis-
tasteful-do a balancing act in their own heads between the values
that all of us as Americans have, as well as the privacy values, in addi-
tion to national security. But there are times when the story simply
stands or falls on the basis of whether the name can be included or not.
That was my point.
Senator SIMPSON. And I understood the discussion about the issue
about the story, and I wondered if that might be taking precedence
over the protection of the life of a person in Government employ. I
think that is one of the issues.
Mr. ROWAN. Well, certainly, it is an issue that anyone would look
at while they were deciding whether they would run the name of
someone.
Now, I attended the burial of Mr. Welch. I certainly do not like to
see that kind of thing happen. And in the course of covering for NBC
news, when I worked for them, we did not go around revealing the
names of our agents overseas. But do you understand what I mean?
If we found out that someone was involved in unethical or illegal be-
havior-for example, the alleged assassination plots--we had a great
dispute because of the question raised by the chairman of the Senate
Intelligence Committee at the time, as to whether this Government
had a rogue elephant out of control over in Langley, Va., or whether
these alleged assassination plots were ordered from on high. Finding
out the names of those involved helped to find an answer to that ques-
tion, which was raised, incidentally, in that committee.
Senator SiMPSON. And even though the term, "mainstream reporter,"
you blanch at, I think we have to come back to that. Those are
the people who are responsible, who are protected. It is the off-the-wall
variety of personnel in that type of activity, such as what this legisla-
tion is directed against. And it may not be good to differentiate be-
tween mainstream reporters of the responsible vein and the off-the-
wall variety, but that is where we always end up with legislation of
any kind.
Mr. ROWAN. Well, I think that the question was answered in the first
amendment, and as much as that answer may not please some Members
of the Congress, I think the answer is that the first amendment is for
everyone-not just reporters, but for all institutions and individuals
that disseminate information or express ideas, who.want to assemble
or petition, who want to criticize, and I believe that includes the "Co-
vert Action Information Bulletin" people. I do not agree with what
they do. I do not defend what they do but I do defend their right to
do it.
Mr. HALPERIN. Senator Simpson, could I suggest two other ways
to distinguish?
Senator SiMPSON. Yes, please.
Mr. HALPERIN. One is implicit in your question, namely, when it
places a life in jeopardy. I think there is a real difference between a
statute that makes it a crime to reveal a name in the circumstance that
places a person's life in jeopardy and a statute that makes it a crime
to reveal a name that just may hinder or impede an ongoing function
of the U.S. Government. I think the constitutional problems are very
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different. Your question implied that. You said, would you publish
the name if it would place a life in jeopardy; can we stop you from
publishing the name if it would place a life in jeopardy. I think it is
a lot easier to do it in that case.
The other distinction is the one suggested in Mr. Keuch's testimony.
He says that this statute as now written only applies in situations
where those who disclose the identity do so with the intent that the
intelligence function will be disrupted by the disclosure itself. Now,
in fact, the bill before this committee has no intent in it at all, but if
the intent is to disrupt, by the disclosure itself, I think again that may
provide a basis for a distinction between activity which can be pro-
hibited and activity which cannot.
Senator SIMPSON. I noticed you read from the espionage section of
the United States Code there, ' 793, which does have the language, "in-
tent or reason to believe" in it.
Mr. HALPERIN. Yes; but read the next
Senator SIMPSON. I have. You read it. I can go on, too, you know. It
says, "* * * with intent or reason to believe that the information"-
and then you emphasize-"is to be used to the injury of the United
States or to the advantage of any foreign nation * * *,;' and so on. And
that is important to you as a distinction, and I heard you say that.
I also looked at the notes of the decisions on that, even though you
are placing a different interpretation, but oddly enough, the case of
A.brarn,s v. United States said that under this title, these sections
were not unconstitutional as an entirety, because in conflict with con-
stitutional amendment No. 1, guaranteeing freedom of the speech and
of the press. And then there are other citations, Corn v. United States,
and using the phrase reason to believe that it was sufficiently definite to
appraise the public of prohibited activities was consonant with due
process. So those are interesting decisions on those issues, but differ-
ently interpreted, I am well aware. But I think constitutionality
entered the fray, and it was upheld on those occasions.
Mr. ABRAMS. Senator Simpson, if I may, my recollection is that the
Abrams case-and I hasten to say, no relative-is best recalled now
for the dissenting opinions of Justices Brandeis and Holmes, which are
the only thing, I think, left that is cited out of the Abrams case. The
Corn case is good law and remains so.
Senator SIMPSON. Unfortunately. dissenting opinions sometimes
fall into the cracks, not through-though there is no such thing, I
understand as "through" the cracks. gr;a nimatically.
And I practiced law before a judge, the only time he joined the ma-
jority was when he died. (Laughter.]
But I just wanted to address that constitutional aspect.
Then, I guess I will ask you, Mr. Halperin, do you believe that it is
legal, appropriate and proper for the United States to engage in
clandestine collection of foreign intelligence information from hu-
man sources?
Mr. HALPERIN. Yes.
Senator SIMPSON. You do? I did not hear that.
Mr. HALPERIN. I am not sure I heard the beginning part of the
question. I think it is certainly lawful to do so, and I think Congress
has authorized such activities and has a right to protect them.
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I have some questions about who ought to be engaging in that
activity.
Senator SIMPSON. If that is true, then would it not be logical to pro-
tect the identities of such clandestine officers and agents, in order to
insure their safety and to preserve their continued usefulness to this
country?
Mr. HALPERIN. Well, I think there is a difference between those two
phrases. It is true, as the CIA will tell you, that it is hard to conduct
intelligence activities at all when there is public debate about them.
That is what the first amendment is about. The theory of the first
amendment is not that it is the most efficient way to conduct foreign
intelligence activities, or even foreign policy in generals or even de-
fense policy in general, to permit the press to publish things. Indeed,
we are the only society that does that. I think the fist amendment stands
for the proposition that the Government cannot make speech illegal,
simply because it makes less efficient the activities of the Government.
I agree with Professor Chafee, and I hope with Senator Chafee, in
saying that it can only do that in very limited circumstances. He says,
for example, "In wartime, those things liable to cause direct and
dangerous interference with the conduct of a war," and he says that
there is a problem of locating the boundary of free speech, and it is
fixed close to the point where the words will give rise to unlawful acts.
And I think that is where the danger to individuals comes in. If the
words will give rise to Congressional legislation to limit the CIA, I
do not think the first amendment prohibits you from publishing it. If
the words will give rise to somebody shooting a CIA agent, I think the
first amendment does have some scope for punishing.
Senator SIMPSON. Well, yes, but in your belief that it is a legal and
proper activity of the United States to engage in clandestine collection
of foreign intelligence information from human sources-because that
is what we are talking about-and certainly, it would not be illogical
to protect the identities of these officers and agents, in order to insure
their safety and preserve their continued usefulness-then, I can only
assume that you believe that under, obviously, certain circumstances,
that it is improper to provide undercover agents and officers involved
with legal protection to have for themselves against unauthorized dis-
closure of their identity.
Mr. HALPERIN. I think the Government can take every step to pre-
vent people within the Government from revealing that information.
I think it can make it a crime for people
Senator SIMPSON. Within the Government?
Mr. HALPERIN. People who get positions of trust.
Senator SIMPSON. But not without the Government?
Mr. HALPERIN. My view-and I find myself unusually to the right of
Mr. Abrams slightly, if I can say that-I think it is possible to draft a
section (c) which is constitutional if it is tied directly and immediately
to placing lives in jeopardy. I do not think you can do it if it just is
supposed to generally impair the activities of the Government.
Mr. ABRAMS. Senator, may I have one chance. That really is where
those six cases are, I think, most relevant. I do think it is a fair
statement of those cases that the legal principle that arises from
them is that even though it is am entirely appropriate thing for the
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Government to do to try to keep this information secret, that, as it
was in different context in each of these cases, once it is not, it is not.
And that is why the cases, for example, involve a juvenile court
proceeding. It is perfectly lawful to have a closed juvenile court
proceeding. But once the name of the juvenile is out, it is out.
Senator SIMPSON. I agree with that. I do not think anyone ques-
tions that. But it was an interesting distinction drawn about the
diplomatic list. Yes, that is public. but it is not public that those
several on that diplomatic list are CIA agents, and that is a good
distinction to draw. But they are "part of the public domain"
Mr. ABRAMS. But it surely should be public, at least for the sec-
ond fellow, Senator Simpson. If Mr. Agee publishes a list of names,
and let us say a mainstream client of mine chooses, as indeed, they
all chose the opposite, to reprint one of those names, at the moment
when they reprint it-a query-is it public, or is it not public? It
seems to me clear that it is public. That is an easy question for me,
and yet, it seems to me also clear that it can lead to criminal liability
under the statute if, at the time my client publishes it, it has the
wrong intent in doing so.
Senator SIMPSON. I think I would concur in that,. Certainly it is
public. It is what is done from that point forward, as to blowing of
cover and so on, and the intent to dismantle the agency, and those
things that are part of the intent of any crime, and that is where we
are.
Mr. HALPERIN. Senator, there is no intent in this bill.
Senator SiMrsoN. But any crime, when we are talking about crime,
has to do with intent. That is the way crimes are. There is no other
definition of crime.
Mr. BERMAN. But Senator, what is the intent here?
Senator SIMPSON. We are talking about, say, the intent of a, per-
son to simply dismantle the CIA. And if you have that intent, there
is a way to do that. You blow their cover, you publish something
every week, you go the works. That is the way that works.
Herman, go ahead, you had a comment.
Mr. SCHWARTZ. Yes, Senator. I would simply say that that is not
this statute. This statute simply requires the intent to disclose names.
Senator Chafee said that that is not even subjective intent. It is the
normal and probably consequence. So if a newspaperman intends to
disclose the name, and there is reason to believe-because Stansfield
Turner has said that disclosing names impairs the national interest
in foreign intelligence, those two elements of this statute are met.
Senator SIMPSON. Well, I am discussing the issue of intent of a
person who wishes to dismantle the CIA, and that is what I would
like to address. So that is that.
I would ask you this. I will not, ask you how you can justify, because
I do not think any of us at all would justify the actions of individuals
who would deliberately reveal identities and consequently place under-
cover agents in total jeopardy, and their families and other officers
in jeopardy, because they personally oppose the basic philosophy of
the CIA. That is what I am addressing-because there are those in
this country who say, "I do not like anything that is ever done by the
CIA," and you are not among those people; you have just said that.
But there are those who find this method, this remarkable mantle of
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the first amendment, to destroy the CIA. That is what I am saying.
And I do not say that with any sinister-you know, somebody fur-
nishing something from some source in space-I am just saying that
there are those who are clever enough to have fond this avenue of
approach. And then we have these lives in danger.
My final question to you is how do we legislatively insure-because
we are going to try to draft something, and my hunch is we will come
up with something that will be acceptable to certainly a vast ma orit.y
of the Judiciary Committee-how are we going to legislatively, in
your mind, insure the safety of officers and agents and their families
in some fashion; if you believe that this bill is inappropriate to do
that, or portions of it are inappropriate to do that, how would you
legislatively protect those officers, agents, and their families from the
danger of identity and disclosure, other than to outlaw in some way
clandestine collection of intelligence information?
Mr. Yurick?
Mr. YURICK. I would really like to address the question, perhaps, in
a slightly different way. I made a remark before about all the players
in that intelligence game in the world knowing just who everybody is.
One of my informants told me that just about everybody in Athens
knew who Richard Welch was, because he happened to go around
and do everything but wear a trenchcoat and announce who he was.
There are probably other reasons why he got knocked off. That is
the first point.
Of the list that Agee has printed, I find that maybe-maybe-one
can attribute Welch's death to it-maybe. The other thing is, given
this kind of circumstance, maybe the people who are attacking the
CIA as such are not attacking the CIA because it is an intelligence-
gathering agency, but because we have had such a history of horrors
that have come out in relation to the entire intelligence community
that this provides kind of a corrective; if there are to be intelligence
operations, one has not only to get rid of the institutional paranoia
which affiicts all of these agencies and which, to the normal people,
is just simply insane, but maybe also to restructure that whole thing
from scratch, from the beginning. And I want to be ecumenical about
that. I will apply it to the British, to the French, to the Hungarians,
to the Russians, to all of them. And it seems to me from my research
that one of the aims of all intelligence agencies is just to keep their
power intact and to keep growing, like most bureaucracies.
Senator SiMrsox. Thank you for your view. I was interested in
your comment, too, that reality is not exciting. I am missing some-
thing, if that is the case.
Go ahead.
Mr. ABRAMS. Senator Simpson, I think I will preface with one
comment, and then I have a short list. First, I think one has to start
with the idea that there may well be certain types of protection that
we simply cannot provide. The Constitution, and the Bill of Rights,
are based on the notion that there are all types of protection, even
for the person of each of us here, as well as our CIA agents abroad,
which we simply cannot protect. The fourth amendment, the fifth
amendment, the eighth amendment, all the Bill of Rights, are protec-
tions against Government conduct, the effect of which might well be
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to make this a safer country in which to live. But still we ban
coerced confessions and a variety of other unconstitutional acts.
More specifically, it seems to me that if you are to adopt a section
501(c) at all, a section dealing with third party information, then I
think you have to have considerably more distinctions in it from the
section 501(c) and section 501(b) as they now exist.
First, I do think that the addition in the 501(c), unlike (a) and
(b), of some type of intent requirement, such as your earlier question
suggested, is a good idea. I think it is negotiable what it says, and
whether it is specific intent or the language of the Espionage Act, but
some kind of intent.
Second, I do think it is important to say what I have heard people
from the CIA say to me privately and say publicly in different con-
texts, some kind of way to make it clear that republication is not
covered. That is to say, putting aside for the moment the people who
ferret out the identities of CIA agents and go out and publish them
in these types of publications, we should at least try to make clear,
I think, that whatever the intent of the second or third or fourth
party, who simply repeats the name which is already out in "Covert
Action Bulletin," that there is no liability.
Third, I think you need some kind of so-called whistle-blowing
defense. I think that if what the agent has done is illegal under Ameri-
can law, that it should not be made criminal to disclose that illegality
and to name the agent who has committed the illegal act.
And finally, I think that you should make it clear that the informa-
tion has to be classified. In most cases, it will be. I believe that that
is a hard point, but I think it is an important point to make it clear
that, at the very least, it meets the level of classification.
Senator SIMPSON. I appreciate your views very much.
Yes, Sir?
Mr. HILPERIN. Let me not repeat everything he said, including the
first part about we may not be able to do it all.
I would suggest that one should give the Government two alterna-
tive situations in which it can proceed under this. One is the language
that the Justice Department endorsed in June, which Mr. Keuuch said
he abandoned only because he could not get a majority. This commit-
tee may have a majority for it. And that is the language that such dis-
closure is based on classified information.
Senator SIMPsoN. Maybe after November 4
Mr. HALPERIN. We are certainly prepared to wait, I assure you of
that.
And, as an alternative, that such a disclosure is made either with the
intent or with reckless disregard of the fact that it placed a human life
in jeopardy. In other words, I think the Government can constitu-
tionally punish it, although I would not advocate it, either if the dis-
closure is based on classified information or if the disclosure places a
life in jeopardy, assuming all the other points, of the intent and the
pattern of activities and so on; either one of those alternatives with
the other material would, I think, produce a statute which, although
I would not advocate it, I think would be constitutional.
Senator SIMPSON. Jerry, you are uncharacteristically silent, and I
would like to hear anything you might have.
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Mr. BERMAN. I would just say that prior to June or July-that
seems to be a very important date-there were two statutes that ac-
complished what Mr. Abrams and Mr. Halperin are getting at. One
was the original names of agents bill which was in S. 2525, the first
intelligence charter, which was based on an intent to place a life in
jeopardy. The second is Senator Bentsen and Congressman Wright's
bi'1, which was introduced 2 years ago, which applied to insiders who
had access to classified information and had a narrow conspiracy
window for reaching outsiders in conspiracy with them.
Senator SiMrsoN. Thank you. I appreciate that.
Mr. Rowan?
Mr. ROWAN. Could I just address this briefly, because I do not
believe that you can write the kind of legislation you want to protect
agents and still pass constitutional muster, which I understand is Mr.
Abrams' point, although I certainly like the suggestions that he made
regarding ways to try to make the legislation less objectionable. I like
his suggestions more than I like the ACLU's, and I will give you a
reason for that.
The intent to harm, bringing a covert agent into the possibility of
being harmed, bothers me, because I have had personal, firsthand ex-
perience with this type of thing. We did an interview with a spokes-
man for the CIA, a spokesman. He was selected by the Agency to
appear on NBC television to refute criticism that the Agency's intelli-
gence analytical capability was defective. On one side, we had Otis
Pike, speaking for himself and for the committee he once headed,
suggesting that there were serious areas where the CIA had failed
to anticipate trouble abroad. The person who answered these criticisms
insisted on appearing in silhouette, in the dark, to not be identified.
Now, that was the ground rule, and I was glad to go along with him.
It certainly weakened the CIA's case, to have a guy appearing looking
like a spook, but that is the way they wanted to do it, and that was fine
by me. We would have loved to have, had Stansfield Turner, but he
turned us down. According to the ground rules, we did not identify
this man.
Why did he insist upon that happening? The reason is, he said, "I
go abroad. I do not want to be the victim of a bunch of terrorists."
That is why I have problems with the question of whether a person
will come to harm. Giving any name out might bring them to harm.
My wife once worked for the State De artment and had "FSR" be
-
hind her name. Now, she was no intelligence operative, but suppose
she got named in the "Covert Action Information Bulletin"? She
might actually bin jeopardy some day if she chooses to go on a vaca-
tion abroad. It is just too nebulous. I cannot find any way to deal with
it that makes me think, "Wow, we have got this problem solved." And
I know that the committees on the House and Senate side have tried
to solve this problem. They have been very conscientious in trying to
write a bill that would be constitutional, and think they have failed.
And I do not think I could do any better than they.
Senator SiMrsoN. You are the first honest guy that has come across,
because that is what we grapple with, trying to put something together
thst is appropriate. I appreciate your views.
I have been overly long, but I have a sense that somewhere along the
line, there is a sense of infallibility in the media. I just say that there
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is a sense of that with attorneys, there is a sense of that with Congress-
men. The sooner we all realize we are all in the same boat on infalli-
bility and that we do not let the mantle of infallibility take away our
right to protection under the first amendment, because that is what
will happen when any group in America feels that they are infallible
under the first amendment, without really seeking the reality of that
amendment. I know that sounds a little ponderous, but I really deeply
feel that. I guess that Boise thing was an example where they do not
want to take that case on up. Neither side wants to take the case up
now to the Supreme Court on the television videotape seizures, because
the prosecutor is alleged to be politically aggressive and filled with
zeal to get elected to some higher office, and one of the electronic
media reporters "groveled" to get into the pen, and once he got in, he
joined the citizens' committee inside, which takes away a little of his
objectivity in the process.
So there, we will come back to another rerun of the first amend-
ment. But I will conclude with the remarkable little editorial this
morning in our Washington "Post" about the Jean Seberg story. And
I respect this newspaper greatly; they have hung it on me, and they
have lauded me, both. But here is the answer.
What difference does it now make that the child, Ms. Seberg, and the operation
of the FBI, which plotted to harm her, are all dead? Just this. The news media
gave the FBI a black eye for the wrong reasons. When the invalidity of those
reasons is exposed, there is a danger that the justified as well as the unjustified
criticism will be ignored.
So those are the things that you are the watchdogs of America-
and Lord knows, I do not agree with you on many issues. You and I
have discussed that thoroughly. But thank heaven you are there. And
maybe we can get something done. At least, we are going to try to
give it a very conscientious effort.
I appreciate your being here and your willingness to take your
time to do that.
[The prepared statements of Messrs. Abrams, Halperin, Rowan,
and Yurick follow:]
PREPARED STATEMENT OF FLOYD ABRAMS
Mr. Chairman and Members of the Committee : I am honored by your invita-
tion to appear today and to testify with respect to S. 2216 and related legislation.
I wish to emphasize, at the outset, that I appear and speak on my own behalf
and not for any of the clients which I have sometimes represented. That being
said, I think it is useful for me to advise the Committee at the outset as to the
personal framework within which I approach any review of these proposals.
My own view is that the naming or listing of undercover intelligence officers,
agents, informants and sources by any of their colleagues is an outrage; and
that those who have engaged in such activities have disgraced themselves and
disserved both their colleagues and their country. I also appear as one who be-
lieves that covert intelligence operations, within proper bounds constitute one
useful and significant function of any nation's intelligence service. Without
covert intelligence operations we would lose much of our ability to deter ag-
gression before it occurs. For this and other reasons I personally favor legisla-
tion which makes criminal disclosure of information by former agents identify-
ing current agents.
I appear as well however as one who believes as I am sure every member of
the Committee believes that this Committee has a speciah-and perhaps disposi-
tive-role to play in assuring that before legislation is adopted every step is
taken and every effort made to conform to constitutional requirements. And
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that, more specifically, it is essential to draft narrow and not broad legislation-
legislation which, in the course of seeking to protect the identities of covert
agents, does not prohibit the exposure of wrongful CIA conduct, if it occurs,
and does not, as well, make criminal the disclosure of material already disclosed.
And it is for this reason that I oppose Section 501(c) of S. 2216 and will use this
opportunity today to urge upon you my reasons for concluding that no legisla-
tion barring what private citizens-press, general public, whoever-may say
should be adopted.
I start with two further introductory notes. The first is this: I have done my
best, as, I am sure, have other private citizens, in speaking to members of both
the Senate and the House and their staffs, to play as constructive a role as pos-
sible in this ongoing drafting process. I, as others, have suggested language
which, on occasion, has found its way into one bill or another; I have opposed
other language which-again, on occasion-has been rejected. When I oppose
today any version of Section 501(c) of S. 2216, it is because I have decided that
in legal jargon-it "doesn't write" ; that there is no way to phrase the ban
sought without violating the First Amendment. I will, in the course of my testi-
mony, suggest that some language is less offensive than other language. And, of
course, I hope that narrower rather than broader language is used, if any is. But
my own bottom line is this : I don't think any language that makes criminal or
runs a serious risk of making criminal disclosures by third parties of what they
learn from others in this area is constitutional. Hence-and for reasons I will
set forth-I believe any version of Section 501(c) cannot pass constitutional
muster and should be rejected by you.
The other introductory observation is this. The position of the Department of
Justice relating to legislation in this area has undergone significant, near-radical
change between the date of the testimony of Associate Deputy Attorney General
Keuch before the Senate Select Committee on Intelligence on June 24, 1980 and
his testimony on August 1.9 before the Subcommittee on Civil and Constitutional
Rights of the House Judiciary Committee. It is almost as if the First Amendment
itself had been amended in the last 2 months.
In June, the then version of Section 501(c) of Section S. 2216 was sternly-
and, I believe, persuasively-criticized by the Department on the ground that it
would apply "to disclosures even of publicly available information by any voter,
journalist, historian or dinner table debater, if the disclosure is made `with the
intent to impair or impede the foreign intelligence activities of the United
States'" (p. 10). The bill was criticized, in part, on the ground that "a speaker's
statements about covert activities could be punished even though they are not
based on access to classified information, do not use inside methodology acquired
by the speaker in government service, and are unimbued with any special author-
ity from former governmental service" (p. ]1). Reference was made to the risk
that the statute, in its then draft form, might lead "a mainstream journalist"
(as if, incidentally, only "mainstream" journalists were entitled to protection)
"who occasionally writes stories based on public information, concerning which
foreign leaders are thought to have intelligence relationships with the United
States [to] fear that other stories by men critical of the CIA will be taken as
evidence of an intent to impede foreign intelligence activity" (p. 12).
All this was said in June. In August, Mr. Keuch testified on behalf of the
Department of Justice that these doubts have been assuaged-apparently
totally-in light of the new language of S. 2116 which, among other things,
limits violations of the statute to situations in which the identification of covert
agents by third-parties "based upon public record material" is part of a "pattern
of activities intended to expose agents."
Mr. Chairman, I agree that the restriction of Section 501(c) to situations in
which disclosures are part of a "pattern of activities intended to identify and
expose covert agents" is useful. But such a limitation still does not go far enough
to overcome the First Amendment concerns which Mr. Keuch's former testimony
eloquently articulated.
Let me offer a few examples to you of why that is so.
Suppose, for a moment, that an enterprising journalist comes to believe that
the CIA is or was involved in gross improprieties-in, for example, illegal con-
duct threatening the very structure of our nation. Suppose the conduct involves
spying on Americans in America. Or participation in some Watergate of the
future. Or, to imagine what we all trust is the most unimaginable scenario of all,
complicity in assassinations within the United States. If a series of articles were
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published about such matters naming names of those that engaged in illegal con-
duct, there could well be criminal liability.
As I have said, we are told that there is great protection in the fact that
under Section 501(c) the identification must be part of a "pattern of activities
intended to identify and expose covert agents to be criminal." And that is some
protection. But might not the series of articles that I have described constitute
just such a "pattern"? And how, in any event, can the publication of the same
article by two individuals lead to criminal prosecution of one-because it is
part of a supposed "pattern"-and absolute for another?
The statute also says that there can be no liability unless the accused has
"reason to believe that their disclosure would impair the foreign intelligence
activities of the United States." But that "reason" may well exist in each of
the examples I cited above. Who, in any event, is to decide when a journalist has
"reason to believe" publication would "impair" our intelligence efforts? Such
"reason to believe" could be argued to exist any time the press is advised
prior to publication of the CIA's views that one story or another should not,
in the name of foreign intelligence operations, be published. It could be urged
to be present even when the names mentioned had already been publicly-even
notoriously-disclosed, so long as the Executive Branch of the United States
had not previously acknowledged the intelligence relationship of the individual
by the United States. And how, in any event, could even the risk of prosecution
do anything but significantly inhibit freedom of expression-particularly when,
in the language formerly used by the Department of Justice, punishment could
be meted out to individuals even though their statements were "not based on
access to classified information, [did] not use inside methodology acquired by
the speaker in government service, and [were] unimbued with any special au-
thority from former governmental service."
At its core, Section 501(c) flies in the face of first principles of the First
Amendment; one is that while government may try to keep information secret,
the disclosure of information which has already become public may not later be
criminally punished. Indeed, as phrased by Chief Justice Burger, "The gov-
ernment cannot restrain publication of whatever information the media ac-
quires-and which they elect to reveal."'
Beyond these objections to Section 501(c), I would urge the Committee to
consider this question : law aside, even constitutional law aside, is it really neces-
sary for first time in our nation's history to attempt to make criminal the publi-
cation of material which is essentially within the public domain?' Ambassador
Carlucci has testified that even if all information were public, there could and
should still be liability ; this is absolutely unprecedented-and terribly dangerous.
I would urge upon you that whatever you may decide to do with respect to the
disclosure by CIA agents or the like-and I, for one, favor such legislation-
that you adopi no legislation which bars the rest of the American people from
disclosing fully the activities of our government of which they learn, particularly
when what they learn could reflect on improper or illegal conduct by the Com-
mittee itself. To do otherwise would not only deprive the public of information :
It would deprive us all of credibility as we deal with each other-press with
public, citizens with each other.
I wish to emphasize that the problems I have testified to are not drafting
problems. The Senate and House staffs that have worked on this legislation are,
of course, of unusually high caliber : the Department of Justice has done its best ;
outsiders, myself included, have done ours. The problem is substantive. If you
make illegal, under almost any circumstances, the publication of material which
(a) has already been made public; (b) may disclose wrongdoing of the most
dangerous nature by the Agency itself; and (c) need not even be classified.
our nation starts down a path it has wisely never before trod.
The offensive, almost obscenely so, nature of some of the material that this
statute seeks to bar leads us to consider the legislation. But we should not, I
believe, yield to the temptation.
Mr. Chairman, I have testified previously as to my views on the drafting of
other aspects of the legislation. Your staff has my comments and I will not
1Houchins v. KQED, Inc., 438 U.S. 1, 13-14 (1978) ; see also, Smith v. Dailan Mail
Pub. Co., Inc., 99 S.Ct. 2267 (1979) : Landmark Communications, Inc. v. Virginia, 435
U.S. 829 (1978) : Oklahoma Publishin(r Co. v. District Court, 430 U.S. 308 (1977)
Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975).
2 See, United States v. Heine, 151 F.2d 813 (2d Cir. 1945).
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repeat them here. What I will take the liberty of repeating is this : I know that
it is not easy, when the CIA seeks legislation designed to protect the lives of
those who work for us all, for you to conclude that the legislation goes too far;
that there are countervailing interests. But the interests that I would urge upon
you are not small ones. Judge Murray Gurfein, in deciding the Pentagon Papers
case in favor of The New York Times, put it this way :
"The security of the Nation is not at the ramparts alone. Security also lies in the
value of our free institution."
That says, as well as any words known to me, what I would urge you to bear
in mind as you engage in the difficult task that lies before you.
PREPARED STATEMENT OF MORTOIc H. HALPERIN
This is One of those moments that test our commitment to the principles of
the First Amendment. It is precisely when we see conduct that we cannot con-
done-particularly conduct which places in jeopardy the lives of Americans who
are serving their country-that there is a temptation to ignore the First Amend-
ment and to set out to punish those whose actions we deplore.
That is, we regret to say, precisely what the Intelligence Committee has done.
S. 2216 as reported is unconstitutional on its face. It would reach, chill, and
punish speech which is clearly and unmistakably within the protection of the
First Amendment. It would do so not because anyone intends to cover that speech
but because of a determination to draft a statute which would insure the indict-
ment and conviction of a particular group of people.
Having examined the bill very carefully, read the testimony in support of it
and listened to the hearings on a similar bill in the House Judiciary Committee,
we can best illustrate the problems which this legislation creates by presenting
some examples of legitimate and protected activity which is covered by the bill
as reported. You will find it difficult to believe that the bill covers these situations
but we can assure you that it does.
1. A professor interested in U.S.-Cuban relations is preparing a study of con-
nections between the U.S. government and Cuban opposition groups. He seeks
to discover whether any of the Cubans recently indicted in the U.S. for terrorist
acts have ever been sources of operational assistance to the CIA. In conducting
his research he does nothing but read official U.S. government publications. From
these documents he learns that the CIA is attempting to keep the identities of
all of those Cubans who provided it with operational assistance secret and that
the CIA believes any disclosure of such names would hinder the intelligence
activities of the U.S. He also learns the identities of two sources of assistance
to the CIA and discloses those identities in a scholarly article on U.S. relations
with the Cuban opposition.
A reporter for the New York Times has also been interested in learning which
Cubans were in the past sources of assistance to the CIA in order to then trace
their role in right wing movements in Latin America. The reporter engages in
normal investigative reporting techniques. He asks his sources in the intelligence
community for leads ; he talks to members of the Cuban exile community. None
of these investigations produces any leads. The reporter then comes across the
article in the scholarly journal and decides to write a story about it. Routinely,
he calls the CIA for confirmation. He is informed that the CIA tries to keep
all such relations secret and believes that the publication of a story in a news-
paper disclosing identities previously published only in a scholarly journal would
hamper the intelligence activities of the U.S. The reeporter writes a story in which
he quotes verbatim and with attribution the paragraph from the scholarly article
which includes the names of the two Cubans who helped the CIA.
Both the scholar who has simply made deductions from U.S. government offi-
cial documents and the reporter who has simply quoted verbatim the previously
published paragraph would have violated this statute.
2. A reporter for a Catholic magazine hears a rumor that the FBI has re-
cruited Catholic priests to inform on the activities of the Puerto Rican indepen-
dence movement in the United States. The FBI is conducting a counter-in-
telligence operation ostensibly to determine the degree to which the indepen-
dence movement is controlled by Cuban intelligence. The reporter believes that,
in fact, the FBI investigation is aimed at disrupting lawful political activity.
The reporter talks to members of the Church, those active in the independence
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movement, and to priests. She also reads official FBI reports and learns of the
FBI's belief tnat the exposure of the identity of any FBI informant jeopardizes
FBI intelligence activities and she learns of the FBI's efforts to protect such
identities. Learning the identity of two agents by her investigative efforts, but
without getting any information from official sources, she publishes an article
identifying the priests and showing that they are reporting information about
lawful political activity.
A reporter for the Washington Post doing an update story on FBI counter-
intelligence activities in the U.S. asks political groups with foreign connections
if they have identified any FBI informants in their midst. None have. He then
reads the article in the Catholic monthly and after checking with the FBI prints
a story about it.
Both reporters would have violated this statute.
3. An investigative reporter for the Wall Street Journal sets out to determine
the degree to which the CIA is using the authority granted by Executive Order
12036 to gather foreign intelligence information from American firms abroad by
seeking to persuade employees of the firms to provide the agency with informa-
tion. He proceeds by interviewing officials of American multinational corpora-
tions who work overseas to determine instances when the government seemed to
come into possession of information that the company was trying to keep secret.
By these means and without any access to classified information he concludes that
much information is reaching the CIA from American companies through sec-
retaries who are recruited by the agency in overseas offices of the companies.
He writes the story without any of the names of the informants but then he and
his editors decide that the story will lack credibility without names. They select
one individual who will be returning to the U.S. shortly in any case and include
his name in the story.
The reporter would have violated the statute.
These examples, and we could produce a great many others, demonstrate that
the statute as written clearly covers those engaged in legitimate newsgathering
and reporting fully protected by the First Amendment who include names in
their stories because, in their judgment the inclusion of the names is necessary
to convey to the reader the full implications of the story or to make the story
credible. These are, we believe, also all instances where no lives were placed In
jeopardy even by the original stories and certainly not by the quoting of them in
newspapers. In all of these cases neither of the protections written into Section
501(c) would have been of any value. All of the people involved were engaged
legitimately in "a pattern of activities intended to identify and expose" in-
dividuals included within the bill's definition of covert agent. In every case there
would be "reason to believe" that the disclosure "would impair or impede" for-
eign intelligence activities are defined. Moreover, "discloses" is defined so as to
include republication.
We do not believe that the problem is one of drafting ; rather we believe that
the efforts of the past year and one half to draft a statute indicate that no
legislation which covers those without authorized access to classified information
can be drafted in a way which insures the conviction of those who are the clear
targets of this legislation without being plainly unconstitutional.
As the committee of the Congress most clearly responsible for assuring that
the protections of the Constitution are not taken away by legislation we urge
you to strike section 501(c) from this bill. Congress could then this year pass
the legislation covering those with authorized access and leave for the next
Congress the effort to work out within the context of the charter coverage of
other acts.
(Recognizing the realities of the situation we are constrained to say that at
the very least we urge this committee to adopt the Bayh amendment offered in
the Intelligence Committee rewriting section 501(c) and to add an affirmative
defense that the identity exposed was not learned from classified information.)
Regardless of what is done with section 501 (c) we urge the Committee to take
a close look at the definition of "covert agent" included in this bill. Almost all
of the public discussion of this legislation has focussed on American CIA em-
ployees serving overseas in situations where revelation of their identity could
place their lives in jeopardy. In fact, the definition is far broader. It covers
not only American but foreign nationals, not only those serving abroad but many
serving in the United States. It covers not only employees and agents but also
informants and sources of operational assistance and it covers many individuals
whose service has long since ended.
We urge this Committee to make this in fact an agents' identity bill limited to
employees or agents of the foreign intelligence services (including the FBI) who
are operating abroad.
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We recognize that the pressures to act are very strong and we commend this
Committee for insisting that the bill required another look. We hope that having
looked this Committee will act in a manner consistent with the dictates of the
First Amendment. We are sure that it will.
PREPARED STATEMENT OF FORD ROWAN
1 sympathize with the desire of the CIA to protect its agents, and the FBI to
protect its informants, and the NSA to protect its sources and methods, and the
DIA, the DEA, the IRS, and the other agencies which use confidential sources.
It might surprise you to hear that from someone who has reported on some of
these secret activities, but reporters also must have confidential sources to accom-
plish our jobs.
I am willing to go to jail to protect the identity of a source who gives me
information, so I can understand why the CIA wants to send someone to jail
if he reveals the identity of one of the agency's agents.
But I have great concern about the constitutionality of a bill the Senate
Intelligence Committee referred to on its witness list as "the Agee bill." I have
reached this conclusion even though I am repelled by the activities of Philip
Agee and the Covert Action Information Bulletin.
Furthermore, I sympathize with the desire to shield American intelligence
officers and agents from publicity which could endanger their lives.
However, I have serious reservations about whether this proposed legislation
would prove to be effective. Moreover, parts of the proposal seem to be uncon-
stitutional.
Although I have tried to avoid letting where I sit determine where I stand on
this issue, let me describe my own background. I have been a reporter for 15 years,
eleven of them in Washington. I resigned from NBC News in December because
I felt that NBC was irresponsible in broadcasting a half hour unedited program
from Teheran which featured a monologue from a spokesman for the Iranian
terrorists. The so-called hostage program provided a primetime propaganda plat-
form for terrorists.
After my resignation from NBC I became a visiting professor of journalism
at Northwestern University. In April I joined the law firm of Sanford, Adams,
McCullough, and Beard, it North Carolina firm, as their counsel in Washington.
As a lawyer I am specializing in First Amendment and communications law.
I am also doing some work as a commentator for a new organization, the
Independent Network News, which now has 30 television stations around the
country.
Although it is not always easy to pursue both legal and news activities, for
the purpose of discussing the subject matter before this committee today I may
have a unique perspective.
I first became involved in reporting on the CIA and other intelligence agencies
in 1974 for NBC News, and most of my time until early 1978 was devoted to
this subject. In 1978 my book about surveillance and privacy, Technospies, was
published by Putnam's.
During the course of the investigations of these agencies I learned both the
best and the worst about the people who serve their country in the intelligence
community. Most of them are honest, intelligent, patriotic. Some, however, fit
this description : " . . men of zeal, well-meaning, but without understanding."
That quote is from Justice Brandeis who warned that "the greatest dangers to
liberty lurk in the insidious encroachment of men of zeal, well-meaning, but
without understanding."
The disclosures of recent years, although widely condemned by some as under-
mining the effectiveness of the CIA, may actually have helped intelligence officers
regain an understanding of their duty within the constitutional framework. The
harsh spotlight of publicity may have helped the CIA refocus its energies away
from law-abiding American citizens onto its true targets.
Of course, reporters in their rush to expose illegal and ill-advised covert
activities also run the risk of becoming zealots who mean well but lack the
understanding to flt their stories into a broader perspective.
My own hunch, however, Is that when future historians look back at this
period they will conclude that the nation was strengthened by the disclosures of
official wrongdoing in Watergate, the domestic surveillance and foreign assassina-
tion plots, the FBI's covert action program directed against Americans (Cointel-
pro), the misuse of tax records, the massive eavesdropping on overseas com-
munications. F-1...... of these lawless activities was fought on the grounds
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that national security could be endangered. But a nation's true security some-
times depends less on which secrets it keeps than upon which values it upholds.
My purpose is not to lecture this committee's conservatives on the importance
of preventing another intrusion of the government into the private sector any
more than I want to remind the liberals of the need to protect civil liberties.
Rather than sling slogans around let me say that I am impressed by the careful
effort that this committee and the two intelligence committees have shown in
balancing competing values. The two intelligence committee bills, H.R. 5615
and S. 2216, are better than some I examined back in January.
But I still think that this legislation is unworkable and unconstitutional.
First, I think Congress is within its power to tell government employees they
cannot divulge classified information of any kind, including the names of covert
agents. My only problem is that I do not think it will work. Some people will
leak information no matter what the rules, no matter what the penalties. An
insider who feels strongly enough that a clandestine operation is wrong and
is willing to disclose it probably will base his decision on whether to also name
names on reasons unrelated to potential criminal penalties.
Second, as to the category of non-government employees, the outsiders that
these bills target, my objections are much more strenuous. This category would
include the press and other private persons. Unlike CIA or military intelligence
officers, reporters have taken no oath to keep secrets. Congress should not, in
effect, try to force reporters into a secrecy oath. Reporters violate their respon-
sibility as disseminators of information when they are forced into keeping
secrets rather than permitted to evaluate whether what they have learned should
be published.
Let's face it: most reporters just do not usually come across this kind of
information, few pursue it, and very few want to name names at all. Believe
it or not, many reporters believe in many of the same values as you. Most are
patriots, but the day is past when simply waving the flag will convince a reporter
or editor to kill a story without exceptionally compelling reasons.
Few reporters want to see an intelligence operative's life endangered by having
his cover blown, or to see an ongoing secret mission derailed, or to see future
sources of information vital to this country's defense simply dry up for fear
of exposure. On the other hand, too many reporters have seen the phrase "na-
tional security" used to try to hide embarrassing and illegal conduct by govern-
ment agencies.
In covering the investigations of abuses in the intelligence agencies and in
writing my book I cannot recall a single instance in which I named the name of
a covert operative or of one of my sources inside the Intelligence community.
But I can conceive of instances where disclosure of names might be in the
public interest. Remember the uproar over alleged assassination plots against
foreign leaders a few years ago. When it became known that the CIA had
engaged in such plots there was disagreement within the government over
whether the agency was acting as a rogue elephant out of control. The public
had an important stake in finding the answer to that question. Official investi-
gators recognized the Importance of identifying some of those involved and
names were made public.
Some might argue that certain disclosures could he made by the press under
this legislation provided the reporter was not intending to impair or impede
the foreign Intelligence activities of the United States. While inclusion of the
intent provision in some of these proposals is an improvement over the CIA's
recommended language, it would not solve the dilemma posed by the example
listed above. Reporters who named names to get at the truth about the assassi-
nation plots usually were opposed to such plots and wanted to assure they did
not recur. People who revealed such plots and the plotters wanted to Impair
this form of intelligence activity. Most reporters may have hoped that dis-
closure would help the United States regain its moral stature, regain some of
the respect it had lost in the world, regain a steady hand over covert actions,
still they wanted to impair and impede this one type of Intelligence activity.
And there are other types of intelligence activities that ought to be impaired
because they impaired the civil liberties of American citizens. Disclosure of
assassination plots, drug experiments, spying on law abiding American citizens
has helped our nation's interest in preserving freedom at home.
Deputy Director Carlucci testified before the House Intelligence Committee
that reporters who disclose this secret information would only be prosecuted
If they "embark upon a crusade" to destroy the intelligence activities of this coun-
try. But the legislation recommended by Director Turner in February would
open the door for wholesale prosecutions of a broader class of offender. Instead
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of requiring proof of intent to harm intelligence activities, the CIA proposal would
punish anyone who discloses such information as long as he had the knowledge
that his disclosure is based on classified information. If a reporter knows the
identity of a secret agent and knows it's a secret, he would be liable if he pub.
lished it.
The CIA proposal talks of protecting "successful and efficient foreign intelli-
gence activities," but our nation has always been willing to sacrifice some
efficiency to protect democracy and freedom. An overly broad criminal provi-
sion giving the CIA bureaucrat with a secret stamp the power to stamp out free
expression is too big a price to pay for efficiency.
Frankly, I do not think that any of these proposals-whether containing the
intent provision or not-will prove successful. If the government cannot stop
the disclosure of atomic secrets I doubt that it can stop disclosure of the names
of some of its spies. Spilling atomic secrets seems much more threatening to
national survival.
The H bomb article was based in part on unclassified information available in
government libraries open to the public. That's relevant to our discussion today,
because this bill would punish a reporter who combed through open sources such
as biographical registers to identify cover officers. The government extracts a
high price from journalists when it seeks to punish them for revealing what the
government itself was too inept to keep secret.
It is well known that for years it was possible to identify CIA personnel on
embassy staffs by checking State Department registers. The government itself
made it easier for outsiders to figure out the identities of CIA operatives. So
before you try to punish the outsiders I think you could tighten secrecy and use
more care in choosing those who will know the secrets.
That is the path I would recommend for you : strengthening the internal pro-
cesses for intelligence agencies while avoiding new prohibitions which would
unconstitutionally interfere with freedom of the press.
Democracy works best that knows most.
Some conflicts between the press and government are healthy-symptomatic
of a dynamic society with competing values. An independent press with watch-
dog functions, the tradition of open criticism, the disclosure of corruption, the
reform of institutions-these all contribute to a vibrant society.
Society-the public-pays a price when government attempts to seal off part
of its activities from public view. In some cases the courts have sided with na-
tional security, due process and privacy rights in limiting access to informa-
tion by the media. In other cases the courts have evaluated, then decided against,
claims that publication of certain information would harm the national security.
First Amendment, guarantees may not be absolute, but they should be tampered
with only very cautiously. These proposals are unnecessary, unworkable, un-
constitutional.
PREPARED STATEMENT OF SOL YURICK
I am a writer and member of PEN American Center on whose behalf I address
this committee today. I have published four novels, "The Warriors"-recently
made into a major motion picture-"Fertig," "The Bag," "An Island Death" and
a book of short stories "Someone Just Like You". I have also written for such
newspapers and magazines as Esquire, The New York Times, Ms., and The Na-
tion. I am a Guggenheim Fellow.
Aside from the Constitutional issues, which will be addressed by those more
qualified to speak than I, there are matters raised by S. 2216, specifically sections
501 (a), (b), and (c), which to me, as a writer of fiction and articles on a variety
of topics, are alarming.
The very broadness of the language of this section, its very vagueness, allows
for a looseness of interpretation that ultimately begins to invade a very delicate
area of human endeavor, namely the memory and the imagination. This is to say
nothing of granting a limitation on the way people like myself make a living.
To put it another way, the law allows for what is, in effect, an invasion of the
mind itself, for one is enjoined to forget what one has learned,
More specifically, an example. Supposing, in the course of searching for ma-
terial on which to write a story or a novel, I read newspapers, listen to a variety
of stories and gossip (and gossip is the stuff of literature, whether we're talking
ordinary fiction for a mass market, or something more high-flown, let's say
Dante's "Divine Comedy"), read books. Out of this, the stuff of a story begins
to form. Let's say an intelligence tale, which more and more constitutes one of
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the realms of serious literature. I write the story or the novel. Now in the course
of putting together the material, and changing it in the ordinary process of writ-
ing, I have chanced to hear sensitive, classified material, which has been delivered
as gossip. And I don't know it's sensitive, or classified (and we must never forget
the intelligence community's penchant for classifying just about everything).
Have I committed a crime? In short, am I stopped from practicing my livelihood?
Or to carry it further : let's suppose that I've just worked with newspapers. I see
various items. I put them together. I am fascinated by a story. Someone has been
found dead in a motor boat. There is speculation as to whether he has been mur-
dered (everyone will understand what case I'm talking about). Who has done
the murder? The Russians'? The Cubans? And so forth. My flight of imagination
takes me in another direction. I imagine an internecine war going on within the
intelligence community and write such a book. Now a novel or a story can ad-
vertently, or inadvertently, point toward covert intelligence actions. Am I sup-
posed to submit my writing to the proper intelligence agency . . . the whole
intelligence community?
While there is no provision in the Constitution for freedom of the imagination,
surely this law would force prior restraint not only on my speech, but on my
imagination. Are we generating a force somewhat similar to the organization the
Japanese had before World War II, the Kempitai, also known as the Thought
Police? Are we generating conditions similar to those found in the Soviet Union?
There's another dimension. The record of the intelligence community has left
much to be desired in the areas of gathering intelligence, covert operations, and
disseminating intelligence in the form of disinformation. Certainly in the past
the intelligence community has invaded and suborned sections of the literary
community, thus upsetting, if one can call it that, the natural market forces,
tending to favor one form of literature over other forms. I make reference to the
money poured in the past into the Committee (and Congress) for Cultural
Freedom. This has insured the success of certain forms of literature and imagina-
tion. Stories have been fed to certain authors who have written spy novels.
Authors in foreign lands with oppressive regimes have been brought over there--
or at least their works have gained international prominence- not necessarily
based on merit. At the same time, others have been ignored.
There are two reasons for bringing this up. If I find that certain authors are
favored by the intelligence community, and thus gain an international reputa-
tion based on reasons other than merit, am I to say nothing about this in an
article? Because, after all, this is a condition which, as I have said above, in-
terferes with the natural forces of the literary market place. The second reason
is that, if such authors favored by the intelligence community are endowed
with an international reputation and become well-read, or at least supported,
there will be an effect on the receptivity mechanisms of the reading public,
thus altering its imagination and making it unreceptive to other forams of fiction,
automatically unbelieving of any dissident writings.
Penultimately, it is my feeling that the greatest producer of fiction is the
intelligence community itself. before which the mere isolated and imaginative
author must wonder in awe.
We are talking about truth here: The truth that heals and perhaps saves.
If the intelligence community listens only to itself and to its own fictions, if
it doesn't want to listen to alternative views, then, indeed the country is doomed
to stagnate and blunder blindly in the world arena. As in nature, adaptability
in society is the key to survival for any natural population, or indeed, for any
grouping or institution whatsoever. Adaptability is based on knowledge, in-
formation, intelligence, if you will. Even the lowest of animals processes in-
telligence which its body analyzes. The signs of impending doom are gathered,
analyzed, and the population takes action to survive. When the receptors to
the environment are limited, then disaster lurks. If nothing else, imaginative
writers are the most sensitive of these distant early warning systems.
I would like to conclude with this final statement. America has always made
classical parallels, learned its history from the past : Greece and Rome. It was
not only the rise of the Praetorian Guard and its role in kingmaking that led
to a horrendous decline of Rome, but also its intelligence system : The Fru-
mentori. I would remind the committee to look back at what happened to the
Senators of Rome, and remember that no one will be immune to this expansion
of powers.
Senator SIMPSON. The hearing is concluded.
[Whereupon, at 1:40 p.m., the committee was adjourned.]
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125
APPENDIX
OFFICE OF THE DEPUTY ATTORNEY GENERAL
WASHINGTON, D.C. 20530
Honorable Birch-Bayh
Chairman, Committee on Intelligence
United States Senate
Washington, D.C. 20510
Dear Chairman Bayh:
I am writing to reiterate the position of the Department
of Justice concerning whether and in what form Section 501(c)
of the Intelligence Identities Protection Act now before the
Committee should include an element relating to the state
of mind of persons, other than present or former government
employees, who identify clandestine intelligence personnel
or agents.__ It is my understanding the provision to be
considered by the Committee now consists of essentially the
following language:. _
(c)- Whoever, in the course of a pattern
of activities intended to identify
and expose covert agents, discloses
any information that identifies-an
individual engaged or assisting in
the foreign intelligence activities
of the United States, knowing that
`the information disclosed so identifies
the individual and that the United
States has taken affirmative measures
to conceal the individual's classified
intelligence relationship to the
United States'....
This formulation substantially alleviates the constitu-
tional 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 specific "intent to impair or impede" U.S. intelligence
activities.
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Because of the significance of this matter, however,, it
has been our view from the beginning that such legislation
as is enacted 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.
Charles B. Rcnfre
Deputy Attorney General
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UNITED STATES DEPARTMENT OF JUSTICE
OFFICE OF THE DEPUTY ATTORNEY GENERAL
WASHINGTON, D.^.. 20530
lic_rrvle Morgan F. 1i phy
C.a Subcomtmittee on legislation
Per ' t Select Comnittee on Intelligence
F.ase of Representatives
5sh~.-:_ n, D.C. 20515
e_n I testified before your Subcommittee concerning the proposals
t at !!a 6 been made for a new criminal statute protecting the identities
of intelligence officers, agents, and sources, I was asked to respond in
writing to sane legal questions that were raised by merrbers of the
C n t_ee during the course of my testimony. The central question
ccncer_s the constitutionality of the proposal set forth in ? 501(b) of
5.~. 5515. Section 501(b) would make it an offense for anyone tc disclose
infc-.at?on identifying a covert intelligence officer, agent,'or source --
even c:fnere the information is assembled from the public record -- if the
identity is "classified" at the tine of the disclosure and the disclosure
cads :.ith an intent to impair or impede the foreign intelligence
ti hies o`- the United States. At the hearing I expressed concern that
this proaosal tight chill constitutionally protected speech; and I noted
that t^e Department of Justice favored a different approach. I was asked
by se;eral.,m ers of the Committee whether, in our view, ? 501(b) is
cc-.sitt:ticnal or not. This is a difficult question. Permit me to
it as briefly and as simply as possible.
A first principle of adjudication under the First Anandment is that
speech cannot be punished unless it creates a danger that the Government
is entitled to prevent. See Schenck v. United States, 249 U.S. 47 (1919);
Delis v. United States, 2 U.S. 211 (1919). I -think it clear that there
are =c7- -rstances in w ich publication of the identity of an intelligence
officer, agent, or source can create a danger that will justify criminal
prosecution of the publisher under the Constitution. At the same time,
I trip it clear that in sure other circrnnstances forinstarice, where
p, c
! 1C.:t16~~7 Rr ',SB-T ? ' a?^ r; ryf i- el r?a -
r '-a -: i to the c Drld. ec lion of the -publisher would
c> 'n-3-tiess d questionably constitutional. In short, a naked prohibition
st p. lication of intelligence identities can have both constitutional
-c t- stitutional applications. The lawmaker's task is to find
legislative language that will confine the prohibition to the cases in
shic-h prosecution can constitutionally proceed and will exclude prosecution
in tha ~ cases in wick it cannot.
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We are obliged of course to track the Constitution in any legislative
endie or, but ve cst prcceed with special caution where First Arren.lrent
values are at stake. An error here can doom the entire enterprise.
Undar the First Emmdzent the viability of a criminal statute does not
depar.d entirely ton boy it applies in a particular case. Even if the
conduct that the Goverr_wit seeks to punish in a particular case is not
protected by the First landment, the court may ask whether the statute
is drafted so broadly that it could be applied in other cases to reach
rotected speech and because of that "overbreadth" perhaps chill protected
speech. If the court so finds, it may hold the statute void for overbreadth.
In othe: words, the possibility of an unconstitutional application may
taint the statute and prevent its use even in those cases where under a
re rm rowly drawn statute the conduct of the defendant might be constitu-
ticnally F isl_d. 1:7hile the doctrine of overbreadth is apparently now
-rd=going so= m:~nhosis, and under the current approach taken by
the SSupre e CoL^-t may not carry the force it once had, see Broadrick v.
Cklahora, 413 U.S. 601 (1973), it still is a doctrine o1 cautioon--v;Ech
:e cast observe.
In m3 view, ? 501(0) has the potential for constitutional and
L-icorstitutio_al applications. Given the current uncertainty regarding
the o-.7erbre_d h doctrine, I sinply do not know whether a Court would
find this r.-ac-e to "substantially overbroad" as to be unsuitable as a
vehicle for prosecution in any and every case; but I would respectfully
suit that there are other approaches that more clearly fall on the
safe side of the constitutional mark.
Let re co=are the approach taken in ? 501(b) to the approach taken
in 6 101(a) of the Depac- ht of Justice proposal. These two proposals
overlap at a number of points. The main difference between them lies in
the burdens they inose on the prosecution. Whereas ? 501(b) makes the
intention of the publisher the decisive criterion of criminal liability,
? 831(a) cruses on the source-of the information in uestion. Section
501(b) requires the Government to prove that e public er intended to
i-pal-* or irede the intelligence activities of the United States.
Section 801(a) requires the Government to prove that the publication was
based on direct or indirect access rn classified infor a inn that is,
foreign affaizs:
Tnede m criteria -- the intention of the publisher and the source
of the information published -- are very different, and they have a
different be,-ing upon the central constitutional question presented by
any cu-right prohibition against public speech: What danger does the
speech create? It ray be, as Justice Holhres once suggested, that if a
speaker intends to produce harm, his intention may itself increase the
risk that the ham will occur; but the Supreme Court has since taught
that all the ci crxrstances of the case must be taken into account before
the actual dangar of speech can be assessed for First Amendrrent purposes.
2r n s e~rd highly sensitive informer ion in the
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S: act may be innocuous in fact -- it may have no actual tendency to
create a danger the Govsrrment is entitled to prevent -- even though. the
crcc.ilections of the speaker are of a different character. See Brandenburg
395 U.S. 444 (1969).
This is why the question of the source of information can be i portant.
If the Gocerirrent proves that a publication of intelligence identities
was based on sensitive "inside" information, it may be rather clear that
the publication was harmful in itself. By making the classified information
available to others, the publication can bring to pass the very danger
the sec=itty s;-stem was designed to prevent. On the other hand, if the
-?lica=ion was based, not on inside information, but on information
-.aYated by research in publicly available sources, it m,y be far less
T b-- second difference between the two approaches falls sowewhere
in the range between policy and constitutional doctrine, and is the one
I stressed in my oral testimony. If the Government is required to focus
~an tba intention of the publisher in order to obtain a conviction, the
te.:ntation will be strong to rely upon evidence of his views and opinions
regarding foreign policy in general and intelligence activities in
particular. The problem is that much of this evidence could involve
crstit tionally protected expression; people are tied to ex* ress
vigorously an 021
in public. a ? 501 (b)-type pro-ii ition on
ds riva a persons from publicly-available sources is too broad
to pass constitutional ouster without an intent requirement, the addition
of an intent requirement that draws mainly on constitutionally protected
e:,-ressioos of views may not help greatly in defending against a constitu-
ticnal attack based on overbreadth.
Congressman Fa ler asked that I cocment on Fir. Floyd Abrams'
testimy concerning the constitutional question presented by ? 501(b).
lb. Abrams expressed the view that ? 501(b) is "flatly and facially
tm_.s=tuti.onal." As I have already said, I believe that ? 501(b)
cold have, unconstitutional applications, but because of present uncer-
tai.ty regarding the "overbreadth" doctrine, I an simply unable to
pre Lct whether a court would find the statute so "substantially over-
brcad" as to have no legal force whatever in any of the cases in u*aich
it migbr apply.
I an not sure I know the precise reason for the difference between
i=. Abnas' views and my own, but the difference may involve a very
fi= d.-_-ntat point. At places in his testimony lir. Abrams takes the
position that even though the United States may have power under the
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C:-s`itution to punish a government employee who discloses intelligence
:entities, there is no case whatever in which it has power to punish
parties (newsmen, in particular) who receive information about
elligence identities from government employees and publish it. I
disa ee. Tr-- First Fuendupnt is not "en absolute." There are dangers
that CM justify restrictive governmental action even where private
speech is involved, see Debs v. United States, supra; and as I have
_a`.1, in the field oTforeign anmilitary a fairs the publication of
ame kinds of sensitive information can present such a danger. While the
r e-r-as success of the Grnrrcment in maintaining the secrecy of particular
=aticn can be highly relevant in proving that publication of the
i_ fm .ation will cause harm, I think it clear that the danger presented
by the publication of a defense secret does not evaporate as a matter of
Len: silly because the information is transmitted prior to publication
rrcm cos person who is erployed by the Government to another (the publish
i::.n is not. In my view, the rather clear implication of the opinions of
a majority of the Justices in the Pentagon Papers case, New York Times
v. United States, 403 U.S. 713 (1971), is that the Constitution es
t the Government to proceed in a proper case older a properly
rafted cr -dnal statute against a private publisher of defense secrets.
Indeed, the prcposal set forth in ? 801(a) of the Department of Justice
bill is founded upon that proposition.
III.
D.: ng the course of m; testimony Congressman McClory asked about
Ey criticism of the "reason to know" language contained in ? 501(a) of
E.R. 555. I asked that I be permitted to respond to his remark in
:ritiflg.
policy consideration, not upon a point of law. Section 501(a) is broad
eno gi ,.o prohibit even disclosures of indirect identifying information
obtained from public sources, so long as cumilatively the information
has the effect o identifying an intelligence officer, agent, or sours
t:ith such breadth of coverage under the statute, I believe that as a
ratter of policy, grading as a felony is appropriate only where the
defend nt actually knew the identifying effect his disclosure would
have.
Section 801(a) of the Department of Justice proposal prohibits th
disclosure of intelligence identities where disclosure is "based on
pease.
The phrase is not intended to describe any particular form of
-
Te question
disclosure. It is intended instead to focus the inquiry on
of there the defendant obtained the information he disclosed. Read in
conjL-iction with the scienter requirement, the requirement regarding the
STAT
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sc.r a of the disclosure is intended to make the liability of the defendant
M=,. t= n (1) lmc.~ledga that the Government has attenated - revent
t 1is:losre c. Oration in ouestwn a established
knowledge
m e s
Tr_at scr_ o t could occtr in of di
V.
F_-.ally, Congressman Fouler asked whether 5 501(b)'s scienter require-
M-1: is similar to the provision of the Atomic Energy Act governing
cc -caticn of atcaic energy "Restricted Data". See 42 U.S.C. ? 2274.
M-_. Fc:_er's particular concern was whether, in prosecutions under ? 2274,
the Oc-:=_r_t-Zt has encountered any difficulties of the kind that I
des~~ad in =y criticism of the scienter requirement set forth in ? 501(b).
Sec`.in 2274 punishes the ccosm.nication of Restricted Data where the
cc-c==caticn is made with intent to, or with reason to believe the data
w M be utilized to, "injure th_ United States or ... secure an advantage
to --u:: foreign nation". H.R. 5615 would punish the publication of any
irfc:ration revealing intelligence identities where the defendant intends
the pt_,2ication to "impair or impede the intelligence activitieq of the
United S_ates." The Governer` may have to show the defendant's actual
kaS:ledze of, or at least reckless disregard of, the restricted nature
of the data under ? 2274, whereas the Government need only show negligent
disregeri of the identifying impact of disclosed information under ?
2274. The scienter requirements are thus both similar and dissimilar.
But in any event, we have had very little experience with criminal
prosec_ticns under 5 2274. Our limited experience does not shed such
lig::t c-. the kinds of problems we would encounter in prosecutions under
the stz yard set forth in ? 501(b).
the Cottee has additional questions regarding the Department's
vies these important issues., I will be happy to respond to them.
cc: :norable Edward P. Boland
:orable Rozrano L. Mazzoli
L .orable Wyche Fowler, Jr.
-orsble Robert McClory,
TZ0b~.~ 1..-
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132
THE NEW YORK TIMES, FRIDAY, SEPTEMBER 5, 1980
On June 24, a Justice Department
spokesman appeared before the Sen-'
ate Intelligence Committee to oppose a
bill making it a crime for anyone to
publish information - whether or not
classified - leading to the identifica-
tion of a covert agent of the Central In-
telligence Agency.
On Aug. 19, the same spokesman
told a House subcommittee that the
measure was all right after all. This
week the House Judiciary Committee
approved it by 21 to 8, with the full
House expected to follow suit. The Sen-
ate, where a subcommittee will hold
hearings today, apparently offers the
only chance to stop this dangerous and
unnecessary legislation that stabs the
First Amendment to its heart.
Why did the Carter Administration
change its mind? The Justice Depart-
ment says its objections were removed
when the bill's language was changed
to require that disclosures, to be crimi-
nal, had to be part of a "pattern of ac-
tivities intended to expose agents."
More likely, the Administration
jumped on the bandwagon after July 4,
when the home of a man alleged to be
the C.I.A. station chief in Jamaica was
attacked with automatic weapons fire,
after disclosure of his name and ad-
dress in the so-called Covert Action In-
formation Bulletin, In an election
year, the disclosure legislation im-
mediately became a popular cause in
Congress.
Finally, it's an election year for
Jimmy Carter, too, and his opponents
e charging that he's soft on national
security and has let down the nation's
guard. One way to riposte is to take the
kind of hard-nosed, know-nothing
stand exemplified by the bill's princi-
pal Republican backer, Representa-
tive Henry J. Hyde of Illinois, who told
the Judiciary Committee that if people
- just anyone - published the names
of C.I.A. agents, "They should be
treated like the criminals they are,"
not "permitted to hide" behind the
First Amendment.
But the legislation now moving rap-
IN THE NATION
Killing
Freedom
To Save It
idly through Congress does not aim it-
self exclusively at the Covert Action
Information Bulletin, or even at ex-
C.I.A. agents who disclose agency se-
crets, or former Government employ-
ees who violate secrecy oaths or classi-
fication rules. It in no way limits itself
to those who disclose classified infor-
mation. It makes no exception for the
publication of information already
available in public records.
Instead, this sweeping legislation,
sowing widely the seeds of an Official
Secrets Act, would make a criminal of
anyone who "discloses, with the intent
to impair or impede the foreign intelli-
gence activities of the United States, to
any individual not authorized to re-
ceive classified information, any in-
formation that identifies a covert
agent..."
That the Senate version would re-
quire such disclosure to be part of
a "pattern of activities intended to
disclose agents" is only a faint im-
provement, whatever the Carter Ad-
ministration might claim. A reporter
publishing, say, a series of articles
could be demonstrating such a pat-
tern, as might one who had published a
number of such articles over the
years. Yet, those articles might dis-
close reprehensible C.I.A. attempts
to assassinate foreign leaders, or to
infiltrate domestic organizations, or
to overthrow legitimate governments.
Nor is the requirement of "intent to
impair or impede ... foreign intelli-
gence activities" a saving grace. That
might be precisely the intent, and le-
gitimately so, of articles that would
expose in advance and thus prevent
something like the Bay of Pigs fiasco.
Such intent might also be "estab-
lished" If the C.I.A. had asked a re-
porter in advance not to publish a
story, for reasons however self-serv-
ing, and he or she published it anyway.
The key phrases are "any informa-
tion" if disclosed to "any individual
not authorized to receive classified in-
formation." Taken together, they
mean that any information - no mat-
ter ITT obtained, even from a public
and unclassified record - published
by anybody in virtually any form, If it
could be read to disclose an agent's -
identity, would be a crime. Such legis-
lation would impose a prior restraint
unprecedented in American history,
even on information that may already
be in the public domain.
It would give the C.I.A., for exam,
ple, just the weapon it wants to hide, or
prosecute disclosures of, embarrass-
ing or damaging misdeeds, failures'
and illegalities - spying on Ameri-
cans in America, or helping a Presi-
dent to cover up criminal activities, or.
infiltrating the clergy. Reporting such.
stories, even if clearly in the public in-
terest, would be virtually impossible
without risking disclosure of same
agent's identity - or at least risking
that the C.I.A. would claim that such
disclosure hfd resulted.
How can Stansfield Turner, the
C.I.A. Director, argue that this blatant
power grab is "vital to the mainte-
nance of an effective intelligence ap-
paratus and the successful conduct of
United States foreign policy"? That is
to say that only it free American insti-
tutions are undermined from within
can we be successful in the world. But
what is success, if not the protectlon?
and maintenance of those same free
institutions?
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The Boundaries of Free Speech
Those who are resisting the current effort
in Congress to protect U.S. intelligence
agents against the marauding of Philip Agee
and Louis Wolf offer two disclaimers They
are, they claim, as outraged as the rest of us
by the disclosures of Mr. Agee and his free-
lance protege, Mr. Wolf, who make it their
business to identify covert agents and ex.
pose them to injury or death. They also pro-
test that they do not consider First Amend
ment rights absolute, and ask only that the
legislation not "chill" legitimate reportorial
inquiryes.
The disclaimers must be taken at face
value; and Congress wouldindeed waste its
time if it passed a bill that would be easy
prey for the first court to take formal notice
of it.
Nonetheless, we may be sure that if the
cavils of the ultra-libertarians are heeded,
Congress will leave itself small leeway for
effective legislation. If the handiwork of the
Wolfs of this world is to be curbed, we must
face the risk that legislation strong enough
to curb it could tempt adventurous prosecu-
tors to interfere with legitimate reporting.
But while the danger to be dealt with is
real and present, the worries about a "chill.
ing effect" on the press are, as we shall sug-
gest below, dim and hypothetical. Moreover,
the libertarians may have met their forensic
match this time. There is no more zealous
advocate of strong protective legislation for
U.S. covert intelligence agents than Sen.
John Chafee of Rh a Island, whose uncle,
the late Zechariah hafee of Harvard Law
School, was in his dal a preeminent author.
Ity on free speech. With those credentials,
Senator Chafee is not easily depicted as an
enemy of the First Amendment. In defense of
the Senate bill he is co-sponsoring, he cites
his uncle's dictum that "the boundary line of
fro speech ... is fixed close to the point
where words will give rise to unlawful acts."
If that is the proper, boundary line, as we in
fact believe, there is no doubt that the Agee
and Wolf disclosures have crossed it, The
.1975 assassination of Richard Welch, then
the CIA's station chief in Athens, followed
within a month the disclosure of his covert
'function in the Greek press; and that infor-
mation came directly from Agee's Counter.
spy magazine. "Public Identification of Rich-
ard Welch," as was said at the time, "was
tantamount to an open invitation to kill
him."
More recently, Wolf's bizarre public Identi
fication oils CIA agents serving in Jamaica
(complete with details) was immediately fol-
lowed by a nocturnal attack on the residence
of one with submachine guns and explo
sives. No life was lost, but several U.S. agents
and their families had to be evacuated.
Those who make it their ghoulish business
to furnish the enemies of the US. with Infor-
ation that, Invites and facilitates violence
against its ublic servants obviously do not
approve of what those servants are doing. It
Is their right to disapprove; I
t is their right
agitate against the authority and policy
tauthorizes their activities.
But the issue befgre Congress is more
basic; It has nothing at all to do with the free
play of opinion or issent and everything to
do, rather, with outrageous disclosures that
place the authorized intelligence operati
ves
of the US. in physical peril and thereby tend
to confound and thwart a function that Con-
griis has seen fit to sanction. In the present
state of the law, the Agees and Wolfs are
apparently free to make these disclosures
undercover of the First Amendment.
The absolutism of the First Amendment, so
interpreted, lies in the impractical refusal of
its interpreters to recognize the boundary
line that commended itself years ago to
Zechariah Chafee ("where words ... give
rise to unlawful acts") and still commends it-
self to most of us. Or indeed any other
boundaryline, for that matter.
The debating trick,`,by which this absolut.
ism is argued by crllfcs of remedial 1egisla
tion is familiar. It consiaja in raising endless
hypothetical possibilities, all objectionable,
fully drawn, as we see it, than toe WUAW
proved this week by the House Judiciary
Committee - lays down a number of condi-
tions designed to distinguish between mali.
cious disclosure end mere reporting.
If the name of an agent, not previously ac.
knowledged, were disclosed the disclosure
would be unlawful only if it were within "a
pattern of activities intended to identify and
expose covert agents ...with reason to be-
lieve that such activities would Impair or
impede the foreign intelligence activltlee of
the US." In view of these provisos, the Sen-
ate intelligence committe's report of August
13 specifically rejects the ACLU's contention.
"A journalist," it declares, "writing stories
about the CIA would not be engaged in the
requisite 'pattern of activities' even if the
stories ... included the names of one or
more agents, unless the government proved
that there was intent to identify and expose
agents ... with reason to believe it would
impair or impede foreign intelligence activi-
ties." To meet the bill's standard of prosecu.
tion, the Senate report says, "a discloser
must be engaged in ... the business of'nam-
ing names., "
Probably no legislation can be both effec.
tin and foolproof; and there are fools about.
But effective government is often a matter of
choices, sometimes distressing and imper.
fect choices The present no-holds;barred
license for disclosure that covers everyone,
while permittin
the A
ees and Wolfs m
ur
g
g
p
-
which might eventuate if the law were mis. , sue their seditious business, is of debktable
used. That way lies not free speech and pres. usefulness to free speech and press legiti-
mately ..understood. But its perils and coats
disabling argument that we are powerless to
defend the cover of US. intelligence agents
abroad for fear of."chilling" legitimate in-
quiry and publication. Yet, interestingly,
their objections, hypothetical as they are,
have been heeded and reasonably answered,
by Senator Chafee and others.
Consider one example. In a memorandum
of August 4, the American Civil Liberties
Union cites, among the conceivable 'eabia-
tions" that might arise from passage of the
pending bills. the following: "An mvestiea-
gate burglars have CIA connections. She dis- scruples. to pprroottect our covert intelligence
covers that several of them do and that one and couhterlotelligence agents. Otherwise,
is a CIA agent. She prints that fact, naming it would be well to admit that we are too
the person." paralyzed by constitutional scruples to con-
Obviously, no such re rting should be \ duct an effective foreign intelligence system
thwarted. Would the bills now before Con- in this dangerous world, and stop asking our
grass do so? The Senate bill supported by PH. Ple to risk their lives in its service:
nator Chafes and others -and more care a can't have it both ways.
cripple US. intelligence capacity and to jeop-
erdize the lives and limbs of US, agents serv.
ing in dangerous and sensitive missions
No other free government on earth - to
say nothing of others unfree - remotely
begins to tolerate the casual (and sometimes
malicious) interference with its intelligence
services that Americans have come to coun-
tenance in the name of protective "expo-
sure,"by those who may or may not have the
nation's interest at hart. We think Congress
should do whatever is necessary, taking due
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