LAW AND NATIONAL SECURITY INTELLIGENCE REPORT

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90-00806R000100080011-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 10
• Document Creation Date: December 22, 2016
• Document Release Date: September 13, 2010
• Sequence Number: 11
• Publication Date: June 1, 1982
• Content Type: OPEN SOURCE

STAT
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~' / P AMERICAN BA
STANDING COMMITTEE Law and National Security
INTELLIGENCE REPORT
Morris I. Leihman, Chairman June 1982
House-Senate Conference Agrees
On H.R. 4, Agents' Identities Bill
On May 17, the House-Senate Committee of Con-
ference on H.R. 4, the Intelligence Identities Protec-
tion Act, released a report reconciling the several
differences between H.R. 4 as passed by the House in
October 1981 and the same bill as amended by the
Senate in March 1982. The House and Senate ver-
sions agreed on all fundamentals; the differences
here minor, but significant enough to require careful
consideration.
Particularly interesting to those trho followed the
legislation trill he the discussion of'601(c), the section
which deals with disclosure of agent identities by those
with no access to classified information. There was no
diffe re nce hetti'e e n the House and Senate versions on
this point, but a number of iritnesses and committee
members on both the House and Senate sides ex-
pressed the belief the language of 601(c), as adopted,
would restrict the freedom of the press to expose
wrongdoings by members of the intelligence com-
mnnity. The report seeks to set these f ears to rest.
We reproduce helots extensive excerpts from the re-
port of the Committee of Conference because of its
importance in establishing the legislative intent of
H.R. 4, and because tie believe our readers trould pre-
fer to have the original text to a paraphrased text.
Although the Senate amendments to H.R. 4 did not
affect the language of section 601(c) adopted by the
House, the Committee of Conference believes it im-
portant and appropriate to discuss that section in this
Joint Explanatory Statement because debate in both
Houses centered upon its meaning.
Background of 601(c)
H.R. 4 as reported from the House Permanent Se-
lect Committee on Intelligence and S. 391 as reported
from the Senate Committee on the Judiciary in 1981
Editor: W
both required that to be criminal the disclosure made
by those with no access to classified information
would have to be made "in the course of an effort to
identify and expose covert agents with the intent to
impair or impede the foreign intelligence activities of
the United States by the fact of such identification
and exposure."
H.R. 4 as passed in the House in 1981 and in the
Senate in 1982, replaces this intent standard with a
more objective standard which requires that the dis-
closure must be "in the course of a pattern of activi-
ties intended to identify and expose covert agents and
with reason to believe that such activities would im-
pair or impede the foreign intelligence activities of the
United States."
In adopting this amendment neither House intended
to change the scope of the conduct which the Act
Continued on page 2
Litigating National Security Issues:
Workshop at ABA Annual Meeting
The Standing Committee on Law and National Se-
curity will present a workshop at the ABA Annual
Meeting in San Francisco. Entitled Litigating National
Security Issues, it will be held on Monday, August 9,
from 2 to 5 p.m. at the Holiday Inn-Union Square.
The program will address the difficult legal and prac-
tical issues that a national security issue presents in
both civil and criminal litigation-typically when a
party attempts to obtain classified information in dis-
covery or to introduce such information into evidence.
Issues of this kind have arisen in several celebrated
criminal cases in recent years and have given rise to
federal legislation, the Classified Information Proce-
dures Act of 1980 (the "Greymail" Act). The work-
shop will evaluate the usefulness of the Act and will
consider whether similar legislation would be useful to
Continued on hack page
601 C. Nkft As ia~ r- t Security,
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Agents' Identities Bill
Continued from page /
seeks to proscribe. Rather, the change was made to
deal with elements of proof at trial. The language as
adopted makes it clear that the defendant must be
engaged in a conscious plan to seek out undercover in-
telligence operatives and expose them with reason to
believe such conduct would impair U. S. intelligence
efforts.
The language of section 601(c) was considered by
the House as a result of an amendment offered on the
floor by Representative Ashbrook. The amendment
was adopted by a vote of 226 to 181. The same lan-
guage was considered by the Senate as a result of an
amendment offered on the floor by Senators Chafee
and Jackson. This amendment was adopted by a vote
of 55 to 39. The bill containing the amended section
601(c) language was adopted by the House by a vote
of 354 to 56 and by the Senate by a vote of 90 to 6.
Thus, the following language appears in section 601(c):
Whoever, in the course of a pattern of activi-
ties intended to identify and expose covert
agents and with reason to believe that such ac-
tivities would impair or impede the foreign intel-
ligence activities of the United States, dis-
closes any information that identifies an
individual as a covert agent to any individual
not authorized to receive classified informa-
tion, knowing that the information disclosed so
identifies such individual and that the United
States is taking affirmative measures to conceal
such individual's classified intelligence relation-
ship to the United States, shall be fined not
more than $15,000 or imprisoned not more than
three years, or both.
The record indicates that the harm this bill seeks to
prevent is most likely to result from disclosure of
covert agents' identities in such a course designed,
first, to make an effort at identifying covert agents and,
second, to expose such agents publicly. The gratui-
tous listing of agents' names in certain publications
goes far beyond information that might contribute to
informed public debate on foreign policy or foreign
intelligence activities. That effort to identify U. S. in-
telligence officers and agents in countries throughout
the world and to expose their identities repeatedly,
time and time again, serves no legitimate purpose. It
does not alert to abuses; it does not further civil liber-
ties; it does not enlighten public debate; and it does
not contribute one iota to the goal of an educated and
informed electorate. Instead, it reflects a total disre-
gard for the consequences that may jeopardize the
lives and safety of individuals and damage the ability
of the United States to safeguard the national defense
and conduct an effective foreign policy....
The standard adopted in section 601(c) applies
criminal penalties only in very limited circumstances
to deter those who make it their business to ferret out
and publish the identities of agents. At the same time,
it does not affect the First Amendment rights of those
who disclose the identities of agents as an integral
part of another enterprise such as news media report-
ing of intelligence failures or abuses, academic studies
of U. S. government policies and programs, or a pri-
vate organization's enforcement of its internal rules.
Section 601(c) applies to any person who discloses
the identity of a covert agent. As is required by sec-
tions 601(a) and (b), the government must prove that
the disclosure was intentional and that the relation-
ship disclosed was classified. The government must
also prove that the offender knew that the government
was taking affirmative measures to conceal the classi-
fied intelligence relationship of the covert agent. As is
also the case with sections 601(a) and (b), the actual
information disclosed does not have to be classified.
However, the government must prove that the de-
fendant knew that he was disclosing a classified rela-
tionship the government seeks to conceal by affirma-
tive measures.
Unlike the previous two sections, authorized access
to classified information is not a prerequisite to a con-
viction under section 601(c). An offender under this
section has not voluntarily agreed to protect any gov-
ernment information nor is he necessarily in a position
of trust. Therefore, section 601(c) establishes three
elements of proof not found in sections 601(a) or (b).
The United States must prove:
1. That the disclosure was made in the course
of a pattern of activities, i.e., a series of acts
having a common purpose or objective;
2. That the pattern of activities was intended to
identify and expose covert agents; and
3. That there was reason to believe that such
activities would impair or impede the foreign
intelligence activities of the United States.
Pattern of Activities
"Pattern of activities" is defined as a "series of acts
with a common purpose or objective." It is important
to note that the pattern of activities must be intended
to identify and expose covert agents. The process of
identifying such agents must involve a substantial
effort to ferret out names which the government is
seeking to keep secret. This pattern of activities must
involve much more than merely restating that which is
in the public domain. The process of uncovering
names could include, for example, techniques such as:
(1) seeking unauthorized access to classified informa-
tion, (2) a comprehensive counterintelligence effort of
engaging in physical surveillance, electronic surveil-
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Protecting Against Terrorism:
Conference Examines Problem
The complex problem of protecting diplomats and
diplomatic premises against terrorist attack was ex-
amined in depth at a conference which took place in
Bellagio, Italy, this past March 8-12. The article that
follows was excerpted from the much longer report
prepared by Professor John F. Murphy of the Depart-
ment of International Lattw, University of Kansas,
vrho tras a participant in the conference. Professor
Murphy series as a consultant with the American Bar
Association's Standing Committee on Latin and Na-
tional Security.
From March 8 to March 12 the University of South
Carolina's James F. Byrnes Center on International
Relations was host for an international conference on
the protection of diplomatic premises and personnel,
held at the Rockefeller Foundation Study and Con-
ference Center located in Bellagio on Lake Como,
Italy. As envisaged by the sponsors, the primary pur-
pose of the conference was to get together govern-
mental representatives of the five permanent mem-
bers of the United Nations Security Council (United
Kingdom, France, United States, U.S.S.R., and Peo-
ple's Republic of China) in order to discuss their
common problem in protecting their diplomats and
diplomatic facilities against terrorist attack and other
manifestations of political violence. The premise was
that, despite the deep ideological differences between
some of the permanent members, they all held a strong
common interest in ensuring the continuation of diplo-
matic intercourse.
At first it appeared that both the People's Republic
of China and the U.S.S.R. would be represented at
the conference. Indeed, both had indicated their ac-
ceptance of the University of South Carolina's invita-
tion to attend. However, shortly before the confer-
ence was to begin, both the U.S.S.R. and the People's
Republic of China informed the sponsors that they
would be unable to attend. Although it is not clear
why the acceptances of the invitations were with-
drawn, it appears that the reasons are grounded in the
current tense relations between the U.S.S.R. and the
People's Republic of China and between the United
States and the U.S.S.R.
Nonetheless, the conference did have substantial
governmental representation from the United States,
the United Kingdom, the Federal Republic of Ger-
many and Italy, as well as nongovernmental repre-
sentatives from Israel and Yugoslavia.
The Scope of the Problem
With respect to trends in terrorist attacks against
diplomats and diplomatic premises, it was noted that
the last two years have seen a dramatic surge, a sixty
percent increase over the previous two-year period,
with a wider range of targets and geographical scope.
Often these attacks have been connected with war-
fare, for example, the conflict between Iran and Iraq
and the civil wars in Central America. In these areas
there seems to be no such thing as a "local war."
Bombings have been the most prevalent form of at-
tack, while assassinations have tripled. Kidnappings,
by contrast, have not increased. There has also been a
substantial increase in the take-over of embassies;
more than 50 have been seized since 1970. However,
the seizing of embassies appears to be losing popular-
ity, since seldom have demands been met, and 1981
saw a decline in this manifestation of terrorist attack.
American diplomats have been the most popular
target for terrorists. Reasons for this include (1) the
ubiquity of American diplomats; (2) the predominant
U. S. role in international affairs; (3) the negative
image of the United States promoted by adversary
propagandists. Terrorists tend to exaggerate the lever-
age they will have if they are able to seize an Ameri-
can diplomat. Turkish diplomats have been the second
most popular target, with Yugoslav diplomats third.
The high cost of protecting embassies was noted.
For example, ten percent of the Guatemalan Army is
engaged in guard duty attempting to protect diplo-
matic premises in Guatamala City. The expense there
amounts to approximately one to two million dollars
per embassy. Even these extraordinary precautions
may not be sufficient to protect more than the diplo-
matic premises themselves or the person of the am-
bassador. Terrorists, in such event, may simply target
lower ranking diplomatic personnel.
There are, roughly speaking, five basic categories of
terrorist activity that may be directed towards diplo-
mats and that raise distinctive problems of prevention
and punishment. The first and largest category is guer-
rilla warfare by indigenous groups. Since the local
government is the real target, it is pleased to cooperate
in combatting such terrorist activity.
The second and the second largest category of gen-
eral terrorist activity is attacks by ethnic groups, e.g.,
Armenians or Croatians. In this case also, the local
government is anxious to prosecute, but apprehension
may be an exceedingly difficult problem.
The third is worldwide attacks by groups connected
with local groups, for example, the PLO and the IRA.
Here one finds arising major political problems re-
garding extradition and prosecution.
The fourth is isolated terrorist attacks to protest the
actions of local governments. An example would be
the bombing of the French Embassy in Peru to protest
nuclear tests in the Pacific.
The fifth, and the most recent, type of activity is
the use of terrorism by governments. Examples would
include the Iranian government's use of assassins to
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Protecting Against Terrorism
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attack Iraqi diplomats and Libya's well documented
hit teams against United States diplomats in Italy. In
these instances the local government wants to coop-
erate, but often can't do so very effectively. It has also
been extremely difficult to substantiate terrorist activ-
ity directed by governments.
As to possible trends in general terrorist activity,
several commentators were of the opinion that the
antinuclear movement, Islamic fundamentalism, frus-
trated reactions by blacks, and increased activity by
the PLO might well lead to a sharp increase in ter-
rorist activity over the next decade. There are also
disturbing signs that the use of terrorism as surrogate
warfare may increase over the next few years.
U. S. Policy Towards Terrorism,
Embassy Protection
In reporting on U. S. policy, Ambassador Robert
Sayre suggested that the primary goal was to ensure
effective implementation of the Vienna Convention on
Diplomatic Relations and the Vienna Convention on
Consular Relations. With respect to the threat, Am-
bassador Sayre reported that Latin America has tra-
ditionally been the most troublesome area but Western
Europe has now taken first place in this regard. Most
terrorists are Marxist-Leninist in political orientation;
even the Armenians have close connections with
Marxist groups in Lebanon. In his opinion, these ter-
rorist groups are not controlled by or directed from
the U.S.S.R., but they do get training and logistical
support from the Soviet Union, and the United States
and its allies are the primary targets. What these ter-
rorists are doing is helpful to the Soviet Union, the
Soviet Union is benefitted by their activities, and the
Soviet Union has not been helpful in cooperating to
combat the terrorist threat.
Ambassador Sayre identified the following as the
primary problems the U. S. faces in combatting ter-
rorism against diplomats and diplomatic premises:
(1) Lack of resources. Ten to 14 percent of the State
Department's budget, or approximately 100 to 140
million dollars annually, is allocated to security. The
costs of adequate security throughout Western Europe
and other areas of high risk are prohibitive. (2) The
nature of diplomatic premises. Most embassy build-
ings were not acquired with security in mind. Over
the next decade, it will cost at least 200 million dollars
to remedy this situation, and more costs will be in-
volved in efforts to provide security to the residences
of U. S. diplomats. (3) Attitudes of personnel. Many
U. S. diplomats have simply not understood the nature
and magnitude of the terrorist threat against them. For
example, General Dozier had been informed he was
on a terrorist hit list, yet neither he nor his staff knew
what to do about this and, as a consequence, did
nothing. The size of the U. S. diplomatic presence has
been reduced continuously in various areas, but the
United States cannot trim its diplomatic personnel too
much without the effect of surrendering to terrorist
threats.
At home, the United States has done reasonably
well to carry out its obligations under the Vienna Con-
vention on Diplomatic Relations. The Secret Service
has been effective in protecting foreign diplomats in
New York and in Washington. However, the United
States has faced graver difficulties with respect to
consular officials. The United States has just sub-
mitted to Congress legislation designed to implement
the Vienna Convention on Consular Relations. Be-
fore this, responsibility for implementation had, in
effect, been left to the individual states of the union.
Ambassador Sayre noted that, on a bilateral basis,
cooperation between the United States and its allies
has been good. He cited the Dozier case as a recent
example. However, he reported that efforts toward
more multilateral cooperation have been unsuccess-
ful. The United States has not been involved in such
efforts among Western European states, and NATO
has recently ruled out cooperation with respect to
combatting international terrorism on the ground that
it is a police rather than a military matter. Ambassador
Sayre seconded Senator Franco Calamanderi's
(Rome, Italy) suggestion regarding the Council of
Europe as a possible forum, but noted that even there
difficulties arise.
Current International Law
In introducing his remarks, John Lawrence Har-
grove (Washington, D. C.) referred participants to the
substantial discussion paper he had prepared for pur-
poses of this meeting and highlighted a few salient
points. He noted that state complicity in international
terrorism is governed by general international law
norms. That is, a state's use of individual terrorists to
attack another state's diplomats, or to commit other
forms of terrorist acts, violates Article 2(4) of the
United Nations Charter and gives rise to a right on the
part of the target state to engage in measures of self-
defense proportionate and necessary to meet the threat
posed. These could, in certain circumstances, include
utilization of armed force. Also, he noted, depending
upon the level of military activity, the laws of armed
conflict may become applicable. If so, attacks on non-
combatants or the taking of hostages could be char-
acterized as war crimes. He suggested that the inter-
national law specifically pertinent to the protection
of diplomats was probably more or less adequate to
the task, provided that states are willing to implement
it. This law included, in addition to possible rules of
customary international law, the Vienna Convention
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Senate Committee Reviews
FOIA Amendments Bill
At a mark-up session on May 20, the Senate Judi-
ciary Committee agreed, 15 to 0, to support a new and
milder version of S. 1730, a bill containing numerous
amendments to the Freedom of Information Act
(FOIA). The new version dilutes the changes in sev-
eral subjects, including national security, compared to
the stronger subcommittee bill of last December. That
bill, a blending of Senator Hatch's own FOIA pro-
posals and the administration's, had provided that fed-
eral courts would protect classified defense and for-
eign relations documents from disclosure under FOIA
unless the court found the classification to be "arbi-
trary and capricious."
The new May 20th version has no provision to limit
the present broad scope of judicial review where a
FOIA suit challenges the national security classifica-
tion of a record. In addition, the new version contains
no additional exemption to protect foreign intelligence
or most other types of national security information.
However, as discussed below, there is a new exemp-
tion for certain government-owned technical data, and
there are several other provisions offering relatively
minor improvements in the present protection of na-
tional security information.
The new version is the result of months of negotia-
tions since the beginning of this year, largely between
Senators Hatch and Leahy. During this period, the
news media gave much critical attention to the pend-
ing proposal to amend FOIA, and a number of Con-
gressmen and Senators were critical of recent revi-
sions in the executive order on classified national
security information.
The Judiciary Committee's action apparently re-
stores momentum to the lagging progress of the FOIA
amendments. The committee's changes were promptly
praised by The Washington Post and by an ACLU
spokesman as relieving their fears that the earlier
proposals would seriously cripple FOIA. But it is not
clear how fast the legislation will now move to the
Senate floor and to the House. Nor is it clear whether
further changes are likely, or what direction such
changes might take.
During the mark-up session, however, one question
was clearly noted for further consideration. Senator
Leahy indicated that an effort will be made soon to add
the Durenberger bill (S.2452) to the bill just approved
by the Judiciary Committee, an action which would
further weaken the committee bill in the area of na-
tional security.
The Durenberger bill, of which Senators Leahy,
Biden, Huddleston, and Moynihan are cosponsors, is
a reaction against President Reagan's April 2 execu-
tive order (12356) revising and tightening the rules for
national security classification of defense and foreign
policy documents. The rules in such an executive or-
der are, in effect, part of FOIA, because FOIA Ex-
emption One applies to matters classified under such
an order.
Senator Durenberger's bill would strike at two dele-
tions made by President Reagan's order of wording
in President Carter's order. President Carter had in-
serted this wording into the previous (Nixon) order. In
the first of these deletions, President Reagan removed
the word "identifiable" which President Carter had
inserted as an added requirement for the "damage to
the national security" which is the basis for classifying
and withholding information. Second, President Rea-
gan removed the public interest "balancing" provision
in the Carter order under which officials, in deciding
whether to classify information, were to balance any
public interest favoring disclosure against damage of
disclosure to the national security. Both deletions
were made chiefly because the provisions in question
were felt to increase the risks during litigation of com-
promising the information in dispute.
The Durenberger bill would put the word "identi-
fiable" into FOIA Exemption One as a requirement
for protecting classified information -the government
would have to prove that its disclosure "could rea-
sonably be expected to cause identifiable damage to
national security" (emphasis added)-thereby writing
the Carter order provision on this point into the stat-
ute. The Durenberger bill would also write the "bal-
ancing" test into Exemption One; classified informa-
tion would not be exempt unless "the need to protect
the information outweighs the public interest in dis-
closure." However, on this last issue, the Durenberger
bill also provides that court review of such balancing
"shall be limited to ascertaining whether the agency
withholding such records made the determination"
that the need to protect outweighs the public interest
in disclosure, in order to prevent courts from doing
their own balancing on that issue.
Several provisions of the Judiciary Committee's
FOIA bill offer improvements for national security
information. The added protection ranges from prob-
ably very slight to probably substantial. Thus, under
Section 8 of the bill, instructions to negotiators would
be clearly exempt; this would include negotiators op-
erating in national-security-sensitive areas. Under
Section II of the bill, the exemption for law enforce-
ment investigatory records is strengthened in several
ways, including greater protection for ongoing investi-
gations and for confidential sources. These added
protections for law enforcement should benefit na-
tional security, for example, in counterintelligence
and in background national security investigations.
Under Sections 12 and 17 of the bill, there is a new
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FOIA Amendments Bill
Continued from page 5
exemption for government-owned "technical data"
that cannot be lawfully exported without a license.
Under Section 13, the bill would amend FOIA's
"reasonably segregable" clause, which requires dis-
closure of most non-exempt parts of a document con-
taining exempt information, to enable an agency to
consider the "mosaic" effect in processing requests
for classified records, i.e., situations where the re-
quester may know so much about the subject of the
record that releasing apparently innocuous portions
of it may actually give him, when these portions are
fitted together with information already available,
what amounts to a damaging disclosure of protectable
information. The bill also will create some obstacles to
the making of FOIA requests by most aliens and in-
carcerated felons. In addition, the bill amends the
present provisions on fees and time limits in various
ways which, taken together, should tend to facilitate
more careful work by agencies in reviewing requested
records for possible release, which in turn may reduce
the risks of inadvertent disclosures of national security
information.
In summary, the Senate Judiciary Committee's
May 20 mark-up of S. 1730, viewed from the stand-
point of better protection for sensitive national secur-
ity information, (a) is disappointing in failing to make
any change at all in the present FOIA judicial review
provisions for classified information (which directs
federal judges to make their own independent judg-
ments on whether or not to protect classified defense
and foreign affairs information, judgments which may
differ from the judgment of those officially responsible
for conducting defense and foreign affairs); (b) is bene-
ficial in varying degrees in the several particulars out-
lined above; and (c) is subject to possible further
weakening if the provisions of the Durenberger bill
discussed above were to be attached to the commit-
tee's bill.
the territorial states. Dean Rusk stated the issue suc-
cinctly as follows:
Older distinctions between internal and interna-
tional wars seem to be melting away because of
the direct or indirect involvement of other na-
tions in internal conflicts. Just as human rights
are now no longer a purely internal affair, it may
be that internal wars must become a matter of
concern to the community of nations because
they so frequently affect the possibilities of or-
ganizing a durable peace.
To explore the possibilities, the workshop covered
(i) the obligations of other states in cases of internal
conflict; (ii) the applicability of humanitarian law in in-
ternal conflicts; and (iii) the role of international and
regional organizations in internal conflicts. With re-
spect to each, the focus was on current international
legal principles and the desirability of effecting changes
to reduce the adverse impacts of destabilizing internal
conflicts.
The workshop "faculty" consisted of distinguished
specialists, both foreign and domestic, and present and
former government officials. Their presentations were
well received by the workshop participants who were
stimulated by the exercise in international norm build-
ing. The highlight of the workshop was the period de-
voted to the "reflections" of Dean Rusk who shared
his perceptions of the current state of world order with
special emphasis on the problem of internal conflicts.
Among the congratulatory messages sent to Dean
Rusk were those of George Ball:
Some Americans in public life, diligent in ad-
vancing their own interests, receive far more
adulation than is due; others, out of a modesty
derived from a larger perspective and a deeper
understanding of world forces, are less con-
cerned with the capricious assessments of the
moment. They decline to manipulate the judg-
ment of history because they do not fear it.
Dean Rusk is one of that small elite.
Workshop Honors Dean Rusk
The Standing Committee on Law and National Se-
urity and the University of Georgia Law School co-
sponsored a Law Professor Workshop, "Coping with
Internal Conflicts: Dilemmas in International Law," at
Athens, Georgia, on May 7-8, to honor former Secre-
tary of State Dean Rusk for his public service and his
contribution to the study and understanding of inter-
national law and international relations. The workshop
considered the need for international involvement in
internal conflicts which, under the concepts of sover-
eignty, self-determination and nonintervention, tradi-
tionally have been considered the exclusive concern of
and Henry Kissinger:
It is not only because we will both go down in
history as Secretaries of State who spoke with
funny accents. It is also because I have known
you - before, during and after my own tenure in
government - as a pillar of strength and decency
and integrity. Intellectual fashions come and go,
but the basic values of character and patriotism
endure. In your work as a teacher of interna-
tional law and a wise Counsellor to the ABA
Standing Committee on Law and National Se-
curity, you have shown that public service is not
limited to government service.
Bernard Ramundo
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Supreme Court Reverses
D. C. Circuit Court of Appeals
The Supreme Court on May 17 unanimously re-
versed a decision of the Circuit Court of Appeals of
the District of Columbia involving whether, under
FOIA, The Washington Post was entitled to know
whether two persons in Iran were United States citi-
zens (see May Intelligence Report). The State Depart-
ment had refused to release this information on the
basis that the physical safety, if not the lives, of the
persons involved would be jeopardized.
The Supreme Court in its opinion stated that a
FOIA exemption from release of information found in
personnel and medical files was broad enough to au-
thorize a determination in this case by the State De-
partment that release of the information could be a
clearly unwarranted invasion of privacy.
The Reporters Committee for Freedom of the Press
immediately issued a statement calling the decision "a
major defeat" for the principles of the Freedom of In-
formation Act.
Larry Williams
Agents' Identities Bill
Continued from page 2
lance abroad, and other techniques of espionage di-
rected at covert agents, or (3) systematically collect-
ing, collating and analyzing information from docu-
mentary sources for the purpose of identifying the
names of agents. The process of exposing covert
agents must involve the deliberate exposure of infor-
mation identifying them, the intentional "blowing" of
intelligence identities.
It should, of course, be clear that "pattern of activi-
ties" does not necessarily mean a pattern of disclo-
sures; a single, first disclosure of information identi-
fying a covert agent is punishable under section 601(c)
if the requisite pattern of activities and the other ele-
ments of the offense are proved beyond a reasonable
doubt.
Most laws do not require intentional acts, but mere-
ly knowing ones. The difference between knowing and
intentional acts was explained as follows in the Senate
Judiciary Committee report on the Criminal Code
Reform Act of 1980:
As the National Commission's consultant on
this subject put it, "it seems reasonable that the
law should distinguish between a man who wills
that a particular act or result take place and an-
other who is merely willing that it should take
place. The distinction is drawn between the
main direction of a man's conduct and the (an-
ticipated) side effects of his conduct.
A newspaper reporter would rarely have engaged
in a pattern of activities with the requisite intent "to
identify and expose covert agents." Instead, such a
result would ordinarily be "the (anticipated) side
effect of his conduct."
Of course, the fact that a defendant claims one or
more intents additional to the intent to identify and
expose does not absolve him from guilt. It is only
necessary that the prosecution prove the requisite in-
tent to identify and expose covert agents.
This crucial distinction between the main direction
of one's conduct and the side effects that one antici-
pates but allows to occur forms an important safe-
guard for civil liberties. Because the intent standard in
section 601(c) is an intent "to identify and expose
covert agents" rather than an intent to "impair or im-
pede the foreign intelligence activities of the United
States," it is clear that the fact that a journalist had
written articles critical of the CIA which did not
identify covert agents could not be used as evidence
that the intent standard was met.
In order to fit within the definition of "pattern of
activities," a discloser must be in the business, or
have made it his practice, to ferret out and then expose
undercover officers or agents where the reasonably
foreseeable result would be to damage an intelligence
agency's effectiveness. Those who republish previous
disclosures and critics of U. S. intelligence would all
stand beyond the reach of the law if they did not en-
gage in a pattern of activities intended to identify and
expose covert agents.
A journalist writing stories about the CIA would not
be engaged in the requisite "pattern of activities,"
even if the stories he wrote included the names of one
or more covert agents, unless the government proved
that there was an intent to identify and expose agents.
To meet the standard of the bill, a discloser must be
engaged in a purposeful enterprise of revealing identi-
ties-he must, in short, be in the business of "naming
names."
The following are illustrations of activities which
would not be covered:
An effort by a newspaper intended to un-
cover CIA connections with it, including learn-
ing the names of its employees who worked for
the CIA.
An effort by a university or a church to learn
if any of its employees had worked for the CIA.
(These are activities intended to enforce the
internal rules of the organization and not iden-
tify and expose CIA agents.)
An investigation by a newspaper of possible
CIA connections with the Watergate burglaries.
(This would be an activity undertaken to learn
about the connections with the burglaries and
not to identify and expose CIA agents.)
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Agents' Identities Bill
Continuedfrom page 7
An investigation by a scholar or reporter of
the Phoenix program in Vietnam. (This would
be an activity intended to investigate a contro-
versial program and not to reveal names.).. .
The reporters who have investigated the activities
of Wilson and Terpil, former CIA employees who al-
legedly supplied explosives and terrorist training to
Libya, would not be covered even if they revealed the
identity of covert agents if their pattern of activities
was intended to investigate illegal or controversial
activities, and not to identify covert agents. Similarly,
David Garrow would not be within the scope of the
statute even though he purported to give the identity
of covert agents in his book, The FBI and Martin
Luther King, Jr.: from "Solo" to Memphis. His intent
presumably was to explain what drove the FBI to
wiretap Martin Luther King and not to identify and
expose covert agents.
Reason to Believe
The government must also show that the discloser
had reason to believe that the pattern of activities in
which he was engaged would impair or impede the
foreign intelligence activities of the United States.
The "reason to believe" standard is met when the sur-
rounding facts and circumstances would lead a rea-
sonable person to believe that the pattern of activities
would impair or impede the foreign intelligence activi-
ties of the United States.... Among the objective facts
to be weighed by the jury in determining what a rea-
sonable person would believe would certainly be the
ease with which the name of a covert agent was iden-
tified and the extent to which it was widely and pub-
licly known.
The conferees expect that the Department of Jus-
tice and the federal courts will limit the application of
section 601(c) to those engaged in the pernicious busi-
ness of naming names as that conduct is described in
the legislative history of this Act.
Section 603
The House bill contained section 603 which deals
with procedures for establishing cover for intelligence
officers and employees. This section required the
president to establish procedures to ensure the protec-
tion of the identities of covert agents. Such procedures
were to include provision for any federal department
or agency designated by the president to assist in
maintaining the secrecy of such identities.
The Senate struck section 603 by unanimous
consent.
The conference report contains a substitute section
603 requiring an annual report from the president on
measures to protect the identities of covert agents.
The conferees expect such report to include an as-
sessment of the adequacy of affirmative measures
taken by the United States to conceal the identities of
covert agents.
The conferees stress, however, as was made clear
during consideration of this measure in both bodies,
that nothing in this provision or any other provision
of H.R. 4 or in any other statute or executive order
affecting U. S. intelligence activities in any way dimin-
ishes the 20-year-old Congressionally sanctioned ex-
ecutive branch policy of maintaining the total separa-
tion of the Peace Corps from intelligence activities.
The importance to the effectiveness of the Peace
Corps of maintaining this policy and its essential com-
ponents was spelled out in detail in the reports of the
Senate Judiciary Committee and the House Permanent
Select Committee on Intelligence and in the debate on
this measure in both bodies, and the conferees wish
to reemphasize this point and call attention to the
strong views of both bodies as set forth in that legis-
lative history.
Section 606(4)
Senate amendment 13 struck from the definition of
"covert agent" certain former intelligence officers and
certain other U. S. citizens who formerly were intelli-
gence agents, informants, or sources of operational
assistance. The conferees agreed to the Senate
amendment.
In adopting the Senate amendment, the conferees
note that the definition of "covert agent" and thus the
scope of possible prosecution is closely tied to the
concept of classified information. This connection is
of utmost importance in insuring that, as it applies to
those who are not undercover intelligence agency em-
ployees, the definition of covert agent does not in-
clude those private citizens who might provide infor-
mation to the CIA or FBI, but whose public
identification, though causing personal embarrassment,
would not damage the national security.
It is to be noted that after House passage of H.R. 4
and Senate passage of S. 391, the president promul-
gated a new executive order on classification. The
Committee of Conference understands that the
changes contained therein, particularly the elimina-
tion of the concept of "identifiable" damage, the addi-
tion of the category of "confidential source," and the
addition of a presumption of classification for "intel-
ligence sources and methods," were not intended to
affect, and will not affect, a decision on whether an
individual is or is not a "covert agent." The Commit-
tee of Conference expects the executive branch to
exercise the utmost care in making classification deci-
sions in this area.
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Protecting Against Terrorism
Continued from page 4
on Diplomatic Relations, the Vienna Convention on
Consular Relations, the United Nations Convention
on the Protection of Internationally Protected Per-
sons, an OAS convention along similar lines, the
European Convention on the Suppression of Terror-
ism, and the UN Convention Against the Taking of
Hostages. This complex of conventions, Hargrove
suggested, made it more difficult for a state to claim the
political offense exception and tightened the obliga-
tion to prosecute, and the emerging political consensus
reflected by adoption of these conventions could
evolve into pertinent rules of customary international
law. He noted, however, that these conventions did
contain certain weaknesses. First, a state can avoid
the extradite or prosecute obligation if it is so inclined,
especially since prosecutorial discretion under the
conventions is fully reserved. In this respect, the re-
gional conventions are weaker than the UN conven-
tions. Second, there is still an inadequate number of
states parties to these conventions and hence a great
need for more ratifications. Third, none of these con-
ventions establishes a system of collective sanctions.
In addition, there is a need for greater efforts to be
taken at the national level to bring domestic law into
accord with the obligations contained in these conven-
tions.
Sir Ian Sinclair (London, England) noted paren-
thetically that the basic principle of diplomatic in-
violability is recognized in Islamic law as well as in
conventional and customary international law. He
suggested that the experience under the anti-aircraft
hijacking and sabotage conventions was an encourag-
ing precedent in that the number of ratifications to
these conventions has increased dramatically in the
last few years. In this connection, he noted that the
reasons for nonratification by states varies. In some
instances there is a deliberate decision of state policy
not to ratify. In many more instances, however, the
foreign offices of states simply do not have the exper-
tise to act rapidly on these and on a variety of other
international conventions on their docket.
With respect to the question of prosecution of ter-
rorists, Mr. Sinclair noted that, even if a state is willing
to prosecute, it may have difficulty getting evidence
sufficient for conviction under its law. Mutual judicial
assistance is at best at a rudimentary stage, and dif-
ferences of view regarding admissibility of evidence
and cross examination of witnesses between common
law and civil law jurisdictions greatly hamper interna-
tional cooperation in this area. Moreover, diplomats
are often unwilling to testify as to the facts of cases
involving terrorist attacks. Problems of classification,
secrecy and security also hinder the gathering of
sufficient evidence. In the United States, at least in
the European view, the media may obtain information
that foreign states would not wish disclosed.
On the subject of abuse of diplomatic immunities,
Sinclair noted that use of the diplomatic bag to trans-
port arms is increasing. There is an item currently on
the agenda of the International Law Commission to
consider this practice and whether steps might be
taken to qualify the immunity of the diplomatic bag, at
least to the extent of permitting it to be x-rayed.
John F. Murphy
Recent FOIA Appeals Cases
In a recent FOIA case (Weberman iv. National Se-
curity Agency, 668 F. 2d 676 (2d Cir. 1982) ), an au-
thor sought to use the National Security Agency to es-
tablish a link between Cuba and President Kennedy's
assassination.
Weberman alleged that Jack Ruby's brother, Earl
Ruby, had sent a telegram to Cuba prior to the assas-
sination of President Kennedy by Lee Harvey Oswald
and Oswald's being killed by Jack Ruby. He claimed
that NSA had intercepted this telegram, and was re-
fusing disclosure to him of the telegram. NSA con-
tended that whether the telegram was or was not in-
tercepted remains a matter of national security and
exempt under a specific FOIA provision. Acting un-
der prior instructions from this court (see 646 F. 2d
563 (2d Cir. 1980)), the federal district judge re-
viewed, in camera and ex parte, a top secret NSA
affidavit as to why the existence or non-existence of
such an intercept was classified and why the fact of
interception or non-interception was exempt under
FOIA. The lower court dismissed the complaint.
The Second Circuit Court of Appeals held that the
lower court could review the affidavit in camera and
ex paste, and that plaintiffs counsel had no right to be
present during such review. Accordingly, it affirmed
the lower court's decision. As no appeal was taken to
the Supreme Court, the matter is now concluded.
The May Intelligence Report carried an account of
the efforts under FOIA of Abramson, a journalist, to
obtain from the FBI copies of documents sent by it to
the White House in 1969 concerning various public
figures. The Circuit Court of Appeals for the District
of Columbia had decided to return the case to the low-
er court to decide whether the documents sought had
been created for law enforcement purposes. The FBI
appealed that decision to the Supreme Court.
The Supreme Court, on May 24 (slip opinion), ruled
that, although the documents sent to the White House
had not in fact been created for law enforcement pur-
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Recent FOIA Appeals Cases
Continued from page 9
poses, they were summarizations of such documents
and hence did not lose their exempt status (under Ex-
emption 7(c)) by such summarization. The four dis-
senting justices took the position that only documents
or records created for law enforcement purposes can
be exempt under Exemption 7(c), and that new docu-
ments containing summarizations of them, but which
were not created for law enforcement purposes, are
not exempt.
The Supreme Court, on May 17, denied certiorari in
a FOIA case involving the Founding Church ofScien-
tologv of Washington, D. C. The plaintiffs request
had been denied below (670 F. 2d 1158 (CADC
1981)). What the Church wanted were certain Inter-
pol documents once held by the United States Na-
tional Central Bureau (the U. S. agency member of
Interpol) but now in Paris at Interpol. The records
were alleged to be able to be retrieved by the Bureau.
The Circuit Court of Appeals for the District of
Columbia determined that the defendants were cor-
rect on all three bases of their refusal: (1) A confiden-
tial source need not be an individual but can be an in-
stitution (such as Interpol) and hence an exemption
based upon "revelation of a confidential source" was
applicable. (2) It found that Exemption 7(d) is applic-
able to law enforcement proceeding documents even
when no proceedings are under way or contemplated.
(3) Courts can not command agencies to acquire pos-
session or control of documents the agencies do not
have even though they could acquire (or reacquire)
them, as FOIA only prevents withholding of held
records.
In a petition to the Supreme Court on March 30
(on which no action has as yet been taken), Victor S.
Navasky, editor of Nation, requested the overturning
of the decision of the United States Court of Appeals
for the Second Circuit ( F. 2d (CA2 1981))
denying his FOIA request for a list of titles of books
subsidized for publication abroad by the CIA, some
without the author's knowledge of the subsidization.
That court had affirmed a lower court ( F. Supp.
(S.D.N.Y. 1981)) that such disclosures, even
many years later, could be expected to "cause identi-
fiable damage to the national security in the field of
foreign relations," and hence are exempt under FOIA.
Larry Williams
Litigating National Security Issues
Continued from page I
cover civil litigation. In addition, the workshop will
survey the range of practical and legal problems raised
by the Act, the State Secrets privilege and similar doc-
trines and by the conflicting dictates of secrecy and
normal judicial procedures.
The workshop will consist of two panels, made up of
knowledgeable experts from both government and the
private bar. They are:
The Criminal Case
Thomas Kennelly
Partner, Duiguid, Kennelly & Epstein
Washington, D. C.
(Defense attorney in Felt-Miller case)
Mark Richard
Deputy Assistant Attorney General
Criminal Division
U. S. Department of Justice
Earl Silbert
Partner, Schwalb, Donnenfeld, Bray & Silbert
Washington, D. C.
(Formerly U. S. Attorney for the District
of Columbia)
Stanley Sporkin
General Counsel
Central Intelligence Agency
The Civil Case
Jon Anderson
General Counsel
National Security Agency
Mark Lynch
ACLU Project on National Security
(Counsel in numerous cases involving classified
information)
Ernest Mayerfeld
Deputy General Counsel
Central Intelligence Agency
Daniel B. Silver
Partner, Cleary, Gottlieb, Steen & Hamilton
Washington, D. C.
(Formerly General Counsel, Central Intelligence
Agency and National Security Agency)
Richard Willard
Deputy Assistant Attorney General
Civil Division
U. S. Department of Justice
For further information contact: William C. Mott, Suite 709
1730 Rhode Island Avenue N.W., Washington, D. C. 20036
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