HEARING BEFORE THE SUBCOMMITEE ON MANPOWER AND PERSONNEL OF THE COMMITTEE ON ARMED SERVICES UNITED STATES SENATE NINETY-NINTH CONGRESS FIRST SESSION ON S. 1301

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00297R000300710002-4
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 61
• Document Creation Date: December 23, 2016
• Document Release Date: November 14, 2011
• Sequence Number: 2
• Publication Date: June 26, 1985
• Content Type: REGULATION

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' S. HRC. 99-299
THE NATIONAL SECURITY PROTECTION ACT
OF 1985
HEARING
SUBCOMMITTEE ON
MANPOWER AND PERSONNEL
COMMITTEE ON ARMED SERVICES
UNITED STATES SENATE
NINETY-NINTH CONGRESS
FIRST SESSION
S. 1301
TO STRENGTHEN THE COUNTERINTELLIGENCE CAPABILITIES OF THE
DEPARTMENT OF DEFENSE, TO AMEND THE UNIFORM CODE OF MILI-
TARY JUSTICE TO ESTABLISH PENALTIES FOR ESPIONAGE IN PEACE-
TIME, TO PROVIDE INCREASED PENALTIES FOR ESPIONAGE, AND FOR
OTHER PURPOSES
JUNE 26, 1985
Printed for the use of the Committee on Armed Services
r
U.B. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1985
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COMMITTEE ON ARMED SERVICES
BARRY GOLDWATER, Arizona, Chairman
STROM THURMOND, South Carolina SAM NUNN, Georgia
JOHN W. WARNER, Virginia JOHN C. STENNIS, Mississippi
GORDON J. HUMPHREY, New Hampshire GARY HART, Colorado
WILLIAM S. COHEN, Maine J. JAMES EXON, Nebraska
DAN QUAYLE, Indiana CARL LEVIN, Michigan
JOHN P. EAST, North Carolina EDWARD M. KENNEDY, Massachusetts
PETE WILSON, California JEFF BINGAMAN, New Mexico
JEREMIAH DENTON, Alabama ALAN J. DIXON, Illinois
PHIL GRAMM, Texas JOHN GLENN, Ohio
JAiEs F. McGovERN, Staff Director and Chief Counsel
ARNoi n L. PuNARO, Staff Director for the Minority
ALAN R. YuspEH, General Counsel
CHRISTINE C. DAOTH, Chief Clerk
SUBCOMMITFEE ON MANPOWER AND PERSONNEL
PETE WILSON, California, Chairman
STROM THURMOND, South Carolina JOHN GLENN, Ohio
WILLIAM S. COHEN, Maine SAM NUNN, Georgia
JOHN P. EAST, North Carolina J. JAMES EXON, Nebraska
JEREMIAH DENTON, Alabama EDWARD M. KENNEDY, Massachusetts
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CONTENTS
CHRONOLOGICAL LIST OF WITNESSES
Snider, L. Britt, Principal Director, Counterintelligence and Security Policy, Page
Office of the Secretary of Defense, accompanied by Jack Donnelly, Director,
Counterintelligence and Investigative Programs, and Maynard Anderson,
Director, Security Plans and Programs ......................... 12
Cox, Hon. Chapman B., general counsel, Department of Defense .......................... 41
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99TH CONGRESS
18T SESSION
S. 1301
To strengthen the counterintelligence capabilities of the Department of Defense,
to amend the Uniform Code of Military Justice to establish penalties for
espionage in peacetime, to provide increased penalties for espionage, and for
other purposes.
IN THE SENATE OF THE UNITED STATES
JUNE 13 (legislative day, JUNE 3), 1985
Mr. GEAMM (for himself, Mr. GOLDWATER, Mr. THURMOND, Mr. DOLE, and Mr.
HELMS) introduced the following bill; which was read twice and referred to
the Committee on Armed Forces
~t BILL
To strengthen the counterintelligence capabilities of the Depart-
ment of Defense, to amend the Uniform Code of Military
Justice to establish penalties for espionage in peacetime, to
provide increased penalties for espionage,, and for other
purposes.
1 Be it enacted by the Senate and House of Representa-
2 Lives of the United States of America in Congress assembled,
3 SHORT TITLE
4 SECTION 1. This Act may be cited as the "National
5 Security Protection Act of 1985".
6 CONGRESSIONAL FINDINGS AND POLICIES
7. SEC. 2. The Congress finds-
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1 (1) that there have been recent cases of disclo-
2 sures of classified information to the Soviet Union with
3 serious consequences to the national security of the
4 United States;
5 (2) that such treacherous actions reflect the most
6 reprehensible conduct on the part of citizens of the
7 United States and should be subjected to the most
8 severe penalties;
9 (3) that an excessively large number of individuals
10 who are members of the Armed Forces of the United
11 States or civilian employees of the Department of De-
12 fense presently hold clearances granting them access to
13 classified information, and that such excessive access to
14 classified information increases the likelihood of unau-
15 thorized disclosure of such information to foreign gov-
16 ernments; and
17 (4) that currently available means of technology
18 have not been used to the fullest possible extent to un-
19 cover ongoing cases of espionage.
20 COUNTERINTELLIGENCE CAPABILITIES OF THE
21 DEPARTMENT OF DEFENSE
22 SEC. 3. The Secretary of Defense shall submit a report
23 to the Congress within 180 days after the date of the enact-
24 ment of this Act on the existing capabilities of the military
25 departments and the Office of the Secretary of Defense to
26 conduct counterintelligence operations. The Secretary shall
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1 include in such report a description of any changes to existing
2 capabilities which the Secretary proposes to implement in
3 order to enhance counterintelligence operational capability in
4 the Department of Defense. The Secretary shall also state in
5 such report whether the Secretary regards the resources
6 available to him for the purpose of conducting counterintelli-
7 gence operations as adequate. In the event the Secretary de-
8 termines that additional resources are necessary, he shall
9 identify the type and amount of such additional resources re--
10 quired to meet counterintelligence requirements.
11 SECURITY CLEARANCES
12 SEC. 4. The Secretary of Defense shall submit a report
13 to the Congress not later than 180 days after the date of the
14 enactment of this Act on plans of the-Secretary for a reduc-
15 tion in the number of members of the Armed Forces of the
16 United States and civilian employees of the Department of
17 Defense who hold clearances granting them access to classi-
18 fled information. The Secretary shall include in such report a
19 schedule for the appropriate implementation of such a plan.
20 AMENDMENTS TO THE UNIFORM CODE OF MILITARY
21 JUSTICE
22 SEC. 5. (a) Chapter 47 of title 10, United States Code,
23 is amended by inserting after section 906 the following no-,
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1 "? 906a. Art. 106a. Espionage in time of peace
2 `Any person subject to this chapter who at any time,
3 with intent or reason to believe that it is to be used to the
4 injury of the United States or to the advantage of a foreign
5 nation, communicates, delivers, or transmits, or attempts to
6 communicate, deliver, or transmit, to any foreign govern-
7 ment, or to any faction or party or military or naval force
8 within a foreign country, whether recognized or unrecognized
9 by the United, States, or to any representative, officer, agent,
10 employee, subject, or citizen thereof, either directly or indi-
11 rectly, any document, writing, code book, signal 12 sketch
book,
h
, p
oto g1aPh
, Photographic negative, blueprint, plan,
13 map, model, note, instrument, appliance, or information relat-
14 ing to the national defense, shall be tried by a general court-
15 martial and on conviction shall be punished by death or by
16 imprisonment for any term of years or for life, except that if
17 the foreign government is the Government of the Soviet
18 Union or any other Communist country (as previously deter-
19 mined and publicly proclaimed by the President), such person
20 shall upon conviction be punished by death or mandatory life
21 imprisonment. ".
22 (b) The table of sections at the beginning of subchapter
23 X of such chapter is amended by inserting after the item
24 relating to section 906 the following new item:
"906a. An. 106a. Espionage in time of peace.".
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1 POLYGRAPH EXAMINATIONS FOR COUNTERINTELLIGENCE
2 SEC. 6. (a) The Secretary of Defense shall require poly-
3 graph examinations to assist in determining the initial eligi-
4 bility of persons to have access to sensitive compartmented
5 information and shall aperiodically thereafter use such exami-
6 nations to assist in determining the continued eligibility of
7 such persons to have access to sensitive compartmented
8 information.
9 (b) The Secretary of Defense may require polygraph ex-
10 aminations to assist in determining the initial eligibility of
ersons to have access to classified information other than
12 sensitive compartmented information and may use such ex-
13 aminations aperiodically thereafter to assist in determining
14 the continued eligibility of such persons to have access to
15 such classified information.
16 (c) The results of polygraph examinations shall not be
17 used as the sole basis for denying eligibility for clearance or
18 access to any classified information.
19 (d) Individuals who refuse to submit to polygraph ex-
20 aminations conducted pursuant to the authority of this section
21 may be denied clearance or access to classified information,
22 or, if clearance or access has already been granted, may have
23 their clearance or access withdrawn.
24 (e) The polygraph examinations authorized or required
25 by this section shall be restricted to relevant issue questions
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1 which are intended to elicit an indication of whether a person
2 has or plans to make unauthorized disclosure of classified in-
3 formation, or to take any other action which would violate
4 the espionage laws of the United States.
5 (f) The Secretary of Defense shall report to the Con-
6 gress not later than 180 days after the date of the enactment
7 of this Act on plans developed by the Secretary to implement
8 this section.
9 AMENDMENTS TO FEDERAL ESPIONAGE LAW
10 SEC. 7. Section 794 of title 18, United States Code, is
11 amended by adding at the end thereof the following new sub-
12 section:
13 "(d) The death penalty for subsection (a) of this section
14 may only be adjudged if the jury, or if there is. no jury, the
15 court, finds beyond a reasonable doubt, that the foreign gov-
16 ernment involved is the Soviet Union or any other Commu-
17 nist country (as previously determined and publicly pro-
18 claimed by the President) and that the document, writing,
19 code book, signal book, sketch, photograph, photographic
20 negative, blueprint, plan, map, model, note, instrument, ap-
21 pliance, or information involved is classified.
22 "(e) The death penalty for subsection (b) of this section
23 may only be adjudged if the jury, or if there is no jury, the
24 court, finds beyond a reasonable doubt, that the foreign gov-
25 ernment involved is the Soviet Union, any other Communist
26 country (as previously determined and publicly proclaimed by
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1 the President), or an enemy of the United States and that the
2 document, writing, code book, signal book, sketch, photo-
3 graph, photographic negative, blueprint, plan, map, model,
4 note, instrument, appliance, or information involved is
5 classified.".
6 MANDATORY LIFE TERM OF IMPRISONMENT FOR SOVIET
7 ESPIONAGE
8 SEC. 8. (a) Section 794(a) of title 18, United States
9 Code, is amended by striking out the period at the end and
10 inserting in lieu thereof the following: "; except that if the
11 foreign government is the Government of the Soviet Union or
12 of any other Communist country (as previously determined
13 publicly and proclaimed by the President), any person con-
14 victed under this subsection shall be punished by death or be
15 imprisoned for the rest of such person's life. Notwithstanding
16 any other provision of law, the court, in imposing a life sen-
17 tence under the exception in the preceding sentence, may not
18 sentence the defendant to probation, nor suspend such sen-
19 tence, and the defendant shall not be eligible for release on
20 parole.".
21 (b) Section 794(b) of such title is amended by striking
22 out "for any-term of years or for life." and inserting in lieu
23 thereof "for the rest of his life. Notwithstanding any other
24 provision of law, the court, in imposing a life sentence under.
25 this subsection, may not sentence the defendant to probation,
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1 nor suspend such sentence, and the defendant shall not be
2 eligible for release on parole. P.
3 EFFECTIVE DATE
4 SEC. 9. The amendments made by this Act shall be ap-
5 plicable to offenses committed on or after the date of the
6 enactment of this Act.
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OPENING STATEMENT BY SENATOR PETE WILSON, CHAIRMAN
Senator WiisoN. Good afternoon.
The Subcommittee on Manpower and Personnel will come to
order.
The subcommittee meets today to conduct the first of a planned
series of three hearings on S. 1301, the National Security Protec-
tion Act of 1985, introduced on June 13, 1985, by Senators Gramm,
Goldwater, Thurmond, Dole, and Helms.
. This legislation has been referred to the Armed Services Commit-
tee and subsequently to the Manpower and Personnel Subcommit-
tee because of the committee's jurisdiction over proposed legisla-
tion and other matters relating to the common defense, to the De-
partment of Defense and the military departments and to the pro-
grams regulating the conduct of members of the Armed Forces,
specifically including the Uniform Code of Military Justice.
S. 1301 will address four related issues.
First, the bill would require reports from the Secretary of De-
fense on the capabilities of and resources available to the military
departments and to the Department of Defense to conduct counter-
intelligence operations.
It would place on the Secretary of Defense the requirement to
report on the Secretary's plans to reduce the number of military
personnel and civilian employees of the Department of Defense
who have clearance for access to classified information.
Second, the bill would require-I underscore require-the use of
initial and periodic polygraph examinations of those persons seek-
ing, or having clearance or access, to sensitive compartment infor-
mation and would permit, not require, but permit, such polygraph
examinations of persons seeking or having the clearance for access
to all other levels of classified information.
Third, the bill would establish for the first time a capital offense
under the Uniform Code of Military Justice that would proscribe
espionage activities during the period other than wartime by per-
sons subject to the Code of Military Justice.
If the offense involved the Soviet Union or any other Communist
country proclaimed by the President, the only permissible sen-
tences upon conviction would be life imprisonment or death.
Finally, the bill would amend section 794 of title 18 of the United
States Code, one of several Federal criminal espionage statutes, to
provide in the cases of espionage, involving the Soviet Union or
any other Communist country in peacetime, that the only permissi-
ble sentences upon conviction would be death or life imprisonment
without suspension, probation or parole.
I am aware of some questions being raised by the jurisdiction of
the Armed Services Committee over the subject matter of S. 1301,
at least with regard to that portion of the bill which would amend
title 18 of the United States Code.
Let me say that there should be little doubt that the subject
matter of S. 1301 is directly and clearly related to the common de-
fense of this nation, a matter over which the Armed Services Com-
mittee has sole jurisdiction.
At the same time I clearly recognize and respect the jurisdiction
of the Judiciary Committee and its distinguished chairman, my
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friend and colleague, Senator Thurmond, over matters involving ci-
vilian espionage.
Therefore, I fully intend to work closely with Senator Thurmond
and the Judiciary Committee as this bill moves through the
Senate.
Today we will hear from two witnesses from the Department of
Defense who will give us an overview of the problems confronted
by the Department relating to espionage and counterintelligence,
and will provide the Department's comments and views on the bill
before us.
First, we will hear from Mr. L. Britt Snider, Principal Director,
Counterintelligence and Security Policy in the Office of the Secre-
tary of Defense.
Then we will receive testimony from the Honorable Chapman B.
Cox, General Counsel of the Department of Defense who will pro-
vide us some insight over the legal issues raised by espionage ac-
tivities.
While they may be in the news and clearly have been on each of
our minds, obviously we will avoid questioning these witnesses
about ongoing criminal investigations of espionage offenses.
It would be inappropriate for senior officers in the executive
branch to comment on facts or evidence with respect to cases pres-
ently before the Federal courts.
I welcome our witnesses and thank you for appearing today.
Before receiving testimony, I would have yielded to the distin-
guished ranking minority member, Senator Glenn, who will be
with us presently, however he indicated his desire that we proceed
without him.
We are expecting, in addition to regular members of the subcom-
mittee, a number of members whose interest in this has caused
them to attend.
We welcome Senator Bingaman and will invite him to take part.
The distinguished Senator from Georgia, Senator Nunn, is also a
member of the subcommittee.
It is the plan of the Chair, if we have the attendance that I am
expecting, to use a system of alternating the questioning. We will,
of course, invite nonmembers who care to participate to question
the witnesses.
Let us begin by having. 10-minute rounds and see how that goes.
Senator Nunn, do you have a statement you would care to make?
Senator NUNN. No, not now, Mr. Chairman. I am very interested
in the subject. I am pleased you are holding this hearing. I think it
is enormously important. I look forward to the testimony.
Senator WILSON. Senator Bingaman.
Senator BINGAMAN. I have no opening statement. I appreciate
the chance to be here.
Senator WILSON. In that case, I will invite Senator Gramm, the
sponsor of this legislation to tell us what he wishes to before we
begin the testimony from the witnesses.
Senator GRAMM. Thank you, Mr. Chairman.
Mr. Chairman, you have outlined the bill. I would just like to
thank you for holding the hearing.
I think what we are trying to do here is to deal with a problem
that clearly is present today, but a problem that is going to become
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more serious as the new technology that we have developed in the
last 5 years, with massive investment in R&D, begins to move from
the scientific laboratories, where that technology is in the hands of
a relatively few thousand people to prototype development produc-
tion, where literally tens of thousands of people will at some point
have access to that technology.
I think what we need here is a reasoned approach. The reason I
wanted to introduce a bill that had four major parts that sought to
deal with the entire problem is that we want some happy medium
between a series of amendments that are offered with no hearings,
with no logical consistency that we all vote for because we are con-
cerned about the problems, versus the alternative which is no
action at all.
So, the objective here was to sit down with the Defense Depart-
ment, with the chairman of the Judiciary Committee, with the
chairman of the Armed Services Committee, and especially in light
of what we have learned from the Walker case, and try to put to-
gether a comprehensive bill to deal with'the problem; instead of
trying to attach that piece of legislation as a rider or an amend-
ment to another bill, to have a series of hearings to debate the
issue in full and then to move ahead, hopefully with Senate and
House approval.
The objective is, therefore, to deal with the problem and I want
to thank you for starting the ball rolling with this hearing.
Senator WILSON. Thank you, sir.
Let us proceed to receive the statement of L. Britt Snider, Princi-
pal Director of Counterintelligence and Security Policy in the
Office of the Secretary of Defense.
STATEMENT OF L. BRITT SNIDER, PRINCIPAL DIRECTOR, COUN-
TERINTELLIGENCE AND SECURITY POLICY, OFFICE OF THE
SECRETARY OF DEFENSE, ACCOMPANIED BY JACK DONNELLY,
DIRECTOR; COUNTERINTELLIGENCE AND INVESTIGATIVE PRO-
GRAMS, AND MAYNARD ANDERSON,. DIRECTOR, SECURITY
PLANS AND PROGRAMS '
Mr. SNIDER. Thank you, Mr. Chairman.
With your permission, I would like to read most of my prepared
statement and then I will be pleased to respond to any questions
you may have.
Senator WILSON. Go ahead.
Mr. SNIDER. Mr. Chairman, it is a pleasure to appear before this
subcommittee this afternoon.
I have been asked to describe the programs the Defense Depart-
ment has ongoing to prevent and detect hostile intelligence activi-
ties undertaken against our employees and contractors, and to com-
ment upon the provisions of S. 1301, now pending before the sub-
committee.
Accompanying me are Mr. Jack Donnelly, who is Director for
Counterintelligence and Investigation Programs, and Mr. Maynard
Anderson, who is Director for Security Plans and Programs, both
of our office.
By way of introduction, we all work for the Under Secretary of
Defense for Policy within the Office of the . Secretary of Defense,
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Dr. Ikle, who has overall policy responsibility for the Department's
counterintelligence and security programs.
Let me begin by describing in quantitative terms the enormity of
the security problem faced by the Department. As of the first of
April, we had a total of 4.3 million persons cleared for some form
of access to classified information.
Of these, 2.9 million were civilian or military employees of the
Department; and 1.4 million were employees of the more than
14,000 defense contractors with some form of security clearance.
While by far most of these cleared persons are physically within
the United States, DOD has some form of official presence within
120 countries around the world.
Last year these cleared personnel created and handled an esti-
mated 16 million classified documents, of varying degrees of sensi-
tivity.
DOD personnel, installations, and contractors have long been tar-
gets of espionage efforts as well as other types of technical collec-
tion efforts undertaken by our adversaries. For the most part, our
people and our contractors are rather easily identified by hostile
intelligence, both in terms of where they work and the sorts of ac-
tivities in which they are likely to be engaged.
We receive in the neighborhood of 600 reports annually of possi-
ble contacts of hostile intelligence services with DOD personnel.
All, I might add, are reviewed and investigated as appropriate.
Unfortunately, we must also recognize that not all espionage is
instigated by the other side. We have occasional instances where
Defense Department employees and contractors initiate the con-
tacts themselves, offering to sell classified information to which
they have access.
When weighed against the. vast numbers of cleared people, how-
ever, the number who agree to participate in, or initiate, espionage
activities is infinitesimally small. But it is equally true that one
person with the right access may be capable of compromising mili-
tary systems that cost the United States literally millions, if not
billions of dollars to develop and produce.
This may lead to actions to counter the latest U.S. military hard-
ware or the latest U.S. strategy. And so, from our standpoint, even
one case is too many.
So, what do we do to prevent and detect these efforts?
There are defense directives and regulations which address this
subject that would literally reach from the floor to the ceiling of
this hearing room. They cover virtually every aspect one can imag-
ine to protect classified information from unauthorized disclosure.
Without attempting to describe them in detail, let me identify
conceptually the sorts of programs encompassed here.
First, there are policies governing the classification of informa-
tion in the interests of national security. These are set forth in Ex-
ecutive Order 12356 which applies to all departments and agencies
of the executive branch, as well as its contractors. Flowing from
this basic document are rules which apply to the marking, han-
dling, reproduction, accountability, transmission, storage, and de-
struction of such information.
These policies encompass not only requirements to lock classified
information in safes, as one might expect, they also cover such
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things as the kinds of telephones that one might use to discuss clas-
sified information; how electronic equipment processing classified
information must be shielded to prevent emanations leaving the
area; what methods are acceptable for destroying classified infor-
mation; how information to be released to the public must be
screened for classified -information; whose permission must you
have before you can classify or reproduce a classified document;
what you have to do before you can share classified information
with an allied Government; when you have to have areas swept
electronically to determine the presence of listening devices.
In short, virtually every circumstance one can think of, in terms
of precluding the possible exposure of classified information to un-
authorized persons, is treated in the regulations of the Department.
The second major area of policy-apart from how classified infor-
mation is identified and physically protected-governs who shall
have access to it.
In general, access can be granted to someone whom the Depart-
ment has determined to be trustworthy and has a security clear-
ance, and who has a "Need-to-Know" information classified at a
particular level in connection with his employment with DOD, or
his performance on a DOD contract.
A clearance is normally requested by the employing office of a
DOD component, or by a cleared defense contractor, who must cer-
tify that the individual involved has a need to access classified in-
formation at the level of the clearance being requested.
The request for investigation goes to the Defense Investigative
Service, whose 1,555 investigators carry out all background checks
for the Department of Defense.
The checks performed in a particular case depend upon the level
of clearance requested. In general, persons receiving a top secret
clearance, and those requiring special intelligence accesses are sub-
ject to a full field investigation, while secret and confidential clear-
ances are based upon a so-called National Agency Check, which
amounts to a check of pertinent Federal agency files, including the
FBI, for indications of derogatory information concerning the sub-
ject.
Once the field investigation or National Agency Check has been
completed, the results are provided to the requesting DOD compo-
nent, or in the case of defense contractors, the Defense Industrial
Security Clearance Office, for a decision whether a clearance
should be issued the individual.
The process does not end there, however. Since 1983, comprehen-
sive reinvestigations are being done for those with top secret and
special intelligence accesses. For the last 2 years, DIS has done
roughly 40,000 of these.
Supervisors of cleared employees both in DOD and in industry
also have a continuing responsibility to identify and report facts
that become known to them concerning their cleared employees
which may have security significance. All such reports are investi-
gated by DIS or the military services, as may be appropriate.
There are also requirements in DOD and in defense industry for
periodic security awareness briefings, when cleared employees are
advised of the threat posed by hostile intelligence collection and
what to do should they be contacted.
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wi
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Approximately 1.3 million persons were reached by such brief-
ings last year. They were supplemented in defense industry by FBI
briefings, as well.
In addition to these measures which have general applicability to
all classified programs, we also have rules that apply.to especially
sensitive classified information protected within so-called Special
Access Programs.
Executive Order 12356 authorizes the Secretary of Defense and
the Secretaries of the military departments to create special securi-
ty compartments to protect unusually sensitive classified informa-
tion. At a minimum, only persons who have been specifically desig-
nated for the particular information are eligible for access.
In essence, the special access program is a way of institutionaliz-
ing the "Need-to-Know" principle. Additional security measures
not otherwise required with respect to normal classified informa-
tion are typically required, tailored to meet the particular needs of
the program in question.
I should also mention with respect to these special access pro-
grams that DOD is currently implementing a test program utiliz-
ing a limited polygraph examination as a condition of access to
such programs.
As you know, Congress authorized DOD to conduct such a test of
the polygraph-limited to 3,500 persons-as part of last year's De-
fense Authorization Act. This test was extended in the fiscal year
1986 authorization bill, passed by the Senate, to the end of fiscal
year 1986.
The third major area of policy deals with enforcement of the
rules. I have already mentioned the fact that the system itself has
a built-in self-policing aspect. All supervisors of cleared personnel
are charged with the responsibility for identifying and reporting in-
formation of security significance concerning their employees.
Security violations also may be reported on an anonymous basis
over the DOD hotline, established and operated by the DOD Inspec-
tor General. Reports made in accordance with both procedures are
investigated by the Defense Investigative Service, or the military
services as may be appropriate.
There are also a voluminous number of security inspections
which periodically occur; 26,000 were done within DOD in 1984.
In addition, all defense contractors who hold security clearances
are periodically inspected by the Defense Investigative Service to
determine compliance with DOD policy.
With respect to detecting actual instances of espionage, each of
the military departments has a counterintelligence investigative
agency responsible for its particular branch of service.
In the Army, the responsibility rests with the Army Intelligence
and Security Command.
In Navy, with the Naval Investigative Service.
And in the Air Force, with the Air Force Office of Special Inves-
tigations.
Each of these agencies conducts counterintelligence investiga-
tions and operations designed to detect spies within their ranks. In
the United States, all of these activities are undertaken jointly
with the FBI. Overseas, they are coordinated with the CIA.
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The subcommittee should also recognize that our investigative ju-
risdiction in these matters is limited to military personnel. The
FBI has primary investigative jurisdiction over all Defense Depart-
ment civilian personnel and contractors, and they coordinate such
activities with my office.
Finally, we receive critical support from the FBI, and occasional-
ly from other agencies, in terms of identifying DOD personnel who
may be involved in espionage. It is very much a cooperative effort.
Unfortunately, despite all of this, we have people who decide to
commit espionage and manage to escape detection for some period
of time. What can be done to prevent this?
Secretary Weinberger recently established a senior DOD commis-
sion, to be chaired by recently retired Deputy Under Secretary of
Defense for Policy, Gen. Richard G. Stilwell, to examine what
might be learned from the Walker case and develop recommenda-
tions for the Secretary.
There are obviously things that might be done to reduce the ex-
posure of classified information in general. Reducing the numbers
of people with clearances, as the Secretary has already directed, is
one such action and we are pursuing the goal of further reductions.
Obviously, the object is to accomplish the defense mission with as
few cleared people as necessary.
Bringing a greater degree of discipline to the classification
system is another. We are now developing new procedures to
reduce the numbers of classified documents being created-particu-
larly in the higher classification categories-and in return hope to
accomplish better protection for those that are classified.
We are also looking at ways to improve the investigations done
on those who require clearances, including, as I mentioned, how
the polygraph should be used to supplement such investigations.
The Department is now urging Congress to provide statutory au-
?thority for our investigators doing background investigations, to
obtain criminal history data from State and local jurisdictions
where such access is presently denied them.
I understand Senator Nunn introduced such a bill yesterday. We
are indebted to you, sir, for that and we hope it will be enacted by
the Congress.
There is also more that can be done to improve the odds that es-
pionage will be detected. An increased awareness on the part of su-
pervisors and fellow employees to indicators of espionage would, in
my view, produce particular dividends.
Perhaps, if nothing else, the Walker case and what we know of it
to date, will demonstrate to our employees that no office or no ac-
tivity is immune from this threat.
The resources devoted to the counterintelligence efforts of the
Government also clearly impact the problem. These resources have
increased substantially in recent years, and at the same time we
have been catching more people who are involved, or attempting to
become involved, in espionage.
Still, the assignment of the U.S. counterintelligence community
to keep track of the activities of known or suspected intelligence
operatives within the United States is a formidable one. Not only
are resources important in this regard, but the legal confines in
which hostile intelligence agents must carry out their activities
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17
within the United States are an equally important part of the
equation.
That environment, fortunately, became more restrictive in recent
years, and several proposals are currently pending in Congress to
limit the capabilities of hostile intelligence within the United
States still further.
Which brings me to S. 1301, itself a proposal to improve DOD
counterintelligence capabilities. Mr. Cox will cover the provisions
of the bill relating to new penalties for espionage under the Uni-form Code other provisio Military Justice; I will confine my comments to the
I can quickly dispense with sections 3 and 4 of the bill, which re-
quire the Secretary to submit reports within 180 days to the Con-
gress regarding:
First, the capabilities of the military departments and the Office
of the Secretary of Defense to conduct counterintelligence oper-
ations; and
Second, his plans for reducing the numbers of security clearances
within the Department.
We have no objections to these requirements.
Section 6 of the bill does raise the issue, however, of how broadly
the polygraph will be used in determining the access of DOD em-
ployees and contractors to classified informationygraph examination
.
Subsection (a) would mandate a limited Pof
as a condition of obtaining access to sensitive compartmented infor-
mation-which is a euphemism for information revealing intelli-
gence sources and methods-and require such examinations to be
given aperiodically thereafter.
Subsection (b) would provide the Secretar
au-
thority to require limited 1 Y with discretionary access to other categories of classifiiedainfinations ormat o as and tole utilize
such examinations aperiodically thereafter to determine continued
access.
If these two subsections of the bill were adopted, they would
appear to make a change of course over what this committee and
the Congress had previously authorized.
Without recounting the 2' years of discussions that went into
working out a consensus on the issue, let me simply remind the
subcommittee that in the fiscal year 1985 DOD Authorization Act,
this committee inserted a provision that authorized the Depart-
ment to undertake a test program utilizing a limited counterintelli-
gence polygraph examination for persons who required access to
highly classified information protected within the so-called special
access programs.
The test was initially to have run through September of this
year, and would be limited to 3,500 persons. At the end of the test,
we were to report the results and decide the shape of any future'
program.
Several weeks ago, this committee voted to extend the test pro-
gram at the same 3,500 level through to September 1986. This ex-
tension was agreed to by the Department, and it was included in
the bill which recently passed the Senate.
All of this came before the Walker case, however, and there have
been a great many people, both inside the Department and outside
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18
the Department, urging that we should make greater use of the
polygraph in our security programs.
And so, the issues posed by S. 1301 are whether the test program
approach be modified, and if so how?
On the first issue, we must defer to the committee. The Depart-
ment accepted the committee's proposal for such a test program,
and we are prepared to see it through.
If, on the other hand, the Congress now wants us to conduct ad-
ditional examinations covering additional categories of cleared per-
sonnel, or, at the conclusion of the test, begin implementing such a
program, we are prepared to adopt this course.
As a practical matter, whatever course is taken, the number of
polygraph examinations that are administered before the end of
fiscal year 1986 are not likely to exceed 3,500. We simply do not
have enough trained polygraph operators and polygraph instru-
ments to implement such a program on a more expanded scale at
this time.
Moreover, our capability to train and equip such operators is at
this juncture relatively limited. Our training facilities must be con-
siderably expanded and our inventory of polygraph instruments
considerably increased before any large-scale use of polygraphh,ex-
aminations will be feasible.
If the committee decides that DOD should be authorized now, or
at the conclusion of the tot t
ro
s
1 1
t
h
p
o m
gram, ? p emen
a po ygrap
program on a broader scale, then it should also consider whether
the "broader scale" set forth in S. 1301 is the best alternative.
As you recall, S. 1301 would require mandatory polygraphs for
SCI access, and permit the Secretary discretionary authority to use
such examinations as a condition of access to other types of classi-
fied information.
Our problem with this formulation is that since there are over
100,000 people in defense with SCI access, and polygraph examina-
tions would be required by law for such persons, it would take us
several years, given our limited number of trained operators,
before we could consider using the polygraph in other programs of
equal, if not greater, sensitivity.
We would, therefore, prefer a greater degree of discretion in
terms of how limited polygraphs will be employed.
As an alternative, as to how we should proceed from here we
would suggest you consider the following approach:
First, DOD would continue to implement and complete the al-
ready authorized test program, and report its results to the Con-
gress as directed.
Second, DOD would expand its training facilities equipment in
fiscal year 1986 necessary for a continuation of the program after
fiscal year 1986.
Third, at the end of the test program, DOD, in consultation with
the committee, would adjust its program for the future based upon
its experience with the 3,500-person test, and the recommendations
of the Stilwell Commission.
Fourth, at the conclusion of the test, however, the committee
would permit the Secretary to develop and operate the program
from that point in the manner in which he determined provided
the
oft
me
rec
cat.
1'
Vol
wl
mE
pr!
sot
all tii
in-
co
es
St
jo
w:
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19
the greatest degree of deterrence and protection, given the number
of trained operators then available.
This would be done with whatever degree of committee involve-
ment you wished to have, but we would not be tied to a statutory
requirement to polygraph large numbers of persons within specific
categories, at particular times, such as set forth in S. 1301.
Fifth, close and continuing congressional oversight would be in-
volved in monitoring the program as it develops over time.
I believe this approach offers many advan.es without ting
what has already been carefully worked out. In particular, littswould
mean there are the necessary resources available to implement the
program at the time the test has run.
It would also leave the Secretary in a position to apply such re-
sources where he felt they would do the most good. And, it would
allow us to factor in both the test experience and the recommenda-
tions of the Stilwell Commission and the views of the subcommittee
into any future program.
In conclusion, let me say we appreciate the concerns of this sub-
committee that we do all within our power to prevent and detect
espionage undertaken against the Department and the United
States. Obviously, we share those concerns.
We also appreciate the desire of Senator Gramm and others in
Congress who want to give the Secretary what he needs to do this
job. The polygraph is one technique which clearly merits use
within the overall program.
There is, however, I am afraid, no panacea. Whatever we may do,
there will be other cases-perhaps not as many, perhaps not as se-
rious, hopefully not as drawn out as has recently come to light.
It is the challenge for all of us involved in this area to minimize
their occurrence within the- limits of our resources and consistent
with the values and principles of a free society.
I will be glad to answer any questions you may have.
Senator WIlsoN. Thank you very much, Mr. Snider.
We have been joined by Senators Cohen and Denton, regular
members of the subcommittee.
Gentlemen, we are going to have 10-minute rounds to begin with.
Mr. Snider, I must say I find amazing some of your figures con-
cerning the number of personnel who have clearance for access to
classified information. Your information indicates that 2.9 million
military personnel and civilian employees of the Department pres-
ently have such clearance.
During fiscal year 1985 the Department has only authorized 3.2
million military and civilian personnel. That means that more
than 90 percent of the personnel in the Department. have some
form of security clearance.
Is there really a need for 90 percent of personnel to have security
clearances?
I find that mind-boggling. If we were to apply the provisions of S.
1301 to the numbers you have provided, and you are right to
remind us of our earlier judgment with regard to the polygraph,
and, if there are 100,000 of those 2.9 million who have SCI access
that would require mandatory application of the polygraph, that
would leave you faced with an impossible burden given the re-
sources that, you have.
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 20
That 2.9 million seems excessive. I would be grateful if. you
would explain really how this situation came about and, further-
more, if you would explain to the subcommittee whatever details
you can about how the Secretary intends to comply with. the re-
quirement in the bill that he detail his plans for a reduction in the
number of clearances within the Department.
Later, we will need to discuss, although the bill does not describe
it, the reduction of clearances on the part of contractor employees.
Let us deal with DOD directly at this point. It is clear that we
are going to have to shrink the number of clearances. The clear-
ances thand e polygraph resources don't fit. Even if we weren't talking
polygraph, what about this 2.9 million?
Mr. SNIDER. I think you are quite right. There are too many
people with clearances in DOD and in defense industry. How many,
I really don't think anyone knows the answer to, but clearly there
are a lot of people out there who don't need access to classified in-
formation, but for one reason or another have clearances.
As I mentioned in my statement, the Secretary imposed a 10-per-
cent reduction a few weeks ago in the number of clearances across-
the-board to be achieved by October 1.
Presumably on that date we will be talking about 80 percent,
using your figure, but even this is still too high.
Why did all of this come about? Well, we have seen a tremen-
dous increase in industrial clearances. That is where we have seen
most of the increase take place in the last 10 years in terms of the
number of people requiring clearances.
It stems from the fact that so much defense contracting now is
classified. It also stems from our competitive procedures which re-
quire any firm who wants to bid on a classified contract to receive
a security clearance before he submits a bid on that contract.
So, given the high tech nature of the equipment and hardware
systems that are being manufactured, quite a bit of which is classi-
fied, it requires clearances for the people who produce it, who oper-
ate it, who maintain it.
We just don't have tanks any longer that are heaps of iron and
steel. They have laser rangefinders and digital equipment built
into them which are classified. So, all of the tank operators have to
have clearances.
Senator WILSON. Let us stipulate to the fact that -increasingly
complex technology has given some impetus to this. I think the
real question is: Has there been routine certification, both by de-
fense contractors with regard to their employees and by the De-
partment itself, with regard to its employees, military and civilian?
Is it essential that all these people have this clearance? Are we
simply going to have to require then a far greater discipline and
subject them to the kind of techniques that will give some assur-
ance that our security won't be breached?
. Mr. SNIDER. Just to clarify, we wouldn't give routine certifica-
tions as a means of granting clearances, but I think the problem
you are getting at is that we have not put any limits or restrictions
either on contractors or defense components in terms of the
number of clearances they can request.
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Whatever they have requested heretofore, the Defense Investiga-
tive Service has simply run an investigation and the results are ad-
judicated.
I think the Secretary's action, which included not only a reduc-
tion in issuing clearances, but a reduction by 10 percent in the
number of requests for new investigations in fiscal year 1986 will
force DOD components and industry to manage the requests they
are submitting.
I think we will get much better assurance that in fact the people
who are being put in actually need clearances.
Senator WimoN. If the bill is adopted, the requirement is that
the Secretary make plans for this reporting requirement within
180 days.
In your testimony you stated there is no objection to that. I will
simply take that at face value. I have asked for some detail on how
it is going to be done. But if you feel there is no objection or prob-
lem, then I will accept that.
If, you feel there is, now is the time to speak or the Secretary will
have a problem down the road, obviously.
Mr. SNIDER. There is no objection. In fact, we will provide a
report to the subcommittee whether the bill is passed or not, if you
want us to.
Senator WILSON. We are asking you to provide useful informa-
tion so that we can impose a reasonable requirement.
Mr. Snider, you indicated that the 1,555 investigators of the De-
fense Investigative Service carry out all the background checks for
the Department of Defense. There have been numerous press re-
ports in recent weeks about gigantic backlogs of these investiga-
tions.
Furthermore, you point out in your testimony that since 1983,
comprehensive reinvestigations are required of those personnel
with top secret and special intelligence access clearance and that
DIS has done roughly 40,000 reinvestigations in the last 2 years;
40,000 is only about 5 percent of the some 730,000 existing clear-
ances for access to top secret or special intelligence access. At that
rate it is going to take you 40 years to do the required investiga-
tions.
In your report to us obviously you are going to call for increased
resources. I will simply invite your comment on it because it seems
to me that that is almost a rhetorical question.
Mr. SNIDER. Let me clarify one thing. The number involved here
in the top secret and SCI area who have reached the point where
they need a 5-year update is around 279,000. It is not quite as bad
as 700,000, the total population of top secret and SCI access.
Even at that, you are quite right; we have a sizable backlog in
terms of doing the periodic reinvestigations on schedule.
We do think that the reductions in the number of investigations
that are going to be requested over fiscal year 1986 is going to
mean that we will have more investigators to do periodic reinvesti-
gations, and our rate of accomplishing these reinvestigations will
increase over time.
We obviously would like to get more resources for the Defense
Investigative Service to reduce this backlog, to eliminate it, so that
we can keep on schedule.
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22
Senator WILSON. Thank you, sir. My time has expired.
Senator Nunn.
Senator NuNN. Thank you, Mr. Chairman.
I have a couple of questions on the overall question of security
clearance.
Is it true, Mr. Snider, that DIS does not charge anything for secu-
rity clearance checks?
Mr. SNIDER. That is correct.
Senator NuNN. Are you reexamining that? It seems to me that if
we really believe in the system in the Government as well as the
free enterprise system, if you charge for something, you have fewer
people than if you give it away free.
Doesn't it stand to reason if you started charging, as the Office of
Personnel Management already charges for their security clear-
ance checks, that you would have fewer requests?
Mr. SNIDER. We have looked at that before and our conclusion
has always been that it just entails much more administrative cost
in terms of other DOD components having to budget for this func-
tion separately, rather than have the Defense Investigative Service
carry it out for the Department as a whole.
The problem is that DIS requirements have been so enormous in
recent years they Lust haven't budgeted enough resources.
Senator Nui . The point is no matter what you tell somebody, if
you are giving something away, if they can get as many checks as
they want and it doesn't come out of their budget or the contractor
does not have to pay for it, it stands to reason there will not be any
serious inhibition. First, if you charge a reasonable fee it repre-
sents an income for the Department of Defense Investigative Serv-
ice and could conceivably be used to beef up resources there.
Second, it acts as a disincentive.
Right now you have OPM that charges for their security clear-
ances. They charge other agencies. DIS doesn't. So, there is a direct
incentive for an agency that has any kind of budget problem to go
to DIS.
I think you need to look at these numbers.
Mr. SNIDER. We will do that.
Senator NuNN. On the polygraph test, how are you conducting
the ones that you are doing now, the 3,500?
Can you give a general description of what you are doing now,
how you are going about it?
Mr. SNIDER. Sure. To date there have only been roughly 300
exams given. They have been within programs that have been
nominated by the Secretaries in the military departments, special
access programs, and each of the military services' investigative
agencies that have trained polygraph examiners on board are being
asked to contribute their part and help carry out this test program.
They are intentionally taking it out of the existing pool of exam-
iners that are normally used for criminal investigations.
We expect to have another 300 examinations done by the end of
this fiscal year and the balance done in the next year to come up to
the 3,500 test limit.
Each of the military departments has nominated programs for
the test. Defense Intelligence Agency has also nominated its intelli-
gence positions for purposes of the test. We are ready to carry it
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__23 -
out and we will have enough to meet the test, but it will be done
within existing resources.
Senator NUNN. How many operators do you have that qualify for
Polygraph examining to administer the 3,500 tests?
Mr. SNIDER. I am not sure I understood your question.
Senator NUNN. To administer 3,500 tests, you have 3,500 tests
you are permitted under the test program?
Mr. SNIDER. Right.
Senator NUNN. How many polygraph experts do you have to
have to be able to administer that number of tests?
Mr. DoNNELLY. Each one does 200 a year, 250 a year, or so.
Mr. SNIDER. Probably in man-years about 20 examiners.
Senator NUNN. Twenty examiners?
Mr. SNIDER. That is a rough approximation. We figure one exam-
iner can do 250 exams a year. That is for planning purposes.
Senator NUNN. Do you have the capacity?
I believe your testimony here regarding the bill that we are
having a hearing on is that you really can't expand that beyond
what you are doing now up through at least fiscal year 1986.
Is that what you are saying?
Mr. SNIDER. That is correct.
Senator NUNN. What are the limiting factors that keep you from
expanding?
Mr. SNIDER. The limiting factor is our inability to train qualified
examiners in a very short period of time. The Army is executive
agent for the Department and runs the Department's polygraph
school. It has a capability of training only 48 examiners a year, and
has a very small staff of seven people.
In addition to the requirements that DOD has, the school also
trains polygraph examiners for seven other Federal agencies.
Out of the last couple of graduating classes, half have been poly-
graph examiners that DOD is training for other agencies.
Senator NUNN. You are basically saying no matter what you
have in authority, you are not able to carry out more than what
you are now planning in the next fiscal year?
Mr. SNIDER. Yes, since we essentially must take the additional
examination out of hide, so to speak, from those doing criminal
work.
Senator NUNN. What if you are given authority and money to go
out and hire other. people and beef up your training program, could
you do that?
Mr. SNIDER. We could certainly beef up the training my statement suggested, that is precisely what we would like to do.
We would like to expand the capacity of the school. We have not
seriously considered contracting out for this kind of service, nor
wCa we, I think, consider that very
seriously.
r NUNN. Why is that?
Mr. SNIDER. I think the basic reason is quality control over the
Polygraph examiners and the examination process. Having your
own employees do it is essential.
I think if in fact we contracted out, we would lose a great deal of
control over that process. It is in a very important area to utilize
People with good judgment, good training.
Senator NUNN. I agree with that. You are absolutely right.
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I
Senator COHEN. If you will yield on that point, as I recall, John
Walker had his own polygraph examination division within his
firm so that those Navy personnel would be in charge of drug
abuse, they couldn't be polygraphed by the DOD, they could be
polygraphed by John Walker's outfit to find out whether they could
erect an adequate defense.
Walker, himself, could take that polygrraph information and find
more recruits in terms of people who had vulnerability within the
services.
Senator NUNN. In section 6(a) of,the Gramm bill, the Secretary
of Defense is required to use these examinations to determine ini-
tial eligibility for access to sensitive compartmented information.
Now, in the course of the year, how many persons do you clear
for access to sensitive compartmented information?
Mr. SNIDER. It is roughly 8,000, I am told.
Senator NUNN. 8,000 per year?
Mr. SNIDER. Yes, sir. This would not be including NSA. It would
be including the rest of the Defense Department.
Senator NUNN. How many do you have that are already cleared?
What is the number cleared for sensitive compartmented infor-
mation?
Mr. SNIDER. 102,000, approximately.
Senator NUNN. If you were going to actually implement 6(a)
fully, you have 102,000, and would have 8,000. that would be
cleared. I am not sure, Senator Gramm could tell us, the other sec-
tion here also requires periodic use to determine continued eligibil-
ity of such persons.
I am not sure whether that is over 1 year or 2 years, but let us
assume for the purpose of getting a fixed number of polygraph op-
erators, you need, if you did implement that, let us say over a 2-
year period, you have 8,000 new ones each year, that is eight times
two, 16. You have 102,000 backlog, that would be 118,000 people.
Now, based on your formula of 250 people per year, how many
polygraph examiners would you have?
Mr. SNIDER. I don't have my calculator, but it is a matter of di-
viding 250 into that.
Senator NUNN. 250 into 118,000. That is about 472.
If you do not want to go outside, if you beef up your training pro-
gram, how long would it take to get into a position to carry that
out and what are you asking for in additional resources?
Mr. SNIDER. What we are suggesting, we have taken a look at
this, what we would like to do at least is adopt this for planning
purposes, to expand the capability of the school to train 108 exam-
iners a year as opposed to 48 examiners a year.
We think, given the attrition that we ordinarily have in the pro-
gram in terms of polygraph examiners leaving the program, re-
quests from other agencies that we train their people, we think if
we had 108 coming out of there every year, it would give us enough
capability to establish a credible program of the sort we are talking
about here. .
Senator NUNN. It would take a long time to get that?
Mr. SNIDER. Yes, sir.
Senator NUNN. One other question.
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25
You said there are other areas more important or just as impor-
tant as sensitive compartmented information.
What other areas are you referring to that are just as important
and what is the number of people involved here?
Mr. SNIDER. Apart from SCI access, we have special access pro-
grams that cover primarily R&D programs which DOD considers
extremely important.
We also have operational plans and programs that are in fact en-
compassed within special access programs that again we consider
every bit as sensitive as intelligence reports or intelligence sources
and methods.
Senator NUNN. What are the numbers?
Mr. SNIDER. There are approximately 43,000 defense employees
other than those with SCI access that are cleared for some form of
special access program. Some also have SCI access.
Senator NuNN. 40,0007 ---
Mr. SNIDER. 43,000. Other than what is in SCI access programs.
Senator NuN. at is tote those
bined? otFier two categories com-
Mr. SNIDER. Yes, sir.
Senator NUNN. Does that include defense contractors?
Mr. SNIDER. It does include defense contractors.
Senator NUNN. If you put everything that you felt was equal to
the SCI clearance in one box, you would have 118,000 plus 43,000,
about 151,000 people in that category of very important?
Mr. SNIDER. That is correct. Or course, this does not even include
programs that are classified top secret or secret that are again very
sensitive.
We run most of our counterintelligence operations and HUMINT
operations at the secret level, for example, and these are not even
contained in a special access program.
Senator NUNN. Thank you, Mr. Chairman.
Senator WILSON. Thank you, Senator Nunn.
Senator Cohen.
Senator COHEN. I have a couple of questions and will then yield
to Senator Gramm.
What has been your experience to date? How effective has it
been in detecting those who might be susceptible or who might
have been compromised prior to having access to the information?
Mr. SNIDER. We think it can be a very effective tool with quali-
fied examiners, up-to-date equipment and quality control
proce-
dures, with supervision over the whole process. We think it has
been very effective.
It has been used in NSA for years, as you know, as a condition
for employment there. All applicants for employment in NSA take
the polygraph examination. NSA has found it to be unusually
useful in terms of producing derogatory information about a par-
ticular subject through his own admissions that would otherwise
never come out in the process of the background investigation.
They have even had a number of cases where they have found
people who were apparently sent to NSA to commit espionage, to,
in fact, penetrate that Agency.
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26
We also use it other than in NSA primarily in the criminal area,
in assisting in criminal investigations.
I ought to point out that whenever it is used, the results of the
polygraph are never taken solely as a basis for doing anything. It
supplements other investigations that- the Department does. We
wouldn't take action based solely on the results of the polygraph.
Senator COHEN. Are there any restrictions on the type of ques-
tions that are asked?
Mr. SNIDER. As far as NSA is concerned, it is a full lifestyle
polygraph for employment in NSA. As part of our counterintelli-
gence test program, however, we have a very limited set of ques-
tions, essentially asking the subject if he is a spy, does he know
anyone who is a spy, getting him to answer that kind of direct
question on the polygraph.
Of course, the criminal investigation is related to whatever the
subject or issue is.
Senator COHEN. Let me ask you a question.
If you ask, do you know a spy or anyone who knows a spy, what
about the type of personal questions that might make that individ-
ual more susceptible to being blackmailed?
Mr. SNIDER. We do not cover those in the test program. It is lim-
ited only to the questions I mentioned. If we had a showing of de-
ception, I am sure the examiner would then ask the person who he
was examining what he thought was the basis for his reaction. It
may get into other subject areas.
Senator COHEN. I am thinking more along the lines of what hap-
pened with an FBI agent on the west coast, along the lines of what
has been happening with respect to these spies, whether for ideo-
logical reasons or whether for greed or money.
Is your polygraph detector test going to pickup the kind of vul-
nerability that might lend itself to an individual like Walker or
anybody else?
Is it so helpful that you can ask Senator Nunn, Senator Gramm,
do you know any spies?
We know a lot of people down at the Embassy who could be
spies.
Senator NuNN. I know some Senators who have written about it.
Senator COHEN. That is not necessarily going to help you out.
Mr. SNIDER. I understand what you are saying. You are probably
right.
On the other hand, when you start asking personal questions, it
raises a lot of additional problems, as you can appreciate, for our
employees.. We limit ourselves to security questions.
Senator COHEN. We hear a lot about exit polls in California.
What about exit polygraphs?
Senator Nunn and I serve on the Governmental Affairs Commit-
tee and we recently conducted hearings, Christopher Boyce being
the most celebrated witness appearing before us. One of his recom-
mendations is not periodic polygraphs, but exit polygraphs;
who were in the service or worked for a defense contratorknelw
that before they could leave one position and go on to another, they
would have to submit to a polygraph test.
Mr. SNIDER. I think that might be a pretty strong deterrent to
people who think of commiting espionage.
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27
On the other hand, by waiting until termination of employment
you put yourself in a position of having lost the information you
are worried about.
Senator COHEN. That could be combined with the other.
Senator GRAMM. If he knew it was coming, it would be a deter-
rent.
Senator COHEN. Finally, should we have special clearance proce-
dures for those who have crypto specialties?
Mr. SNIDER. That is an interesting question.
The National Security Agency thinks we should. There used to
be, in fact, a special designation if you handled crypto materials, or
crypto access, but the old program of crypto access special des-
ignations did not involve special clearance requirements.
As I understand it, it was a simple matter of having a command-
ing officer or employer look at a particular employee and decide he
was a trustworthy person and designate him as a crypto custodian.
So, we weren't getting much more protection.
Senator COHEN. Walker was patriotic. Isn't that a classic case.
What can you judge by looks?
Mr. SNIDER. Not very much.
Senator COHEN. I think it is something you ought to look at
anyway.
Mr. SNIDER. We will be looking at that.
Senator WILSON. Thank you, Senator Cohen.
Senator Bingaman.
Senator BINGAMAN. Thank you, Mr. Chairman.
I gather from your testimony, Mr. Snider, your position is that
although the Defense Department was in general
the test program that the committee set out in the agreement
author-
ization bill this year, that as a result of the Walker case, you now
feel that that is not adequate and that you need additional author-
ity for polygraphs?
Is that right?
Mr. SNIDER. I am not sure that is quite right. I think it has
always been our intention that there would be some form of pro-
gram that would continue after the test.
We are certainly willing to look at the results of the test in
terms of calibrating the system for the future. We are prepared to
go with the test.
We would, on the other hand, like to have in the future some
sort of authority, or at least agreement on the part of the Congress,
that this is something that should be part of our security program.
Senator BINGAMAN. What I am getting at is for fiscal year 1986
we had thought we had an agreement by the Defense Department
that the test program of 3,500 a year was adequate and now I am
unsure as to whether you believe that that is adequate for fiscal
year 1986.
Mr. SNIDER. It is adequate for fiscal year 1986 if for no other
reason than we can't do any more than what has been proposed in
the test already. If we had the capability in place to do more, I
would favor a larger number. We just simply don't have the capa-
bility.
Senator BINGAMAN. When is General Stilwell's Commission to
report on this?
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Mr. SNIDER. General Stilwell's Commission is to report within
120 days of the date of his charter, in fact. It will be approximately
4 months.
Senator BINGAMAN. It is your thought, based on what you know
now, that you need to expand or you would like to expand your use
of the polygraph even before his report is complete?
Mr. SNIDER. As I said in my statement, we would like to go
ahead and proceed with the test and then look at the expansion at
the end of it in light of his Commission's recommendations as well
as where we are in terms of having trained operators available.
It will take some time just to expand our training facilities. We
recognize this.
Senator BINGAMAN. Are there examples where people have
passed these counterintelligence polygraph exams which are given
to ask a'person if they are a spy and then they turned out to be
spies?
Mr. SNIDER. Not that I am aware of.
Senator BINGAMAN. I thought I heard about some Czech emigres
who the CIA polygraphed who turned out to be a spy, although he
had successfully passed the exam.
Do you know anything about that?
Mr. DONNELLY. The Czechs you are referring to were poly-
graphed when they were interpreters for. the CIA. I understanthat the reexamination of those charts changed the minds of the
experts and the experts misread the charts at the time.
Senator BINGAMAN. So, after he turned out to be a spy, they
went back to tell that they should have known he was a spy?
Mr. DoNNELLY. Some of the polygraph operators say you don't
beat the machine, you beat the operator.
Senator BINGAMAN. I know this is sort of the purpose of the test
program, but do you have any sense for the extent of false nega-
tives where a person does OK, comes out clean on the polygraph,
but later turns out to be a spy?
Do you have any preliminary thoughts as to the extent of the
false negative problem or the false positive problem?
Mr. DONNELLY. I don't think we have any statistical basis to
make any prediction on that. We are satisfied that the number of
false positives would be very limited, provided we have well trained
people, have good quality control backup and separate people look-
ing at the chart after the operator looks at the chart.
Senator BINGAMAN. Let me ask something that you said, Mr.
Snider, a little earlier that caught my attention.
You said that a tank operator needs a clearance because the
tank is equipped with high technology devices.
I am just wondering, if you carry that to its logical extreme, ev-
erybody in the world ought to be polygraphed these days because
you have such access to high technology.
Is that the basis that anybody who comes in contact with high
technology machinery, even to operate it, needs a clearance?
Mr. SNIDER. Well, most of the military department manuals on
how to operate and repair their equipment are in fact classified.
Some people who have to do that require clearances to see the
manual.
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within
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Getting back to your question, we do not necessarily equate a se-
curity clearance, for example, at the confidential level with a re-
quirement for a polygraph. I think we have to use more judgment
than that in terms of protecting the most sensitive information we
hold, given our limited resources.
Senator BINGAMAN. Let me characterize the concern .I have and
you tell me if I am wrong or right.
I think the problem is that we have too many people who are
cleared for classification. We have too much material that is classi-
fied.
I am concerned that with the best of intentions the suggestion
that we greatly expand the use of the polygraph may just add an-
other layer of too much checking on too many people whom we
should not have to check on in the first place because they should
not have access to this information.
Is the solution to the problem we have, that the Walker case
highlights or any of the rest of it, more polygraph examiners and
more machines? Is that the solution?
Mr. SNIDER. Let me say this. I agree with you there are too many
people cleared, and there are too many classified documents.
I also think that we do need to be able to use the polygraph, par-
ticularly in areas of extreme sensitivity, for programs that if they
are penetrated, will cause serious harm to the country, to the De-
fense Department's programs. It is a tool, a useful tool.
Senator BINGAMAN. You don't see the present law as a major im-
pediment to your ability to do that right now?
Mr. SNIDER. No, the only impediment we have in the law is the
restriction in the authorization bill.
Senator BINGAMAN. Restriction on the amount of money you
have; is that what you are saying?
Mr. SNIDER. The restriction that confines us to doing a test pro-
gram. That is the only new use we can make of the polygraph in
this fiscal year.
Senator BINGAMAN. YOU tell me even if you had authority to
make more use of it, you don't have the people and you haven't
asked for resources to do that?
Mr. SNIDER. To date, that is correct.
Senator BINGAMAN. So that the real limitation on you is the lack
of resources and those are resources you have not requested of the
Congress?
Mr. SNIDER. Yes, lack of resources. We want to make sure what
resources we get are applied prudently within the program where
we will see the greatest benefits. We are not trying to polygraph
everyone.
Senator BINGAMAN. Obviously, you want to do it effectively.
Thank you very much..
Senator WILSON. Thank you very much, Senator Bingaman.
We will be in recess until 3:30.
[Recess.]
Senator WILSON. The subcommittee will reconvene.
Our subject is'S. 1301:
The Chair will recognize the distinguished ranking member, Sen-
ator Glenn, for a statement and questions.
Senator GLENN. Thank you, Mr. Chairman.
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I would like to ask unanimous consent that my opening state-
ment be entered into the record as though delivered.
It is a statement of my concern about this particular area. I will
not bother to read it here, but I would ask that it be entered into
the record.
Senator WILSON. It will be entered into the record in its entirety.
[The prepared statement of Senator Glenn follows:]
PREPARED STATEMENT OF SENATOR JOHN GLENN
Mr. Chairman, like all Americans I have been very concerned by the revelations
of spying and espionage that have come to light as a result of the Walker espionage
case in the last few weeks. The full damage to our national security as a result of
the activities of this spy ring is still being assessed, but there is no doubt that this
damage has been severe.
Unfortunately, this spy case just underscores the conclusions of the 10 months of
hearings and investigations that we recently completed on the Government Oper-
ations Permanent Subcommittee on Investigations: the Soviet counterintelligence
threat is real and pervasive; we need to improve our own counterintelligence capa-
bilities to counter this threat; and our procedures for granting access to sensitive
classified information to individuals in and out of government need to be tightened
considerably.
The bill we are considering today, which has apparently been drawn up as a re-
sponse to the Walker spy case, includes a number of very far-reaching provisions:
The bill includes peacetime espionage under the Uniform Code of Military Justice
and prescribes a sentence of death or mandatory life imprisonment for any military
member convicted in an espionage case involving a communist country.
The bill requires the Secretary of Defense to use polygraph examinations in
granting individuals access to sensitive compartmented information, and grants au-
thority for the Secretary to require polygraph use in determining access to any clas-
sified information.
Finally, the bill amends the Federal Criminal Statutes in title 18 of the United
States Code to require a mandatory sentence of death or life imprisonment for any
person convicted of espionage on behalf of a communist country, and establishes
procedures for federal courts to use in deciding whether to apply the death penalty.
I assume this last provision will require sequential referral to the Judiciary Com-
mittee.
Mr. Chairman, this bill raises many complicated and controversial issues. In my
view, in order for us to act in a deliberate and responsible manner on this legisla-
tion the Subcommittee will have to hold a series of hearings on this bill. We will
need to hear from the Department of Defense, and possibly representatives of the
military services, on their views of this legislation. We will need to hear from the
Justice Department. And we will also want to call outside witnesses, including ex-
perts in constitutional law, to give us their views on this bill.
I am very concerned about the whole subject of Soviet espionage and our ability
to counter this threat. But this is too important a subject to rush to judgement on a
wave of public concern. I will be glad to work with the Chairman of the Subcommit-
tee in the coming weeks in drawing up and participating in a series of hearings that
will allow a full and complete consideration of the issues raised in the legislation
before the Subcommittee.
Mr. Chairman, I look forward to the witnesses' testimony.
Senator GLENN. What is your reliability on polygraph?
I am concerned about the penalties in this bill, I am not neces-
sarily against them, but I want to make sure we get all these
things adequately attended to.
Mr. SNIDER. You can read a lot of opinions on that. Our experts
feel that reliability is in the range of 95 percent.
Senator GLENN. I have heard various reports and the figures
were exactly that, a high of 95 and a low of 75.
Mr. SNIDER. That is the approximate range most often cited.
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Senator GLENN. How do you take care of that now out at CIA or
NSA where people may be completely aboveboard or legit, yet one-
fourth could potentially have some problems?
Mr. SNIDER. We take a number of precautions.
First of all, if there is discrepancy shown on a particular ques-
tion and it can't be resolved between one operator and the subject,
we would give him a second examination by a different examiner
to try to resolve any source of discrepancy on the chart.
I think more importantly than that, we simply will not take
action based solely on the results of the polygraph examination.
Senator GLENN. There are some people who are just polygraph
prone or polygraph vulnerable, or whatever you say, that it just
gets to them. I have heard that.
There are people who are congenital liars, whose blood pressure
is not disturbed one wit by lying. So, they get by.
Mr. SNIDER. I am not an expert on the subject, but I have seen
how they do it at NSA.
What the process is intended to do is to establish a baseline of
physiological reactions so if you are in an excited state, it will es-
sentially form a baseline of your physiological reaction at that
level of tension, so that when they get to the questions that are of
interest on the exams, it measures the reactions above that estab-
lished baseline.
So that if you are particularly nervous, your reactions would al-
ready be factored into the process. Reactions above that are what
the polygraph measures.
Senator GLENN. How do you make certain that the polygraph
record is kept secret?
I presume you get into personal questions, things like that, that
could be damaging to a person if it were let out.
Are these kept very close?
Mr. SNIDER. Yes, sir. We only use personal questions with regard
to employment at NSA. In the test program we do not ask personal
questions.
Even with regard to the test program and the NSA, the poly-
graph results are kept within the office that administers them.
They are not disseminated any further.
Senator GLENN. Do you think if we put in a system like this, that
it should be strictly prospective or should it apply to everyone?
Should it apply to new employees who are coming in and they
know it is part of their employment procedure or should it be ap-
plied to everyone?
What does the law say? Is there any constitutional problem?
Mr. SNIDER. There is no law per se regarding the polygraph. We
have this limitation, of course, in our authorization bill in terms of
the test program that we are authorized to run and do no more.
There are no statutory prohibitions on polygraph examinations
per se that I am aware of.
Senator GLENN. Are there any States that admit polygraph evi-
dence in court?
Mr. SNIDER. There are some States that admit such evidence
based on stipulations. I know that there are quite a few,,but I don't
know how many. It is on stipulation of both parties that they
admit results of the polygraph. _
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32
Senator GLENN. I am just concerned. I am not against this. I
know CIA and NSA have used it and used it effectively. But people
there know if they are going to apply for a job at CIA or NSA that
they are going to go through a polygraph.
That is a bit different than taking people who have worked 25
years in the Pentagon, and saying, now you have to take a poly-
graph. I can see people getting nervous because they don't know
anything about it. They have heard it is unreliable and heard this
and heard that. It may be a different ball game.
Mr. SNIDER. You are quite right. It is a problem with our employ-
ees, no question about it, who have had access, who are offended by
the idea that we are calling their trustworthiness into question.
Senator GLENN. You think it has been helpful?
Mr. SNIDER. Notwithstanding the problems it generates, yes, sir.
I think definitely it ought to be part of the defense program.
Senator GLENN. Now, let me carry that a step further, too, be-
cause what I am about to say will be very controversial.
There are a lot of secrets over in the Pentagon, lots of secrets in
NSA and CIA, lots of secrets in the contractors downhill. But there
is one place that all that comes together and is reported to and
people who have secrets are right here on the Hill.
Would you recommend that as part of covering this whole proc-
ess and making sure that our whole process is covered, that any
committee here on Capitol Hill that has oversight functions over
the Pentagon or any of the contractors in any way whatsoever that
deal with classified material also be subject to polygraph?
Senator WILSON. That will cut down on the number of applicants
for the Intelligence Committee and the Armed Services Committee.
Senator GLENN. I am not talking only about the Intelligence
Committee, but also the. Armed Services Committee, the Foreign
Relations Committee, and anyone who has oversight over a func-
tion of Government who would be required by the executive branch
to get polygraphed as a result of this.
Would the Oversight Committee also be required because that is
just as vulnerable a point as anywhere else in the chain to me?
Mr. SNIDER. I would have to give you a personal opinion on that
one because I don't think the Department has faced that issue.
Yes, I don't see why you would want to make a distinction.
Senator GLENN. I don't either.
Mr. SNIDER. DOD clears, in fact, congressional staff for access to
its information.
Senator GLENN. I would say we run our own polygraph operation
here. That is one place I would vary, I guess, because I wouldn't
want to see this used as a political thing. If people up here or in
the executive branch do not like something, there would be all
sorts of allegations back and forth.
I think we ought to run our own polygraph operation here. If we
are going to require it of other folks and we are getting the same
information here and we have staffs and people here just as they
do in the Pentagon and contractors, it seems to me we should have
the polygraph extended to Capitol Hill also if we are going to cover
the whole operation as a Government.
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I would want to keep the politics out of it. I would rather see us
do our own polygraph operation right here and not depend on the
Pentagon or someone else to do it for us.
Mr. SNIDER. I checked this before I left. We had DOD granted
clearances of over 1,600 congressional employees and staffs. I was
surprised to hear that large a number.
Senator GLENN. 1,600 just on the Hill?
Mr. SNIDER. 1,600, just the DOD clearance.
Senator GLENN. I am into my 11th year here. One of the things I
was most surprised about when I came to Capitol Hill and went on
the committee here was how classified material was treated.
I had just come out of 23 years in the Marine Corps and you talk
about a way to ruin a career-let a piece of classified material get
out.
I drove all night one night from Patuxent River, MD, because
they had found a piece of confidential material-confidential
means it is cleared for the front page of the Washington Post these
days-but just confidential. It had been picked up on my desk up
here and I was being written up.
That would have ruined my career in the Marine Corps or I
would not have been promoted. I drove all the way from Patuxent
River and sat in the BuAir building-it used to be on the site
where the Vietnam Memorial is here, that old tempo that used to
sit along the Reflecting Pool back there-and talked the duty offi-
cer out of writing that up officially on me.
That is the way it used to be treated. To come here on Capitol
Hill and see secret material floating around and passed out with no
marks on it at committee meetings shocked my soul when I got
here. I have become hardened to it through the years.
I think if we are going to require polygraphing at other places,
we are part of that defense chain right here, a key part. We are
where all the information comes to right here. So, if there is one
spot that is vulnerable in addition to DOD, it is us.
I will probably, at an appropriate time when we get ready to
markup, either here or in full committee, put that in. If we are
going to cover that operation across the river, we had better cover
our operation here, too.
Thank you.
Senator WILSON. Thank you, Senator Glenn.
Senator Gramm.
Senator GRAMM. Thank you, Mr. Chairman.
Let me go back to a question that was asked by the Senator from
New Mexico because either I don't understand the facts or else you
did not portray them.
You were asked the question what the constraint was in the use
of polygraphs and the question ended up being expressed that in
fact you placed no limits except the number of personnel.
Is that right?
Mr. SNIDER. I didn't explain that very well, Senator. We, obvious-
ly, have a limitation in the fiscal year 1985 Defense Authorization
Act that says we cannot undertake any polygraphs apart from this
3,500.
I
i
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Senator GRAMM. The fact is if you had a million operators who
were capable of doing it under the restrictions imposed by the Con-
gress, you could only do a 3,500-test program; is that right?
Mr. SNIDER. That is correct.
Senator GRAMM. Did DOD ask for 10,000 as a buildup, as a long-
term equilibrium point and the Congress turned that down?
Mr. SNIDER. We were asked in previous hearings, Senator, what
we thought would be a credible program, and we responded we
would like to do 10,000 examinations a year, yes, sir.
Senator GRAMM. First of all, the figure was raised that if in the
long-term equilibrium you decided to have everybody with compart-
mentalized clearance be given a test, how many people would it
take to do that?
If you gave them a test every year, it would take 500 people.
The point was also made maybe we are going to do too much
checking on too many people. The whole point in this bill is to
mandate the reduction in the number of clearances. Whether you
would want 500 or more to do it every year, or whether you would
want the number of people you have in it, what we are looking at
is an upper limit of 500.
I have to admit, and please forgive me for my strong opinion,
based on relatively little information, but I am in the business
where people form those opinions, the idea that we cannot expand
the number of people who give polygraphs as rapidly as we expand
the number, of people who conduct brain surgery is just an insult to
my intelligence. I don't believe that.
Let me ask you a question.
If I went over today, following Senator Glenn's suggestion, and I
say, boys, give me a test and ask me the simple questions, how long
would it take you to give me that test?
Mr. DONNELLY. About an hour.
Senator GRAMM. You are telling me that you could give me that
test in an hour and yet an operator can only give 250 tests a year?
They must have one hell of a union.
Can you explain to me why they can only give 250 tests a year if
they can give me a test in an hour?
Mr. DONNELLY. We really don't have any experience with regard
to the counterintelligence test to really give you solid numbers.
The 250 tests is based upon the productivity of our criminal poly-
graph operators. They are located in limited numbers, they do an
awful lot of traveling.
Senator GRAMM. Let me stop you there because I have a limited
amount of time.
You are telling me a lot of their time is spent traveling to give
these tests?
Mr. DONNELLY. They feel they can just about run three of the
criminal on the polygraph today.
Senator GRAMM. You gave me the figure of 250. Let me make my
point.
If you have a scarce resource, you let the mountain come to Mo-
hammed, not the other way around. If you were practicing medi-
cine and you were going to go out and visit patients, you would
treat a lot fewer people.
to
th
to
cr
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 tors who
the Con-
s a long-
0
)r, what
ided we
if in the
ompart-
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do an
imited
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of the
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would
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35
Since we have all these people with all these clearances, it seems
to me one thing we could do is to bring them to the people doing
the test, line them up at the door, have them come in and take the
test. By simply changing the parameters of your test, I could in-
crease your productivity fivefold or tenfold very easily.
Senator GLENN. Will you yield?
Senator GRAMM. I will be happy to yield.
Senator GLENN. Have you taken the test at NSA?
Mr. SNIDER. I haven't taken it personally. '
Senator GLENN. I had some friends at CIA and I think it takes
the better part of a half day to go through it. That is my impres-
sion anyway.
Senator WILSON. That is the lifestyle exam.
Senator GRAMM. I think that is a different kind of test than what
we are talking about here.
Was Walker ever given a polygraph test?
Mr. SNIDER. Not to my knowledge.
Senator GRAMM. Am I correct or not from my knowledge of coun-
terintelligence work in asserting that the Soviets direct their
people not to put themselves in a position where they wouldbe'
given a test or might be given a test?
Mr. SNIDER. We have heard that from several defectors, in fact.
Senator GRAMM. It seems to me that one of the strengths of the
approach that we have taken in this bill is that, No. 1, by reducing
the number of top secret clearances substantially,. setting up an ex-
pectation that at some point during your career, and, quite frankly,
I think Senator Cohen's proposal that at least you face an exit test,
even though you might not be tested for 15 years, again one of the
things we are trying to do is to get some deterrent out there.
In the situation of Walker we are not going to ask him, are you a
good American, do you love the flag kind of stuff, do you like. base-
ball, peanuts,, and hot dogs. He passed that test.
The main truth is that in all probability he would have failed the
simple question, "Are you a spy for the Soviet Union?"
He might well, had' he known 15 years ago that he might be
given this test at any point during his career or had he known the
probability he would have been given it was five out of a hundred,
he might well have not accepted the, offer or sought out the offer to
engage in spying against the Nation.
Just concluding, Mr. Chairman, No. 1, I reject the idea that an
operator can only give 250 tests.
No. 2, I reject the' idea that we can't come up with a more effi-
cient training program. I cannot .believe that if we can train brain
surgeons more rapidly than this, that we cannot train people to
give these tests.
I can't believe that if brain surgeons can do 500 operations a
year, that we can only do 250 tests.
I would be willing to wager you I could take your best instructor,
put him on television, set up 50 classes, give those classes to compe-
tent persons and increase the number of people turned out to pass
your competency tests by a twentyfold margin.
It seems to me it is the kind of approach we had at the beginning
of World War II. Had we done an interview before the Japanese
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9
36
bombed Pearl Harbor, hell, we lost the war. The truth was when
we had to do it, we did it.
The final point I would like to make is that this bill specifically
recognizes that we are not going to use the test as the only vehicle.
It may well be, quite frankly, the problem is big enough that we
can't have everybody have a Cadillac operator. We may have to
produce a Chevrolet. Only in the case when we have problems with
the Chevrolet do we bump somebody up to the Cadillac operator.
I think we have a real problem. I go back to my conclusion to the
point that we are just at the tip of the iceberg in this new technolo-
gy that we have invested billions of dollars in, coming on the pro-
duction line.
If the Soviets can buy it for millions of dollars, then we are going
to lose a tremendous investment that we have made and what that
means is that you people are going to have to do a lot better job.
All I want to do is give you the tool.
Thank you, Mr. Chairman.
Senator WrrsoN. Thank you very much, Senator Gramm.
Senator Denton.
Senator DENTON. Thank you, Mr. Chairman.
Gentlemen, it is my tendency in matters of detail that involve a
couple hundred years of practice, to let the Department of Defense
or the U.S. Navy, or whomever, work out the details of a general
directive such as we say. I am sure that you will agree with us that
there is too much classification.
If it were my prerogative, I would say, OK, guys, I want you to
work out the classification problem. Over the next year show me,
or suggest to me, a percentage of improvement that you can
achieve in the various test scores, taking into account the number
of people cleared.
I would say you take our directive, and reduce the numbers of
people cleared, because that is entirely within your prerogative,
not ours.
Like Senator Gramm said, I would like to provide you with the
tools to do the job. But I don't want to provide you with tools that
don't work, because I think that you guys know how to do your
business better than we do, just as we know how to do ours better
than you can tell us how to do it.
I want you to tell us whether or not you agree with what I have
said when I finish.
I agree that there is overclassification and I understand the
Members' amazement about it. I think you have agreed that there
is overclassification, too. There are too many people cleared, I
agree with that.
I do believe that there is an. amount of emphasis which would
have a desirable effect on the problem, which is why the chairman
has called this meeting. I admire this chairman, not only, for con-
ducting this hearing, but also for his rationalizations, and votes,
and speeches on the floor.
Senator WU.. ON. I will extend your time. Thank you, Senator.
Senator DENTON. I would rank them this way. With the observa-
tion we have had very few spies in the commissioned services of
the U.S. Armed Forces. I am not positive, but this is the first time
that
spy.
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 Declassified and Approved For Release 2011/11/14: CIA-RDP89B00297R000300710002-4
fically
ehicle.
iat we
ave to
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bserva-
ices of
st time
that I can remember in the U.S. Navy, in my lifetime, a convicted
Spy.
So, having said that, I would think that this man would have
been deterred had we had a death penalty for his offense, which we
are all in agreement should take place. I think that should be the
number one objective, to take care of the odd freak who comes
along who may either be persuaded, or persuade himself, to become
a spy.
I hope we do find a way to do that. The only question I have is do
we really want to have a mandatory death penalty for espionage if
the espionage results in no major harm to U.S. security?
I think we ought to give some thought to that question. Did the
accused, in his espionage, reveal confidential, top secret, or some
code word information? Did it do severe damage? Or do we say any-
body who does that should be killed?
We want to be sure of what we are doing before we pass that
provision.
I would say the second policy that would have the most effect
would be the polygraph test. The Secretary of the Navy believes,
and I concur, that if we could have unrestricted use of polygraphs,
with provisions to allay the proper concerns of the civil rights com-
munity, it would be an exceptional way to deter espionage. The
polygraph questions could be reserved to such matters as, "Are you
spying? Do you plan to spy?"
In other words, not ask, "Whom did you go out with last night?"
or "Did you cheat on your income taxes last year?" That sort of
thing.
Last, should there not be, while we are looking at this, a look at
least at the Congress and staff of the Congress? To me .I have seen
fantastic leaks from within the administration, from -within the
legislative branch, which, to me, defy imagination. Those are the
people who are supposed to be writing law and interested in keep-
ing it.
There is an example of a man who was accused of trying to sell a
top secret piece of paper to a country, offering it without selling it,
and it turns out in the investigation that he had a top secret clear-
ance, but he never had a background investigation at all.
The case was pretty much hushed up in the Justice Department.
I am not going to offer a name, but that might not be a terribly
isolated situation.
In other words, there are leaks from within the Senate, the
House, ' by Senators, and by Congressmen. Not many, I hope, but
some. Leaks by staffs are reasonably frequent.
Should we not take a look at what we are going to do about that?
There are amenities in the law in which a Senator or Congress-
man can, in pursuit of his duties, which is not an exclusively defin-
itive phrase, give out information which is classified. Congressmen
are not required to be automatically cleared for their job.
Overclassification does exist. The number of people who hold se-
curity clearances should be fixed, but I would rather leave it up to
you as to how to do it, with some kind of congressional.guideline.
You need to suggest to us what is reasonable in the way of reduc-
ing them in terms of numbers.
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On the polygraph, I would suggest to the chairman and our com-
mittee that we think about at least considering no restrictions,
except that the questions be confined to matters that relate to secu-
rity and activities of that person. I also believe that the death pen-
alty certainly be invoked, but again, we want to give some thought
to how many cases and to what kinds of cases.
Lastly, I would like to ask the gentlemen about the leaks with
respect to Congress and the administration. Do you disagree with
what I have said? .
Mr. SNIDER. I don't find anything to disagree with, Senator.
Some will be handled, of course, in different ways.
Senator DENTON. Senator Gramm informs me that the bill does
not disagree with any of that. I thought the bill, however, stipulat-
ed some things for which you have asked 'an alternative approach,
coupled with a little less specific guidance.
Is that incorrect?
Mr. SNIDER. That is correct. We would like to have more discre-
tion in terms of where the polygraph would be used. We want the
authority to use it.
Senator DENTON. Thank you, Mr. Chairman.
Senator WILSON. Thank you very much.
Senator Exon.
Senator ExoN. Mr. Chairman, thank you very much.
I understand Senator Glenn raised the matter of giving poly-
graph tests to Members of the U.S. Senate and their staff. I under-
stand that you agreed with him that this was a sound idea.
Is that right?
Mr. SNIDER. I don't recall his question being posed in terms of
Members.
Senator GLENN. He gave a personal opinion. I did not necessarily
exclude Members.
Senator EXON. Let me tie it down to Members of the U.S. Senate
and our staff. We work very closely together.
What is your opinion on giving Senators and their staff poly-
graph exams Mr. Snider?
Mr. SNIDER. I expressed the opinion, a personal opinion, to Sena-
tor Glenn that I didn't see any reason to distinguish between con-
gressional staffs who had access to the same sensitive information
that we would require a polygraph for.
Senator GLENN. We were talking primarily about staff.
Mr. SNIDER. Again, that is not a departmental or administration
,view as far as I know.
Senator EXON. Let me say, speaking for one Member of the U.S.
Senate, I have no objection whatsoever to taking a polygraph.
I think if it is true that proper intelligent use of polygraph is in
order to try to close leaks. As a Member of the U.S. Senate, and
this committee in particular, I have a lot of top secret information
available to me and I would have no qualms whatsoever about sub-
jecting myself to a polygraph. What is good for the goose it seems
to me is good for the gander.
While it is well to think that the leaks we are concerned with
came from other sources, and I suspect that they do, I believe that
if we as Members of the U.S. Senate are going to suggest that poly-
graphs be used discreetly and intelligently, then we should agree to
also submit
a separate cl
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have the dit
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 Declassified and Approved For Release 2011/11/14: CIA-RDP89B00297R000300710002-4
also submit ourselves to them. In other words, we should not be in
a separate class from anyone else.
I suspect that sometimes some information of a highly secretive
nature may leak out even when we don't intend it to. I worry con-
tinually about the situation of open and closed hearings which we
go through all the time in this committee.
Most of our sessions are closed and we talk quite freely. There
have been times when I felt that something has been said in open
session that should not have been said. But, in any event, I want to
tell you again from the standpoint of one Senator, I would not have
any objection to subject myself or members of my staff to poly-
graph examinations.
I have two quick questions, Mr. Chairman.
There was an article, Mr. Snider, recently in the Washington
Post which stated that many of the security clearance investigators
are considered to be unsophisticated and untrained.
It also stated many of them receive low pay and start out at the
GS-5 level.
In your opinion, how accurate is this criticism?
Mr. SNmE. Let me put it this way. Our investigators all have to
be college graduates. That presumes some level of sophistication.
Beyond that they are all trained, have to go to training school.
They serve in a probationary period. They do start off, as I recall
that article, at the GS-5 level, but within 1 year they are promoted
to GS-7 and next year to GS-9. Their progression is very rapid in
terms of higher rank.
Senator ExoN. So, you don't believe that the comparatively low
salary of $14,000 for a college graduate impedes your ability to
select the right type of people for this program?
Mr. SNmER. No, Senator, I don't. We have, in fact, a waiting list
of people. We can be very selective in terms of whom we hire for
investigators. The ones I have met are very sophisticated, very
bright.
Senator ExoN. I am surprised to hear that, but I take your word
for it. If that is not an impediment, then we don't have to worry
about it.
With regard to reducing the number of security clearances is it
your opinion that it would be better to do an across-the-board re-
duction of all categories of individuals or is it better to concentrate
on certain groups, say contractors, lower ranks, lower pay rates,
and so on?
Mr. SNmER. I think I would answer the question by saying prob-
ably some of both would be in order. We may want to use some of
our examiners to polygraph particular groups who have access to,
highly sensitive information, to polygraph everyone in that group.
On the other hand, we may want to take some of our resources
and say that everyone with top secret clearance or secret clearance
in fact could be subject to a polygraph during their careers. We
may want to use the limited examiners we have, to conduct such
Polygraphs on a random basis, so that we would get deterrence
within a larger population.
This is the reason I was recommending in our statement that we
h
ave the discretion to decide these kinds of questions ourselves.
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40
I think it is a mistake to try to write a statute that sets out how
we are going to do the polygraph because I think there is a lot of
judgment to be applied to it, given our limited resources.
Senator ExON. In your experience are leaks as serious a problem
as espionage?
How serious are unintentional and undesigned exposure of infor-
mation such as someone with top secret clearance telling some-
thing to the spouse or to a father or son or brother or sister?
Mr. SNIDER. I am sure that happens quite frequently. Telling
your wife or husband something you were not supposed to say. I
am sure anyone who has worked in the classified area over a long
period of time has had that experience.
How much of a problem is it? I don't think in general that it is
much of a problem. Generally the information doesn't go beyond
the wife or relative.
Senator EXON. In other words, if you tell your wife, she might
not recognize it as such or doesn't think it is that important?
Mr. SNIDER. I am not suggesting we condone it, but we recognize
it happens.
Senator ExoN. Thank you. That answers my question.
Thank you, Mr. Chairman.
Senator WILSON. Senator Glenn.
Senator GLENN. Just a brief comment and a question on another
matter here.
As far as Senator Gramm's comment on training of operators, I.
am sorry he left, but I think we have this 3,500 test now. We may
be strapped a bit on operators now to expand this thing tremen-
dously.
I think what Senator Exon just mentioned and asked you about
the GS rating, and so on, if this were a real career path and people
saw this as a service that was going to be required through the
years, they would train for that like they train for court reporter,
or whatever.
It is a career track and people are proud to get into it and proud
to serve. They expect to be promoted in time and it is not some-
thing that is fly-by-night and we have a polygraph now and not
later. It is. not an attractive thing to go into right now.
If it were a career path and required on a large scale, I have no.
doubt the trained people would be there. We could take care of
that without any problem. I. don't agree with his fears about being
unable to train this whole group of people we need.
Senator Gramm asked whether the Soviets told their people to
avoid situations where they could be polygraphed. I believe you an-
swered yes.
Mr. SNIDER. We have had several instances where we know that
to be a fact.
Senator GLENN. Christoper Boyce, on the other side of this, who
was convicted for espionage on behalf of the Soviets, told the Per-
manent Subcommittee on Investigations over in the Governmental
Affairs Committee of which I am a member, that the Soviets tried
to get him to apply for employment at CIA or State. Boyce refused
because, just as you say, he was afraid he could not pass the poly-
graph, but the Soviets told him not to worry because, "We can
train you to beat them."
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to win
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 Declassified and Approved For Release 2011/11/14: CIA-RDP89B00297R000300710002-4
out how
a lot of
problem
of infor-
g some-
Telling
oo say. I
r a long
hat it is
beyond
e might
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nmental
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he poly-
We can
Is that possible and if we put this into effect here, are we going
to windup with training courses on how to beat your friendly poly-
graph advertised in the Washington Post?
Can you train a person to beat a polygraph?
Mr. SNIDER. I will ask Jack to answer that.
Mr. DONNELLY. They have said that to a number.
Senator GLENN. You mean they told Boyce that?
Mr. DONNELLY. Boyce said they told him they would train him to
beat the polygraph, but they didn't give him that training. We
have heard them make similar remarks to a number of other
people in our counterintelligence operations.
So far they have never given that training to anyone. So, we are
not sure they can do it. We are alert to it and we are trying to find
out if they do do it.
Senator GLENN. Let me turn this around a moment and you may
not want to answer this question.-If you don't, say so.
Do we train our people to beat other people's polygraph tests?
Mr. DONNELLY. No, we do not.
Senator GLENN. In other words, we know of no way you can train
a person to beat a polygraph; is that correct?
Mr. DONNELLY. To the best of my knowledge, that is correct, not
in the United States.
Behind the curtain, in Czechoslovakia there is One written about
in the newspapers and magazine articles, for that purpose. There is
some doubt as to the viability of that training, whether it really
works.
Mr. SNIDER. There may be things we don't know about that other
agencies do so I am somewhat leery of giving you an absolute, "We
don't do it."
Senator GLENN. I understand. What you don't feel comfortable
with, I want you to say so. We may ask some other folks on that.
Thank you, Mr. Chairman.
Senator WILSON. Thank you very much, gentlemen.
We do have a second witness. We will excuse you with thanks.
We may wish to contact you further.
Mr. SNIDER. Thank you, Senator. It is our pleasure.
Senator WILSON. Thank you very much for your contribution.
Our next witness is Hon. Chapman B. Cox, General Counsel of
the Department of Defense.
Welcome, sir. Sorry that we have taken your afternoon.
STATEMENT OF HON. CHAPMAN B. COX, GENERAL COUNSEL,
DEPARTMENT OF DEFENSE
Mr. Cox. That is all right. It is for a good cause, sir.
Good afternoon, gentlemen. It is a pleasure to be with you, Mr.
Chairman.
With your permission, I would like to first submit my formal
statement for the record.
Senator WILSON. We will enter your statement into the record in
its entirety.
Mr. Cox. Before proceeding with your questions, I would like,
with your permission, to briefly summarize the Department's posi-
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42
tion with respect to proposed changes to the Uniform Code of Mili-
tary Justice relating to espionage offenses.
First, a brief word about the current law.
The Uniform Code does not currently contain an offense for
peacetime espionage. There are wartime espionage offenses in the
code and there are lesser peacetime offenses related to espionage;
for example, unauthorized disclosure of classified information. But
there is no peacetime espionage offense.
Certainly we would prefer to have a peacetime espionage offense
in the Uniform Code and would have preferred to for some time.
Having the option of prosecuting military offenders in a military
court provides important advantages to protect the Government's
interest and enhances the administration of justice.
These include flexibility in choosing the appropriate forum for
trial, the opportunity to give greater protection to sensitive infor-
mation used as evidence, inclusion of lesser included offenses under
the Uniform Code which might not be offenses under the civilian
criminal statute, and finally, an adequate range of punishments
commensurate with the seriousness of the crime.
With all these advantages to having a military peacetime espio-
nage offense, why haven't we pressed for such a provision in the
past?
Well, traditionally, although we would have preferred to have a
peacetime espionage military offense, we believed that the interests
of the Government and of criminal justice were adequately served
by relying on civil authorities to prosecute peacetime espionage
committed by service personnel.
However, recent developments have caused us to reevaluate our
position in this regard. These developments are:
First, in recent years many have become concerned about the
death penalty provisions of the civilian espionage statute and
whether or not they were constitutionally valid. This growing con-
cern was confirmed in 1984 by the Ninth Circuit Supreme Court in
its decision in the Harper case when it struck down the death pen-
alty in the civilian statute.
A second recent development is that we have had growing con-
cern about the sensitivity of evidence in these kinds of cases and
our ability to protect that sensitive evidence from disclosure.
A third development is a general desire with respect to the total
criminal system that we would have increased integrated deterrent
effect in this area of espionage. In other words, that we could com-
bine the different incentives and disincentives of both the military
and civilian criminal statutes to their maximum advantage.
Finally, over the past, say, 5 to 10 years, there has been an in-
creased frequency of espionage cases where the disparity of punish-
ment between that would be available under the military code and
what would be available under the civil code for the same offense
has been a significant factor.
So, ~ with all of these increased concerns, we do believe that we
need to improve the law.
Now, the question is how can we improve the current law?
First, we believe that we can correct the disparity between the
military and the civilian codes by adding an espionage offense to
the Uniform Code of Military Justice which is similar to the civil-
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ian-espiohage offense and it should not be limited either to war-
time or to peacetime.
It should be an espionage offense just like the civilian offense
that is equally applicable under any condition.,
Second, we believe that we should provide constitutionally valid
capital punishment for espionage in both the military and the civil-
ian code.
What are we doing about this?
We have developed proposed legislation to accomplish both of
these objectives which is currently being coordinated in the execu-
tive branch. It would add a new Article 106a to the Uniform Code
which mirrors the civilian Federal espionage statute.
It also provides the death penalty under a constitutionally valid
sentencing procedure.
We also strongly support section 5 of the Gramm bill, subject to
three minor changes which are noted in my formal statement and
to one more significant change which we would urge.
We would prefer that the mandatory sentencing provisions of the
Gramm bill be deleted in order to give the Government more flexi-
bility in protecting its interests in these complex and sensitive
cases and in order to insulate court members from focusing on the
sentencing consequences when determining guilt.
This concludes a summary of my statement, sir.
I will be pleased to respond to your questions.
[The prepared statement of Mr. Cox follows:]
PREPARED STATEMENT OF CHAPMAN B. Cox, GENERAL COUNSEL, DEPARTMENT OF
DEFENSE
Mr. Chairman and Members of the subcommittee: I appreciate the oppportunity to
appear before you today to discuss the prosecution of espionage related-offenses
under the Uniform Code of Military Justice (UCMJ). The Department of Defense is
grateful for the efforts of the Subcommittee in calling attention to this important
subject, and for your continuing interest in the military justice system.
I would like to begin by discussing the current statutory basis for prosecution of
these offenses. Then I will describe some related problems which we identified and
outline the approach we used to develop proposed solutions. Finally, I will comment
on current legislative proposals, including the UCMJ amendment contained in S.
1301.
CURRENT LAW
Several articles of the UCMJ provide the primary grounds for prosecuting armed
services personnel for espionage and related offenses. These provisions remained
largely unchanged since enactment of the UCMJ in 1950.
Article 106, which is applicable "in time of war," proscribes the offense of "lurk-
ing as a spy or acting as a spy." The mandatory punishment for this offense is
death. This is the only article of the UCMJ that carries a mandatory penalty.
Article 104 covers `aiding the enemy". This includes the offenses of "giving intel-
ligence to the enemy" and "communicating with the enemy." The UCMJ permits
the death penalty for these offenses.
Article 134, "the general article," permits incorporation of non-capital civilian of-
fenses in the UCMJ. Under this provision, we may prosecute offenses such as 18
U.S.C. 793 ("Gathering, transmitting, or losing defense information") and 18 U.S.C.
? 798 ('disclosure of classified information"), each of which carries a maximum
period of confinement of ten years. However, we can not prosecute the offense of
espionage (18 U.S.C. ? 794) under the general article because it is a capital offense.
Article 92 governs failure to obey orders or regulations and dereliction in the per-
formance of duties. There are numerous rules covering access, handling, and dis
Posi-
tion of classified information; other rules restrict contacts between service members
and foreign governments. The maximum punishment for violation of these rules is
dishonorable discharge, confinement for two years, and total forfeitures.
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44
Be" most espionage-related
ian law and the UCMJ service offenses constitute crimes under both federal civil-
ed by ,ment of rosecut
Understanding between the two Departments that requires consul-
investigation and on the choice of forum. We have had excel-
lent relations with the excel-
Department of Justice on these matters.
THE NEED FOR AN AMENDMENT TO THE UCMJ
rTyhe Department of Defense has established the Joint Service Committee on Mili-
t ode o tire, which responsible for recommending changes in both the Uniform Milita
for C
ourts- the Joint Service Commits tooeconsiderl the need fort mi ndments to the military
laws related to es This Spring, we asked
problem areas we idionentified in current sew wit it r spe ttee's task was based on two
The first is disparity between military ect to espionage offenses.
ment for peacetime espionage. Thero and civilian thlaw with e UCMJ respect ex expressly ad-
dresses peacetime espionage. The two articles of the UCMJ that address espionage-
relrapteeadesoffenses are wartime offenses. Article 106 applies only "i n time of war."
purl d of military law, "time of war" means a war declared
For
by determination by the President that a "time of war" exists ueotot hesexitence
of hostilities. Similarly, aiding the enemy under Article 104 applies only when an
enemy can be identified based upon the existence of a declared war or other hostil-
ities.
As noted above, the federal civilian offense of espionage cannot be incorporated in
the UCMJ through the general article (Article 134), because it is a capital offense.
Therefore, peacetime prosecution of espionage related offenses under the UCMJ is
limited to lesser non-capital offenses which can be incorporated under the general
article, such as transmitting defense information, or disclosure of classified informa-
tion. However, these lesser offenses carry a maximum punishment of ten years con-
finement, while the federal civilian offense of peacetime espionage carries a maxi-
mum punishment of life imprisonment.
It is our Prisonment.
position that any legislation in this area should be
mating the disparity between the 10 year maximum period of confinement available
under military law and the opportunity to obtain a sentence to life imprisonment
under federal civilian law.
We have also considered the issue of capital punishment for Pruaonment
The Ninth Circuit, in United States v. Ha peacetime . 1994) held
that the procedures for imposing the death ss 729 uF.2d 1216 nder 18 (9th . ? 794 did eld
meet the constitutional requirements established by the Supreme Court for capital
cases. The Senate, in the last Congress penalty procedures for section 794, bthe House lot a to ablis
to a valid death
The Administration has again requested approval of is not act prior toe recommend autho actedthat
part of the UCMJg the death penalty for similar imilar espionage Wamass be en
The second problem we have identified relates to the maximum unihment for
wartime offenses. The offenses of s p
under Article 104 both pig under Article 106 and aiding the enemy
ulm
enemy or was
Proof that the information was provided to the
enem uo was g ered .with the intent of aiding the enemy. These-statutes do not
wartime where it transmission of defense information to a foreign government in
snot be proved that the information was provided to the enemy
or was gathered for the purpose of ai
unishment that could be obtained in such ache enemy. c rpoult, the maximum
793 would be ten years confinement. case through ih ncorporation of 18 U:S.C.
This is in contrast to federal civilian law in 18 U.S.C. ? 794 which proscribes Bath=
Bring or delivering defense information to a foreign govereent with intent or
reason to believe that it is to be used to the injury of the United States or to the
advantage of a foreign nation...."
rated into the milita ryry justice system tthinugh this capital offense cannot be incorpo
rate article of the UCMJ to eliminate the dis Article 134, there is a need for a sepa-
period of confinement available under mili lawPanty o sho ndtween the maximu 1u year maximum
onment under federal cisvilian a alsm of e imps
_
the death penalty, law. Such a statute also should permit imppoosition of
o
PROPOSED LEGISLATION
As mentioned Previothe Joint us
Pce s me amendmant ent t to U
to correctieCmmittee was tasked with drafting a
problems we had identified in the es-
h4
oil
E
fo
tt
sF
oi.
ac
rP
tat
to
ml
in
ycI
ye
tii l
th
in
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oth federal civil-
nay be prosecut-
ense. There is a
requires consul-
have had excel-
amittee on Mili-
ith the Uniform
Ipring, we asked
to the military
is based on two
offenses.
spect to punish-
at expressly ad-
dress espionage-
me of war." For
>ngress or a fac-
to the existence
s only when an
or other hostil-
incorporated in
capital offense.
er the UCMJ is
der the general
issified informa-
~f ten years con-
carries a maxi-
sd toward elimi-
ement available
e imprisonment
time espionage.
Cir. 1984) held
? 794 did not
ourt for capital
lish valid death
so adjournment.
We recommend
offenses be en-
punishment for
ling the enemy
irovided to the
statutes do not
government in
d to the enemy
the maximum
ion of 18 U.S.C.
?roscribes gath-
with intent or
states or to the
not be incorpo-
ieed for a sepa-
year maximum
n of life impris-
it imposition of
with drafting a
tified in the es-
pionage statutes. When recent events underscored these problems, we directed the
Joint Service Committee to give priority attention to this matter. Our draft legisla-
tive proposal, which we are coordinating within the Executive Branch, is a result of
the efforts of the Joint Service Committee. The proposed legislation mirrors the pro-
visions of the federal civilian espionage statutes (18 U.S.C. ? 794) in a new Article
106a.
Section 5 of S. 1301 would also create a new Article 106a in the UCMJ, which
would proscribe communication, delivery, or transmission of defense information to
a foreign government or to other specified foreign entities "with intent or reason to
believe that it is to be used to the injury of the United States or to the advantage of
a foreign nation." This amendment generally is patterned after 18 U.S.C. ? 794, with
several differences. The Department of Defense strongly supports the objectives and
general provisions of this portion of S. 1301, subject to the following recommenda-
tions:
The phrase "in time of peace" should be deleted from the title. As noted above,
there is a need for an espionage statute in time of war to supplement the present
Articles on spying and aiding the enemy to address situations in which information
is provided to a nation that is not legally an "enemy" engaged in hostilities with the
United States.
The phrase "at any time" should be deleted. All offenses under the UCMJ apply
in both peacetime or war unless expressly limited.
The phrase "shall be punished by death or by imprisonment for any term of years
or for life" does not reflect the terminology used in the UCMJ. We recommend:
"shall be punished by death or by such other punishment as a court-martial may
direct," the phrasing that is used elsewhere in the UCMJ.
S. 1301 provides for death or mandatory life imprisonment in the event that the
information is provided to the Government of the Soviet Union or another commu-
nist country. We agree that the transmission of information to these nations would
constitute a very serious offense. However, we recommend against the mandatory
life imprisonment provision for two reasons.
First, there is the issue of damage limitation. Frequently, in an espionage situa-
tion, an investigation may reveal only the tip of the iceberg. There is a need to
assess damage, and to probe deeper for other offenders. With a mandatory life im-
prisonment provision, the government is limited in its ability to obtain information
from the accused. I wish to emphasize that this does not mean that the government
would not take seriously the need for strong punishment in such cases; but we
should not create rules that so rigidly limit the government's flexibility.
Second, a mandatory life sentence provision paradoxically would reduce the likeli-
hood of obtaining convictions in some cases by causing the court members to focus
on sentence, rather than on the issue of guilt, during the findings stage of the trial.
Experience in both civilian and military trials has demonstrated that when the jury
focuses on the sentencing consequences of a mandatory punishment rather than on
the issue of guilt or innocence, there is an increased likelihood of an acquittal de-
spite evidence sufficient to support a conviction. Although all these cases are seri-
ous, some are less serious than others; and it would be most unfortunate to have
acquittals in the less serious cases-which are still detrimental to our national secu-
rity-because of a mandatory life sentence provision.
The creation of a new espionage offense in the UCMJ would represent an impor-
tant addition to military law. We are grateful to the efforts of this Subcommittee in
taking the lead on this vital issue.
With respect to the amendments to the Federal Criminal Code contained in S.
1301, we defer to the Department of Justice. We have been advised that the Depart-
ment of Justice intends to comment on the Title 18 amendments proposed in S. 1301
in a report to this Committee.
Mr. Chairman, this concludes my prepared statement. I would be pleased to re-
spond to your questions.
Senator WILSON. Thank you very much, Mr. Cox.
We appreciate your written statement and the clarity with which
you have summarized it.
Mr. Cox, the Uniform Code of Military Justice was enacted 35
years ago last month. It has never contained the so-called peace-
time espionage article. To my knowledge, during the 35-year period
the Department has not proposed that such an article be included
in the UCMJ. The Department now supports the addition of an ar-
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ticle proscribing such conduct and providing a death sentence for
it.
A couple of questions.
First, I gather from your testimony that you feel there has been
a need, not a change in circumstances, which now dictates that an
article be included.
Mr. Cox. There has been a growing discrepancy between civilian
and military code provisions on espionage over the years. Those
concerns have blossomed as a result of recent events that have
emerged.
We had, for example, our Joint Service Committee that deals
with recommending changes to the Uniform Code already working
on this issue when the Walker cases occurred. So, it is not just the
Walker cases.
The Harper case was decided in 1984. It confirmed that the cap-
ital punishment in the civilian code was unconstitutional, at least
the way the penalty was imposed under that specific provision.
There was concern prior to 1984, in fact public testimony by the
Justice Department that this might not be a constitutionally valid
provision. So, these concerns have grown over the years.
Since 1975, I think, we have had something like five trials under
civilian statutes where life, imprisonment was imposed.
Now, if the conditions under which those offenses occured would
have been better tried in military courts, we would not have been
able to try them under the UCMJ and obtain life imprisonment
even, let alone the death penalty, because we would have had a 10-
year maximum punishment, as explained in my formal statement.
So, these kinds of developments have been occurring to the point
where, as I mentioned, we believe we need to bring the military
code into parity, if you will, with the civilian code to maximize our
ability to deal with these offenses and to promote the ends of jus-
tice as well as protecting the interest of the Government.
Senator WILSON. Would it be a fair statement that in that 35-
year period there did not appear to the armed services to be a seri-
ous peacetime espionage problem in terms of espionage committed
by members of the armed services, while at the same time there
appeared to be a judicial anathema to the death penalty through-
out the country in terms of civilian cases and for that reason noth-
ing happened?
Mr. Cox. I would agree with Senator Denton that there have not
been very many military espionage problems. But even one is too
many.
It is incumbent upon us to have a code which permits us to deal
with those problems when they arise. In the past, as I mentioned,
we have taken the position that the interests of the Government
and the administration of justice were adequately served by pros-
ecution by civilian authorities.
But all these other events over the last 10 years have caused us
to reevaluate that.
Senator WILSON. I think in the interest of time we should stipu-
late that one case of espionage is too many and the problem cer-
tainly exists and some problems have manifested themselves.
Let us talk about your concern with respect to the mandatory
nature of the death penalty prescribed by S. 1301. In your state-
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ment you
death or I
You ins
Governni
You also;
because c
during th
Of then
the more
a general
they wou.
interestii
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gain evii3
crime.
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superior@
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with yot
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crimina1+
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to their
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ecute"-
you say
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Senat(
ditional
relative
United
by capit
I Will,
Mr. C
Senat
Senat
Senat
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ment you mentioned two possible drawbacks to the mandatory
death or life imprisonment provision contained in article 6(a).
You indicated that these provisions might limit the ability of
Government to bargain with an accused and thereby limit damage.
You also expressed concern that some prosecutions might be lost
because court members would focus on the mandatory punishment
during the phase of the trial concerning guilt or innocence.
Of the two concerns you raise, I think that the former is perhaps
the more significant. I would think that since we are talking about
a general courts martial where the jury are military personnel,
they would be less likely to focus on the sentence, but you raise an
interesting point at the very least.
My concern is that you may not have the same kind of flexibility
that civilian prosecutors do in terms of the plea bargain they
engage in in order to secure, for example, in organized crime cases,
the testimony of someone who is really an underling in order to
gain evidence against those who are really directing a corporate
crime.
In this sense, to draw the parallel, do you think you would lose
the flexibility that might otherwise prompt the accused to become
a witness or at least furnish information that would implicate his
superiors?
Mr. Cox. Yes, that is a good summary of the concern. I agree
with you, of the two concerns raised in my statement, the first is
certainly the most serious.
In these kinds of cases you frequently get involved in a very diffi-
cult balancing function where you are balancing the interests of
criminal justice, on the one hand, against the interests of our na-
tional security.
The prosecutors and representatives of the Government in that
case are faced with a very difficult dilemma in trying to assess the
damage that the offense has caused to the national security while
at the same time trying to prosecute a suspected offender.
If the criminal statute imposes upon them certain disincentives
to their bargaining with the offender to get information from him,
it makes that balancing all the more difficult and creates a certain
inflexibility which either damages the national interest, on the one
hand-where you say, "in the interest of the criminal justice we
have to forego our right to get information and go ahead and pros-
ecute"-or, on the other hand, in the interest of national security
you say "forego the prosecution."
Any inflexibility in that increases the difficulty of the very deli-
cate balancing that prosecuters have to do.
Senator WILSON. Thank you. My time has expired. I will have ad-
ditional questions on the proposed article 106(a) and also questions
relative to the procedure prescribed to cure the defects cited in
United States v. Manson with regard to procedural problems raised
by capital punishment.
I will submit those for the record.
Mr. Cox. We will be happy to answer them for the record, sir.
Senator WirsoN. Thank you.
Senator Glenn.
Senator GLENN. Thank you, Mr. Chairman.
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48
I have been a bit concerned about the breadth' of this thing. I
guess the wording could be considered imprecise.
be interpreted very, very broadly. Perhaps it could
For instance, and I won't read the entire section on
print of the bill, it basically says any Person who delivers, 3 m the
nicates or transmits to any forei Governmen , comu-
information relating to thnational defense, ortinformationerelat-
ing to the national defense, shall be tried and shall be punished by
death, and so on. ry,
shall be term, a"Or information relating to the national punished by death- The
broad. defense,' is very
Don't you think our people would probably like to have a phone
directory of the Soviet Defense Ministry and vice versa?
It is related to the national defense.
Mr. Cox. Yes, you have to read the rest of the language of the
statute. It talks about for the purpose of harming our interests or
aiding their interests.
The broader answer to your question is that that language is the
same language of the Federal civilian espionage statute. One of the
reasons that we are promoting that language is there is a body of
case law that goes with the interpretation of that language.
There are cases, for example, that stand for the very clear propo-
sition both that the information must be nonpublic in nature and
that it must be provided either to advantage a foreign. country or
with an intent to injure the United States.
Senator GLENN. The phone book wouldn't qualify?
Mr. Cox. No, because it is public information. It has to be non-
public information and has to be provided with the requisite intent.
Senator GLENN. In amending the Uniform Code, UCMJ, this bill
would create a criminal espionage offense punishable by death or
life imprisonment "which shall be tried by a General Court Mar-
tial."
Does that language prevent the Justice Depart ment from pros-
ecuting a member of the armed services under the criminal espio-
nage statute in title 18?
Mr. Cox. No, sir. Our Memorandum of Understanding with the
Justice Department would not be affected by the statute. That
means that it shall be tried by a general court-martial as opposed
to a special or summary court.
It would not impact on our Memorandum of Understanding with
Justice under which we in all of these sensitive cases coordinate
with them and determine whether the forum to better try the case
is a civilian Federal court or military court.
Senator GLENN. Has this been discussed with Justice?
Mr. Cox. Yes.
Senator GLENN. I believe they indicated unofficially they opposed
this section because they were afraid it would remove that option
for future prosecutions?
Mr. Cox. It is my understanding from our discussions that if we
interpret it in that way and the report language indicates that,
that they have no problem with it. It may be better to take it out.
we
ent
Memo
Set
Ser;
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nation.
tenting
would
for the
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We will be happy to work with you on making sure it is consist-
ent with other code language which doesn't impact upon our
Memorandum of Understanding.
Senator GLENN. Thank you, Mr. Chairman.
Senator WILSON. Thank you, Senator Glenn.
Senator Exon.
Senator ExON. I have a couple of short questions.
Mr. Cox, can you briefly explain to me in layman's language
what punishment the law now provides for withholding knowledge
ofaspy?
For example, didn't Mrs. Walker know that her husband was a
spy? assume that the statutes apply which would prevent her from
testifying against her spouse. Is that correct?
While you are answering that question, please expand upon it. If
an individual has firsthand knowledge that someone is a spy, what
obligation does that individual have under the law to report it, if
an
Mr. Cox. That is a very difficult question, sir. I cannot give you a
reasoned answer off the top of my head. There are certain laws
with respect to knowledge of serious felonies-of which espionage
is one-that place an obligation upon the person who has the
knowledge to come forward.
There are also certain privileges of certain people who have this
knowledge to the effect that they are not encumbered with such ob-
ligation; for example, a lawyer who learns it in confidential com-
munications.
Senator ExON. A lawyer?
Senator WILSON. I detect a bias.
Mr. Cox. Sometimes spouses also have privilege against having
to reveal the information. I am telling you off the top of my head.
It is difficult to make these distinctions for you.
With respect to the spy, himself, I think the formulation I gave
Senator Glenn is about as clear and concise in a short phrase as I
could give it. That is that the spy must provide the information
which is nonpublic in nature with the intent or the knowledge that
it would give advantage to the foreign country or with the intent
or knowledge that it would injure the United States.
Senator ExON. I assume you have studied the Gramm bill from a
legal standpoint, haven't you?
Mr. Cox. Yes.
Senator EXON. Is it true that the Gramm bill specifically address-
es only espionage on behalf of a Communist nation? If it became
law, would the penalty provided therein apply only to a Commu-
nist nation?
If that is so, it seems to me that the spying for a non-Communist
nation is just as serious a threat to our national security as spying
for a Communist nation.
Could you tell us the difference?
Mr. Cox. The answer is no, it doesn't just apply to a Communist
nation. It applies to any foreign government. The mandatory sen-
tencing only applies to a Communist country. That provision we
would recommend be deleted, the mandatory sentencing provision,
for the reasons I stated to Senator Wilson.
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50
Senator ExoN. One last question.
Does the Department of Defense have an opinion on another in this area that I understand has been introduced or is going t bbe
introduced which would mandate u gong to e
death penalty, but that the death upon conviction not lev
Has the Department of penalty be shown on y the
t
do you think of it? Provision?W W Defense looked at that evhahat
Mr. Cox.
We have the same opinion on that, which is consistent
with our earlier expression, that we would recommend
mandatory death sentence.
Senator EXON. That is also your view on showing against
of the sentence on television? the carrying-
out Mr. Cox. Yes, sir.
Senator ExoN. Thank you, Mr. Chairman:
Senator WILSON. Thank you, Senator Exon.
The Chair is pleased to welcome and recognize
our colleague, not
a member of the subcommittee, but a member of the full
tee on Armed Services, Senator' Levin.
Senator LEVIN. Thank you, Mr hairman. Commit-
On the mandatory death penalty issue I have a number of
tions. You have indicated that the Defense Department is o
ques-
to the mandatory ques-
death penalty. pposed
As I understand it, this bill would provide for eith a mandatory
life or mandatory death penalty. er
I presume that is the heart of this
bill. There are two options, if I understood the circumstances,
either a mandatory life sentence or a mandatory
You are opposed to Providing only those two otions? penalty.
Mr. Cox. Yes, sir.
Senator LEVIN. You are opposed to the heart of the bill as far as
I am concerned. You would like to see an optional death Penalt
and an optional life imprisonment?
Mr. Cox. We would like to have a maximum y
and anything UP to that. Penalty of death
Senator LEVIN. Being optional?
Mr. Cox. Yes.
Senator LEVIN. If there is going to be a death
you don't accept that position-if there were oin penalty-I know
tory death penalty, would you su g g to be a manda-
ation where the espion ppOrt its being limited to the situ-
Mr. Cox. I think that is dangerous becau e y ucget into
of situations of trying to figure y o get into all kind
No. 1. out who our real adversaries are,
No. 2, even if you assume that our real adversaries are Comm u
nist, there might be problems of proof during a trial as to whether
or not there was information as a indirect link between the nation who got the
and the
So, the bill
would haverto be cleaned Communist or not.
those ambiguities if we do kee P to make sure we clarify
Otherwise it might be an unconstitutional dthe o al Provision; I don't nists. Senator LEVIN. We also have adversaries who are non- know.
Commu-
Mr. Cox. Yes, sir.
Senate
ry death
non-Coln
Mr. Co
Senate'
well as t'
Mr. Ce
Senate
Criminal!.
Mr. Cc
Departm,
bill. Thai
adequate
Senato'
which pa
Mr. Co
is in tota'
Senato,
Mr. Co'
Senato:
Departm,
title 18;
bill?
Mr. Co:'
lar in the
Gramm's
I think
Senator I
Port the _
Senator
am talkie
the Thur.
favor, by
Mr. Co,
Senator
procedure!
.or not beE
Mr. Co3:
cases in ml
procedure!
late syste,!
Senator,
not be inu
incorporat'
well as yo:
not
I miisle:
mistakes,
are indige
sons'
But ass,
any reason'
extent the'
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Senator LEVIN. Is it a rational distinction that you get mandato-
ry death if the adversary is Communist, but not if the adversary is
non-Communist?
Mr. Cox. I don't believe so.
Senator LEVIN. The bill amends title 18 in the Criminal Code as
well as the Uniform Code of Military Justice?
Mr. Cox. Yes, sir.
Senator LEVIN. Are you prepared to comment on title 18 of the
Criminal Code?
Mr. Cox. I would be happy to take your questions on that. The
Department's position on title 18 is that we support the Thurmond
bill. That is an administration bill. We think the Thurmond bill
adequately covers the title 18 problem.
Senator Wnsox. The Thurmond bill is S. 239, last year's-S. 1765
which passed the Senate.
Mr. Cox. Yes, sir. Our proposal with respect to the Military Code,
is in total concurrence with that approach.
Senator LEVIN. Because of the Executive order?
Mr. Cox. Yes, sir.
Senator LEVIN. Going back to title 18, you are saying that the
Department of Defense opposes this provision in this bill relative to
title 18; you favor a different approach which is the Thurmond
bill?
Mr. Cox. I guess it is not entirely different. I think they are suni-
lar in their purpose and so I wouldn't say that I oppose Senator
Gramm's bill.
I think Senator Gramm is trying to do the very same thing that
Senator Thurmond is trying to do in a different way, but we sup-
port the way Senator Thurmond is trying to accomplish the goal.
Senator LEVIN. I am suggesting we support Senator Gramm; I
am talking about the bill. To the extent his bill is inconsistent with
the Thurmond bill, you would favor the Thurmond bill and not
favor, by definition, the Gramm bill?
Mr. Cox. That is right.
Senator LEVIN. Has the reliance on the Executive order for a
procedure for determining whether someone gets the death penalty
or not been tested in court?
Mr. Cox. It has not been tested yet constitutionally. We have two
cases in which the death penalty has been imposed under the new
procedure and they are now working their way through the appel-
late system.
Senator LEVIN. Is there any reason why those provisions should
not be incorporated, why the Thurmond provisions should not be
incorporated in this bill relative to the Code of Military Justice as
well as your preference for them relative to title 18?
I happen to oppose the death penalty, by the way. I hope I have
not mislead anybody. I oppose it because you can't correct your
mistakes, because we disproportionately impose it on people who
are indigent, who can't afford the best lawyers, and for a lot of rea-
sons.
But assuming we are going to do something like this, is there
any reason why we should not incorporate the protection, to the
extent there is protection in the Thurmond approach, in this bill
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52
rather than relying on the Executive order which is being tested in
court?
Mr. Cox. We believe that the sentencing procedures provided by
the Congress under the Uniform Code of Military Justice are the
Prightresident ones as for the Comm military system. We believe it should be the
ander-in-Chief, who establishes the guidelines
and procedures that meet the needs of the Armed Forces for sen-
tencing in all of the milita
We also believe 'that. the Executive order meets all the constitu-
tional requirements. In fact, if you lay them side by side with the
Thurmond bill, they would be very similar. There would be some
additional ones relating to the military system, but I think they
are very similar.
Senator LEVIN. Didn't the Military Court of Appeals say that the
requirements for invocation of the death penalty could be met by
either Executive order or by the Congress?
That has not been determined? Did the Court of Military Ap-
Peals say that?
Mr. Cox. The Court of Military Appeals said that.
Senator LEVIN. You differ with that judgment?
Mr. Cox. No, sir.
Senator LEVIN. Is there any reason why the Congress can't incor-
porate these provisions?
Mr. Cox. Because we believe it is better for the Presi have
the flexibility to do it. dent to
Senator LEVIN. You don't doubt we can legally do it?
Mr. Cox. You can do it legally either way.
The second reason besides the fact the President is the one that
should do it, is that we now have this procedure in the manual
with respect to all of our capital punishment. If you as a Congress
impose the statutory system on one punitive article
you
doubt that the other procedure is constitutionally valid. create
We would strongly urge you against doing that.
Senator LEVIN. Has the military justice system ever made a mis-
take in finding someone guilty of a capital offense?
Mr. Cox. Not to my knowledge.
Senator LEVIN. Has there. ever been a mistake in the history of
the military criminal justice system?
Mr. Cox. You said capital punishment?
Senator LEVIN. No, I didn't. I said capital offense.
Mr. Cox. I don't know on capital offense. To my knowledge, they
have never made a mistake in
Senator LEVIN. ' Could you find out whthe death
at errors ha et existed in
the military criminal justice system?
It is a lot purer than the civilian justice system if it has never
made a mistake in a capital offense.
Mr. Cox. I will try to find out.
Senator LEVIN. Thank you.
Senator WII?soN. Thank you, Senator Levin.
Mr. Cox, let me say one or two things before we excuse you.
First, I gather from your testimony that the Department is work-
ing on a bill.
Mr. C
tive proc
today foi
The Jc
the sprit
up abou'
20th of J
As art'
Senate
espionag
Mr. Cc
Senatc
Mr. G
statue--'
Senatc
Mr. Cc
Senatc
quired, i
your dra'
Mr. Cc
Senatc 1
expect it
Mr. Cc
we have,
Gramm':'
as soon i
Senatc
The rc
memberf
well as t
[Quest
Senator
United Stu
death pen.
Courts-Mar
make spec,
in what n
remedy the
In Janus]
Courts-Ma, i
martial wF
of capital F
I have a
First, do-'
thority unc
prescribe c
UCMJ, an(
Mr. Cox.
rived from
thority of .
Article 56.
UCMJ. Th,
punishmen
Senator
Manual fo
military al
constitutioli
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rovided by
ce are the
ild be the
guidelines
as for sen-
constitu-
with the
i be some
Fink they
that the
e met by
itary Ap-
n't incor-
Dne that
manual
,ongress
I create
story of
;e, they
sted in
i never
Mr. Cox. Yes, sir. We finished our deliberations and our delibera-
tive process just recently. I forwarded our Department bill to OMB
today for the coordination process.
The Joint Service Committee had started working on this back in
the spring and it was going on a regular schedule which we sped
up about a month ago. I promised the Secretary a report on the
20th of June.
As a result of that, all these things are converging.
Senator WILSON. Your bill deals both with military and civilian
espionage, wartime and peacetime?
Mr. Cox. Only military, sir.
Senator WILSON. Only military?
Mr. Cox. Yes, sir. The administration position on the civilian
statue
Senator WILSON [continuing]. Is in the Thurmond bill?
Mr. Cox. Yes, sir.
Senator WILSON. When you have received such clearance as re-
quired, the committee would obviously have a great interest in
your draft legislation.
Mr. Cox. Yes, sir.
Senator WILSON. Can you give me some idea when we might
expect it?
Mr. Cox. I can't tell you how fast the OBM process will work, but
we have been working with the people on the staff and on Senator
Gramm's staff. I don't think we are far apart. We will get it to you
as soon as we possibly can.
Senator WILSON. We thank you very much, Mr. Cox.
The record will be kept open if there are questions from other
members that they would like to submit to you for the record as
well as to Mr. Snider.
[Questions with answers supplied follow:]
QUESTIONS SUBMITTED BY SENATOR PETE WILSON
Senator WILSON. Mr. Cox, in October 1983, in the Army Courts-Martial case of
United States v. Matthews, the United States Court of Military Appeals ruled the
death penalty procedures then in effect under the UCMJ and the Manual for
Courts-Martial did not satisfy the constitutional requirement that court members
make specific findings of individualized aggravating factors. The court further said,
in what may have been dicta, that either the Congress or the President could
remedy that defect.
In January 1984, the President, through executive order, amended the Manual for
Courts-Martial to provide for new death penalty sentencing procedures by courts-
martial which were designed to satisfy the constitutional requirements for imposing
of capital punishment.
I have a three part question in this regard.
First, does the Department believe that the President has sufficient statutory au-
thority under Article 36 of the Uniform Code that he, through executive order, may
prescribe constitutional procedures for imposition of capital punishment under the
UCMJ, and that statute is not needed in this area?
Mr. Cox. The President's power to prescribe the Manual for Courts-Martial is de-
rived from his constitutional authority as Commander-in-Chief, the rulemaking au-
thority of Article 36, and the authority to establish limitations on punishments in
Article 56. Congress has authorized the death penalty for specified offenses in the
UCMJ. The President's rules meet all applicable standards for imposition of capital
punishment.
Senator WILSON. Second, have the present death penalty procedures in the
Manual for Courts-Martial been reviewed for constitutionality by any federal or
military appellate court and does the Department believe those procedures meet all
constitutional requirements?
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54
Mr. Cox. Since the new capital punishment rules were issued in 1984, there have
been two homicide cases in which the death penalty was adjudged. One case cur-
rently is pending before the Army Court of Military Review. The other case is
awaiting action by the convening authority.
As a It would be inappropriate for me to comment on the two cases now under review. ita Manual for aCourtts-Martial meet all applicable const tut onal requirements.
P punishment rules in the
Senator WILSON. Finally, if this subcommittee were to report a bill containing a
capital offense peacetime espionage article such as the one contained in S. 1301,
would the Department prefer that the bill include a statutory provision providing
procedures for imposition of capital punishment?
Mr. Cox. The President should have the flexibility to prescribe
cedures that meet the needs of the armed forces. We would prefer that the statute
not constrain his authority in that regard. guidelines and pro-
Senator WILSON. Mr. Cox, I have a couple of technical questions for you about pro-
Posed Article 1O6A which you did not cover in your statement.
First, I recognize that proposed Article 106A is drafted consistent with the lan-
guage of existing section 794 of title 18, which is the enforcement responsibility of
the Department of Justice. However, it appears that an offense could be committed
under that article if a person subject to the Code were to transmit national defense
information, whether classified or not, to Great Britain believing that information
would be to the advantage of West Germany and without intent or reason to believe
it would be harmful to the United States. have
courts i
nte
its use of Pect to the need
4 of for; some sort tof bad faith onrthindividual's 9part , a d o18 u dt he Department limit
proposed article 106A to the types of cases which section 794 has his-
torically use of been applied?
Mr. Cox. The Supreme Court, in United States v.' Gorin, 412 U.S. 19 (1941) noted
that the accused had o be ctingg bad faith, and also noted that the phrase re-
gading distinction between friend or enemy because the statuso of relationships may
change. gn country" makes
By incorporating the substantive provisions of section 794, we recognize that the
applicable civilian precedents-both from past and those that may be developed in
the future-willbe given appropriate recognition by the military judiciary and the
Court of Military A
W ppeals.
in olved in atvviiolation of Artcle 106A, t att ctwo ic one ountry which receives the infor-
mation and one which is advan~ countries could be
countries would have to be the Soviet Uni its n torna Communwisti Nat Nation in orderr to
trigger the mandatory death or life imprisonment clause of the proposed article.
Mr. Cox. The proposed language of S. 1301, like the current statute, proscribes
transfer of defense information "with intent or reason to believe that it is to be used
to the injury of the United States or to the advantage of a foreign
"either directly or indirectl
y nation"; the
tion. S. 1301 then differs from current law by " to a 'foreign government" or fac-life
imprisonment "if the foreign government is he Government of the Soviet Union"
or any other communist government designate
As suggested by your question, it is not c earwh tthe
herPthedmandato
provisions in S. 1301 refer to the intent clause (that is, the country that is advan-.
taged by the transfer of information) or to the clause referring to the country that
receives the information-which may be different from the country that is advan-
taged.
Senator WnsoN. Finally, the mandatory death or life imprisonment clause of pro-
posed Article 106A refers to a Government of the Soviet Union or of any other Com-
munist country. The language appearing earlier in Article 106A refers to advantag-
ing a foreign nation by transmitting information to any foreign Government, fac-
tion, party, military or naval force, or to any representative, officer, agent, employ-
ee, subject, or citizen thereof.
How would the Department interpret the term Government in the mandatory
sentence clause? Would the mandatory sentence phrase be triggered only if the in-
formation were transmitted directly to the Government of the Soviet Union or an-
other Communist country?
Mr. Cox. The statute proscribes indirect as well as direct transfers. The difficulty
in such circumstances would be in proving that a information transferred to a non-
communist country was intended to be transferred to the Soviet Union. We would
prefer deletio;
' be clarified to:
Senator Nu:
There are cur
death penalty
Court in, 408
certain procee
preme Court (utes to eet t
utes have not been several l
that, but non(
Court, either i
Posed by this'
Mr. Cox. Ind
Military Appe
penalty could
sequently am '
Manual for C
death penalty
The' constiti
dressed by the
Senator Nu:
in homicide cE
the death pen:
dal rape, notir
his dissent, Ch
The clear in
be properly in
serious doubt i
for a variety o
immediate dee
phasis added).)
In your viev
for a non-horn
prosecuted um
Mr. Cox. Ye
which establish
not involving i
Committee, wl,
Wage wou
Id n(
Seas. 7-8(1983
Senator NUT
1301 creates a
which "shall t
Justice Depart
criminal espiol
Mr. Cox. Nc
forum. It mear
S. 1301 could T
court-martial.
Defense and Jib
Senator Nuri
tied "Espi0nai
18 U.S.C. ? 793
the breadth ofi
It would make
national defen:
be used to the
What is inc
fense"?
Mr. Cox. Th
? 794 under w):
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I
re have
Ise cur-
case is
review.
in the
ining a
i. 1301,
oviding
nd pro-
statute
he lan-
ility of
emitted
lefense
oration
believe
e need
f limit
as his-
i noted
ase re-
makes
s may
at the
ped in
rid the
uld be
infor-
oreign
der to
e.
icribes
e used
the
>r fac-
ry life
rnion"
iment
idvan-
y that
Ldvan-
if pro-
Com-
intag-
t, fac-
nploy-
latory
he in-
)r an-
iculty
~ non-
would
prefer deletion of the mandatory sentencing clause. If retained, the language should
be clarified to set forth the circumstances in which it would be applicable.
QUESTIONS SUBMITTED BY SENATOR SAM NUNN
Senator NUNN. S. 1301 mandates the death penalty for certain espionage cases.
There are currently a number of federal statutes which may be punishable by the
death penalty, including the espionage statute. In 1972 the United States Supreme
Court in, 408 U.S. 238, struck-down the death penalty as-unconstitutional absent
certain procedural requirements, which have since been specified in various Su-
preme Court decisions. Although many states have revised their death penalty stat-
utes to meet the requirements set,down by the Court, the federal death penalty stat-
utes have not been amended to meet those constitutional standards. There have
been several bills introduced, including one in this Congress, which attempt to do
that, but none has passed. As I read it, S. 1301 makes no attempt to satisfy the
Court, either in amending the UCMJ or Title 18. Wouldn't the death penalty as im-
posed by this bill be held unconstitutional under the Supreme Court's standards?
Mr. Cox. In United States v. Matthews, 16 M.J. 354 (C.M.A. 1983), the Court of
Military Appeals stated that appropriate procedures for adjudication of the death
penalty could be prescribed either by the President or Congress. The President sub-
sequently amended the Manual for Courts-Martial to establish such procedures. The
Manual for Courts-Martial would be available to provide constitutionally sufficient
death penalty procedures for a new espionage statute under the UCMJ.
The constitutionality of the title 18 amendments made by S. 1301 will be ad-
dressed by the Department of Justice in a separate submission to this subcommittee.
Senator NUNN. Since the Furman case, the death penalty has been imposed only
in homicide cases. In Coker v. Georgia, 433 U.S. 584 (1971) the Supreme Court found
the death penalty impermissible as cruel and unusual punishment for a non-homici-
dal rape, noting that the rapist "does not take human life" (Coker, supra at 598). In
his dissent, Chief Justice Burger stated:
The clear implication of today's holding appears to be that the death penalty may
be properly imposed only as to crimes resulting in the death of a victim. This casts
serious doubt upon the constitutional validity of statutes imposing the death penalty
for a variety of conduct which, though dangerous, may not necessarily result in any
immediate death, e.g., treason, airplane hijacking, and kidnapping. (Id., at 621 (em-
phasis added).)
In your view, does current federal case law sanction the use of the death penalty
for a non-homicidal act such as espionage, regardless of whether the individual is
prosecuted under the UCMJ or Title 18?
Mr. Cox. Yes. During the last Congress, the Senate approved legislation, S. 1765,
which established capital sentencing procedures for espionage and other offenses
not involving the death of a victim. I agree with the views of the Senate Judiciary
Committee, which noted in its report on S. 1765 that the death penalty for espio-
nage would not be unconstitutional under Coker. S. Rep. No. 251, 98th Cong., 1st
Sess. 7-8 (1983).
Senator NUNN. In amending the Uniform Code of Military Justice, section 5 of S.
1301 creates a criminal espionage offense punishable by death or life imprisonment
which "shall be tried by a general court-martial." Does that language prevent the
Justice Department from prosecuting a member of the armed services under the
criminal espionage statutes in Title 18?
Mr. Cox. No. The quoted phrase refers to the level of trial, not to the choice of
forum. It means that a military trial of an offense under Article 106a as proposed in
S. 1301 could be held only in a general court-martial, not in a special or summary
court-martial. It does not pertain to the relationships between the Departments of
Defense and Justice with respect to offenses in which both have jurisdiction.
Senator NUNN. Section 5 of S. 1301 amends the UCMJ by adding a provision enti-
tled "Espionage in Time of Peace." I recognize that the provision is patterned after
18 U.S.C. ? 793 and ? 794, the civilian espionage statutes, but I am concerned about
the breadth of the provision. For example, it is not limited to classified information.
It would make it a crime under the UCMJ to pass "any information relating to the
national defense" to a foreign nation "with intent or reason to believe that it is to
be used to the ' ury of the United States or to the advantage of a foreign nation."
What is included in the clause "any information relating to the national de-
fense"?
Mr. Cox. This phrase is taken directly from the current provisions of 18 U.S.C.
? 794 under which both military personnel and civilians may be tried in federal dis-
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56
trict court may receive a sentence to life imprisonment. Under last year's Senate
action, the death penalty also would be authorized. Similar language
U.S.C. ? 793, which may be incorporated into the milita
appears in 18
the third clause of Article 134, 10 U.S.C. system through
The Supreme Court, in United States v. Gorin, 214 U.S. 19, 28 (1941), held that the
term "national defense," as used in the statute, "'
notations, referring to the military and naval establishmen r c concept of broad con-
ties of national preparedness" This is limited by the r
accused must be ' m equirementtthe raction of the
accessible to the bad faith and that the information not be of the t
a
(2d Cir. 1945). ceriden d 328'U.s 833 (1946 United States V. Heine, 141 Fthat is
Senator NUNN. What does the clause "to the in'u 2d 813
advantage of a foreign nation" mean? rY of the United States or to the
the
Mr. Cox. These words have been given their ordinary meaning These phrases are important in governing is not
the intent requirement, and in
the basis for concluding that public information
them, at 2 28. providing
s within the statute. See courts.
Senator NUNN. The provision would also apply to a disclosure to a foreign nation,
"directly or indirectly. Does this mean that someone who leaks
information to -
media could be prosecuted under this section? Mr. Cox. To the extent that this question involves an indivial who discloses in
formation to the press for the sole purpose of bringing it to the attention of the
American public, it is unlikely that such an action would meet the intent require-
ments of 18 U.S.C. ? 794.
Senator NuNN. Do the cases in federal courts interpreting 18 U.S.C.
? 794 apply to military courts, and if so, would they 5 of S. 1301? Y serve to limit the scope 793 and
Mr. Cox. When offenses under the Federal Criminal of the military justice system through the third clause n by
of Code Article 134, the incorporated into
into
civilian precedents-and limitations therein dare o
applicable
military courts. Of coourse, the circumstances involving the srtandards and 6'nitiresponsi-
bilities of members of the armed forces ma
those applicable to their civilian counterparts. Theediffer, in while civilian
taken applicable to theirsee Particular situcednskes are
from
consideration the unique needslof thelarmed o ces. We would anticipate that the
foregoing considerations would be a the military setting may y take into
to
military judiciary in the interpretation of by sthe tatute containing Military sions identical to 18 U.S.C. ? 794. Appeals and the
Senator NuxN. Given the substantive provi-
draft anew ambiguities in section 5, wouldn't it be
Mt. Cox, , carefully drawn provision? preferable to
The espionage statutes were the product of extensive con
con-
sideration. This legislative history has been influential in litigation regardin offenses, and the statutes have congressional Principles were abandoned in favor of limited statute seal the courts. I th g these
espionage law, the risk of ambi g with the So itti settl ed
of
tion 794 remains in effect in theu Federal might be rably Increased
form Code of Milita . So long as sec-
ry Justice should contain similar subst i a~ntive long prorvvis on the Uni-
? Senator NUNN. Section 6(a) of S. 1g0 1 is not limited to persons the of
De
Defense. Could it apply to persons in other executive branch agencies? To Con-
Mr. Mr. SNIDER. stall? In To asmuch Senators? as Section 6(a) specifically indicates that "the
Defense shall requir e ..." the Department would interpret the that theioSn ash of
g only to those Personnel directly under the authority of the Secrete
i.e., DOD civilian, military and contractor apply
DoD is but one of the Executive Branch agenes Personnel In this regard, it ~ rioDefenae,
and that the Director of Central Intelli gence (DCI) has, uhe SCI program
12333, overall responsibility for policy and ~Executive
individuals for access to SCI. Procedures for determining eligibiliittydof
Senator NUNN. Subsecttiaonnt6(b) per its the Secretary of Defense to "require"
graph examinations to
sons
sons in the Department of Defense currently have classified information.
Would it be your proposal to use this authoiit many per-
classified informatioon?
for access to classified information? . Y to polygraph all
Persons
Mr. SNIDER. There are a who are oxima tractor personnel cleared for access to classified million inform Lion Cons military and culd
not be possible, given existing resources, to consider polygraph e
large number of personnel. The De ecluently, it would
Department believes that requiring outnterintf ellii--
81
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clear
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gence-scope polygraph examination for initial access to certain specific categories of
extremely sensitive classified information, and selection of individuals who have
access to these and other categories of classified information for polygraph examina-
tion on an aperiodic, random basis, would establish the polygraph as an effective
deterrent to espionage and could be accomplished with a modest expansion of our
polygraph examiner training capability.
Senator NUNN. Subsection (e) requires that the polygraph examination be restrict-
ed to "relevant issue questions." What do you believe such questions to be? For ex-
ample, is it relevant to ask an individual whether or not he or she has taken drugs?
Mr. SNIDER. The only relevant questions to be asked during polygraph examina-
tions administered for the purpose of determining eligibility for initial or continued
access to classified information are those necessary to determine whether the indi-
vidual has:
Ever engaged in espionage or sabotage against the United States.
Knowledge of anyone who is engaged in espionage or sabotage against the United
States.
Ever been approached to give or sell classified materials to unauthorized persons.
Ever given or sold classified materials to unauthorized persons.
Knowledge of anyone who has given or sold classified materials to unauthorized
persons.
Any unauthorized contact with representatives of a foreign government.
Questions concerning use of drugs, credit, sexual behavior, or other "life-style
questions would be appropriate only in situations where the individual made admis-
sions which indicated that such matters had had a bearing on involvement in espio-
nage or sabotage, etc. In such cases the polygraph would be utilized to confirm the
information provided.
QUESTIONS SUBMITTED BY SENATOR CARL LEVIN
Senator LEVIN. Section 6(c) of the bill states "the results of polygraph examina-
tions shall not be used as the sole basis for denying eligibility for clearance or access
to any classified information." Under this provision, could polygraph results be used
alone for any purpose? Under Section 6 will polygraph be used for any purpose
other than for security clearances?
Mr. SNIDER. To answer this question it is necessary to distinguish between "analy-
sis of polygraph charts," and the "results of a polygraph examination." It has tradi-
tionally been the policy of the Department that unfavorable action will not be taken
against an individual solely on the basis of the results of an analysis of the poly-
graph charts. However, the results of the polygraph would encompass any admis-
sions or confessions that the individual might make either before or after collection
of the polygraph charts. It is believed that the Department should not be prohibited
from using this information in reaching a determination regarding eligibility for
access to classified information.
With respect to use of an analysis of polygraph charts, the Department's policy is
that when deception is indicated by the examiner's interpretation of polygraph
charts, an indepth interview of the subject will be undertaken by the examiner im-
mediately following the running of the charts to resolve such indicated deception. If
the indication of deception cannot be resolved through such means, the subject will
be so advised and the results of the examination forwarded to the requesting
agency. If, after reviewing the polygraph examination results, the requesting agency
determines that there is a significant question concerning the subject's clearance or
access status, the subject shall be given the opportunity to undergo additional exam-
ination using the same or a different examiner. If such additional examination is
not sufficient to resolve the matter, a comprehensive investigation of the subject
shall be undertaken, using the results of the polygraph examination as an investiga-
tive lead. If such investigation develops no derogatory information that could, in
and of itself, substantiate taking unfavoirable action, no such unfavorable action
shall be permitted.
The only exception to this policy is when the Secretary of Defense, Deputy Secre-
tary of Defense, a Secretary of one of the Military Departments, or the Director of
NSA or DIA, determines personally, in writing, that the information in question is
of such extreme sensitivity that access under the circumstances poses an unaccept-
able risk to the national security.
With respect to the second part of the question, the Department believes that it is
clear that the legislation applies only to use of the polygraph in connection with
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determining eligibility for personnel security clearance or access to classified infor-
mation.
Senator LEVIN. You mentioned in your testimony that an espionage trial which
takes place in military court limits public disclosure of classified information. Given
this concern with information protection, why do you support reestablishing capital
punishment for peacetime espionage under Title 18 of the federal criminal code
where the government's interest in limiting public disclosure of classified informa-
tion conflicts with the extensive rights afforded the accused in a capital case?
Mr. Cox. The rights provided to an accused in a capital case do not create a sig-
nificantly greater risk of disclosure than the rights applicable in a noncapital case.
Senator LEVire. Do you think that the provisions in ? 1301 establishing capital
punishment for peacetime espionage are consistent with the Supreme Court's deci-
sion in Coker v. Georgia which suggests that the death penalty is a disproportionate
punishment for non-homicidal offenses? No one has ever been executed for peace-
time espionage under Section 794 and the military code of justice has never made
peacetime espionage an offense punishable by death. Does this indicate that capital
punishment for peacetime espionage may be too severe in relation to the offense?
Mr. Cox. During the last Congress, the Senate approved legislation, S. 1765, which
established capital sentencing procedures for espionage and other offenses not in-
volving the death of a victim. I agree with the views of the Senate Judiciary Com-
mittee, which noted in its report on S. 1765 that the death penalty for espionage
would not be unconstitutional under Coker. S. Rep. No. 251, 98th Cong., 1st Sess. 7-8
(1983).
The Department of Justice reports that there have been two executions for espio-
nage under section 794 out of 11 convictions under that statute between 1951 and
1972, the year of the Supreme Court's Furman. None of these offenses were directly
related to a wartime situation. I do not agree that this indicates that the death pen-
alty may be too severe, particularly in view of the fact that the sentencing process-
even before Furman- gave great weight to the nature of the offense and offender in
ea
ch particular case. The absence of a specific capital provision in the UCMJ must context
be viewed in
the in federal coil an trials, and does availt reflect of the a legis at vepenalty nor se mpe g sere s
cemembers from this punishment. As to the appropriate j gmet exempting penalty, concur in the views of the Senate Judiciary Copmmitteee rem rttsupra, death which noted
I
that espionage offenses "are a part of the laws of most countries and ommonly, as
in current United States law, carry the death penalty as an authorized sentence."
Senator LEvIN. Have there been convictions for espionage under the current pro-
visions in the U.S. Military Code? How many people have been convicted under
these statutes? Of those persons convicted under these provisions, how many have
been sentenced to death? How many of those sentenced to death have been execut-
ed? con-
victed of espdescribe the i espionage weer sentenced to to surrounding death and in which . the e in which sentences of death
were not carried out.
Mr. Cox. Because military justice authority is decentralized, we do not have pre-
cise data relating convictions to offenses. Cases in which the sentence, as approved inemen a punitivevdischarage aretsent ton he Courtstof Mconf ilitary Review, ao nd year or
have somer-
what more complete information with respect to reported decisions. Our informa-
tion with respect to the death penalty is based upon the following review require-
ments: if the death sentence is approved by the convening authority, there is man-
datory review by the Court of Military Review; if the Court of Military Review ap-
proves the death sentence, there is mandatory review by the Court of Military Ap-
on by the Presid nt before it mabe dexecuted gThere death feew repor a cases acted
onage-related offenses under the UCMJ and none have involved death ans au hor-
ized punishment.
Since the UCMJ became effective in 1951, there have been no convictions for war-
time spying under Article 106. None of the convictions for aiding the enemy under
Article 104 have been for offenses of the type prosecuted under espionage statutes
in the Federal Criminal Code. There has been at least one conviction involving con-
spiracy and attempt, to aid the enemy. The death penalty was not an authorized
punishment in that case.
As I noted in my statement, there is no article in the UCMJ that expressly ad
'dresses peacetime espionage, and such offenses must be prosecuted in the military
ustice system under various articles dealing with noncapital offenses. The Courts of
eider the UCMJainv ollvving offensesMilitary le teAs have affirmed d~to the Federal rimin least 's cases
Codees espio-
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the call,
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59
nage statutes. The death penalty was not an authorized punishment in any of these'
cases.
:Senator LsVIN. You have advocated flexibility in this area in order to achieve spe-
in
cific goals, such as damage limitation. In your testimony you stated: "Frequently an espionage situation, an investigation may reveal only the tip of the iceberg.
There is the need to assess damage, and to probe deeper for other offenders." Once a
person has been executed, don't you foreclose all opportunity to "probe deeper"?
Mr. Cox. A mandatory death sentence does not preclude all opportunity to "probe
deeper." It would remove all incentive for the accused to cooperate fully with coun-
terintelligence authorities. Usually in espionage trials, once counsel for the accused
is convinced his client will be convicted, counsel will plea bargain. This could result
in a guilty plea in return for only one life sentence versus five life sentences. In
return, the prosecution requires a complete statement of all material compromised
and the identity and degree of participation of all other persons. This complete
statement must be verified by polygraph or the plea bargain is rescinded. A discre-
tionary death penalty would enhance this system which is working well. A manda-
tory death penalty would harm this important counterintelligence process.
Senator LEWN. Doesn't the death penalty prevent the Department from negotiat-
ing with foreign governments in order to arrange swaps of spies?
Mr. Cox. Of course.
Senator WILSON. This hearing is adjourned.
Thank you very much, Mr. Cox.
[Whereupon, at 4:45 p.m., the subcommittee adjourned, subject to
the call of the Chair.]
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