STATEMENT OF FRANK C. CARLUCCI DEPUTY DIRECTOR OF CENTRAL INTELLIGENCE BEFORE THE SUBCOMMITTEE ON LEGISLATION OF THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE HOUSE OF REPRESENTATIVES ON H.R. 5615 THE INTELLIGENCE IDENTITIES PROGRAM

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91-00901R000100220006-0
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 39
• Document Creation Date: December 14, 2016
• Document Release Date: August 6, 2001
• Sequence Number: 6
• Publication Date: January 30, 1980
• Content Type: STATEMENT

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STATEMENT OF
FRANK C. CARLUCCI
DEPUTY DIRECTOR OF CENTRAL INTELLIGENCE
BEFORE THE
SUBCOMMITTEE ON LEGISLATION
OF THE
PERMANENT SELECT COMMITTEE ON INTELLIGENCE
HOUSE OF REPRESENTATIVES
JANUARY 30, 1980
ON
H.R. 5615
THE
"INTELLIGENCE IDENTITIES PROTECTION ACT"
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MR. CHAIRMAN:
I WANT TO THANK YOU AND THE OTHER DISTINGUISHED MEMBERS
OF THIS COMMITTEE FOR THE OPPORTUNITY TO DISCUSS LEGISLATION
WHICH I CONSIDER TO BE URGENTLY NEEDED AND VITAL TO THE
FUTURE SUCCESS OF OUR COUNTRY'S FOREIGN INTELLIGENCE COLLECTION
EFFORTS. I HAVE WITH ME TODAY MY GENERAL COUNSEL, DANIEL B.
SILVER, AND MY LEGISLATIVE COUNSEL, FREDERICK P. HITZ, BOTH
OF WHOM HAVE BEEN INTIMATELY INVOLVED IN OUR EFFORTS TO
OBTAIN STATUTORY PROTECTION FOR OFFICERS AND EMPLOYEES OF
THE INTELLIGENCE COMMUNITY WHO SERVE UNDER COVER, AND FOR
OUR FOREIGN AGENTS AND SOURCES WHOSE RELATIONSHIPS WITH THE
INTELLIGENCE COMMUNITY ARE INTENTIONALLY CONCEALED.
I START THIS MORNING FROM THE PREMISE THAT OUR EFFORTS
TO COLLECT INFORMATION ABOUT THE PLANS AND INTENTIONS OF OUR
POTENTIAL ADVERSARIES CANNOT BE EFFECTIVE IN A CLIMATE THAT
CONDONES REVELATION OF THE MEANS BY WHICH THOSE EFFORTS ARE
CONDUCTED" INDEED, THE IMPUNITY WITH WHICH MISGUIDED
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INDIVIDUALS CAN DISCLOSE OUR UNDERCOVER OFFICERS AND EMPLOYEES
AND OUR FOREIGN AGENTS AND SOURCES HAS HAD A HARMFUL EFFECT
ON HUMAN INTELLIGENCE COLLECTION AND OTHER ASPECTS OF OUR
INTELLIGENCE PROGRAM AS WELL. EQUALLY SIGNIFICANT IS THE
INCREASED RISK AND DANGER SUCH DISCLOSURES POSE TO THE MEN
AND WOMEN WHO ARE SERVING THE UNITED STATES IN DIFFICULT
ASSIGNMENTS ABROAD. IT IS OUTRAGEOUS THAT DEDICATED PEOPLE
ENGAGED OR ASSISTING IN U.S. FOREIGN INTELLIGENCE ACTIVITIES
CAN BE ENDANGERED BY A FEW INDIVIDUALS WHOSE AVOWED PURPOSE IS
TO DESTROY THE EFFECTIVENESS OF ACTIVITIES AND PROGRAMS DULY
AUTHORIZED BY THE CONGRESS.
MR. CHAIRMAN, RECENT WORLD EVENTS HAVE DRAMATICALLY
DEMONSTRATED THE IMPORTANCE OF MAINTAINING A STRONG AND
EFFECTIVE INTELLIGENCE APPARATUS. THE INTELLIGENCE COMMUNITY
MUST HAVE BOTH THE MATERIAL AND THE HUMAN RESOURCES NEEDED
TO ENHANCE ITS ABILITY TO MONITOR THE MILITARY ACTIVITIES OF
OUR ADVERSARIES AND TO PROVIDE INSIGHTS INTO THE POLITICAL,
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ECONOMIC, AND SOCIAL FORCES WHICH W'i'ILL SHAPE WORLD AFFAIRS
IN THE 1980'S. IT IS PARTICULARLY IMPORTANT THAT EVERY
EFFORT BE MADE TO PROTECT OUR INTELLIGENCE OFFICERS AND
SOURCES. IT IS IMPERATIVE THAT THE 96TH CONGRESS CLEARLY
AND COMPELLINGLY DECLARE THAT THE UNAUTHORIZED DISCLOSURE OF
THE IDENTITIES OF OUR INTELLIGENCE OFFICERS AND THOSE ALLIED
IN OUR EFFORTS WILL NO LONGER BE TOLERATED. THE PRESIDENT
HAS EXPRESSED HIS DETERMINATION TO "INCREASE OUR EFFORTS TO
GUARD AGAINST DAMAGE TO OUR CRUCIAL INTELLIGENCE SOURCES
AND OUR METHODS OF COLLECTION, WITHOUT IMPAIRING CIVIL AND
CONSTITUTIONAL RIGHTS." LEGISLATION IN THIS AREA MUST BE
CAREFULLY CRAFTED. IT MUST SAFEGUARD THE NATION'S INTELLI-
GENCE CAPABILITIES WITHOUT IMPAIRING THE RIGHTS OF AMERICANS
OR INTERFERING WITH CONGRESSIONAL OVERSIGHT.
ATTORNEY GENERAL CIVILETTI HAS RECOGNIZED THE NEED FOR
IDENTITIES LEGISLATION, SPEAKING EARLIER THIS MONTH ON
INTELLIGENCE AND THE LAW AT THE FORDHAM UNIVERSITY LAW
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SCHOOL, HE SAID - "..-THIS IS AN IMPORTANT TIME TO BE AWARE
THAT THE UNFINISHED AGENDA OF LAWMAKING IN INTELLIGENCE
INCLUDES SOME IMPORTANT ITEMS FOR THE LEGITIMATE PROTECTION
OF OUR INTELLIGENCE ACTIVITIES. EXISTING LAW PROVIDES
INADEQUATE: PROTECTION TO THE MEN AND WOMEN WHO SERVE OUR
NATION AS INTELLIGENCE OFFICERS. THEY NEED -- AND DESERVE --
BETTER PROTECTION AGAINST THOSE WHO WOULD INTENTIONALLY
DISCLOSE THEIR SECRET MISSION AND JEOPARDIZE THEIR PERSONAL
SAFETY BY DISCLOSING THEIR IDENTITIES. PUBLIC COMMENT AND
CRITICISM OF INTELLIGENCE ACTIVITIES AND SPECIFIC OPERATIONS
IS PROPER. REVEALING THE IDENTITIES OF PARTICULAR INTELLIGENCE
PERSONNEL AND PLACING THEM IN DANGER, ON THE OTHER HAND,
SERVES NO LEGITIMATE PURPOSE. OUR PROPER CONCERN FOR
INDIVIDUAL LIBERTIES MUST BE BALANCED WITH A CONCERN FOR THE
SAFETY OF THOSE WHO SERVE THE NATION IN DIFFICULT TIMES AND
UNDER DANGEROUS CONDITIONS."
THIS COMMITTEE AND OTHER MEMBERS OF CONGRESS HAVE FOR
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SOME TIME RECOGNIZED THE "INADEQUATE PROTECTION" TO WHICH
THE ATTORNEY GENERAL REFERRED. REPRESENTATIVE MICHEL OF
ILLINOIS AND SENATOR BENTSEN OF TEXAS INTRODUCED BILLS TO
PROTECT INTELLIGENCE IDENTITIES IN THE 94TH AND 95TH CONGRESSES
RESPECTIVELY. NINE "IDENTITIES" BILLS HAVE BEEN INTRODUCED
THUS FAR IN THE 96TH CONGRESS, INCLUDING BILLS BY SENATOR
BENTSEN AND BY REPRESENTATIVE CHARLES E. BENNETT OF FLORIDA,
BOTH OF WHOM WILL BE TESTIFYING AT THESE HEARINGS. THE
INTRODUCTION OF H.R. 5615, THE "INTELLIGENCE IDENTITIES
PROTECTION ACT" BY THE ENTIRE MEMBERSHIP OF THE PERMANENT
SELECT COMMITTEE ON INTELLIGENCE LAST OCTOBER WAS, OF
COURSE, AN EXTREMELY SIGNIFICANT DEVELOPMENT, AND AN IMPRESSIVE
DEMONSTRATION OF THIS COMMITTEE'S DETERMINATION TO MAINTAIN
THE EFFECTIVENESS OF OUR NATION'S FOREIGN INTELLIGENCE
ACTIVITIES. LAST WEEK, THE COMMITTEE'S BILL WAS INTRODUCED
IN THE SENATE AS SECTION 4 OF S. 2216, A BILL COSPONSORED BY
SENATORS MOYNIHAN, JACKSON, NUNN, CHAFEE, DANFORTH, WALLOP,
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AND DOMENICI. I BELIEVE THESE EFFORTS REFLECT A GROWING
FEELING THAT WE, AS A GOVERNMENT, MUST COME TO GRIPS WITH
THIS PROBLEM AND DETERMINE WHERE THE PUBLIC INTEREST LIES.
I DO NOT BELIEVE THERE IS ANY JUSTIFICATION OR EXCUSE FOR
THE DELIBERATE, PUBLIC DISCLOSURE OF THE IDENTITIES OF
PERSONNEL HAVING CONCEALED EMPLOYMENT OR OTHER RELATIONSHIPS
WITH THE INTELLIGENCE AGENCIES OF THE UNITED STATES GOVERNMENT.
THE DISTINGUISHED CHAIRMAN OF THIS COMMITTEE ELOQUENTLY
EXPRESSED THE ESSENCE OF THE PROBLEM IN A RECENT LETTER TO
THE EDITOR OF THE NEW YORK TIMES. CHAIRMAN BOLAND WROTE AS
FOLLOWS:
"THE OPERATING HEART OF ANY SERVICE IS THE USE OF
UNDERCOVER AGENTS AND OFFICERS OVERSEAS TO COLLECT
INTELLIGENCE INFORMATION. OBVIOUSLY, IF THE NAMES OF
THESE PEOPLE ARE SPREAD UPON THE PUBLIC RECORD THEIR
USEFULNESS IS ENDED AND THE EFFECTIVENESS OF THE
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CLANDESTINE SERVICE IS DESTROYED . . . UNAUTHORIZED
DISCLOSURE OF THE NAMES OF UNDERCOVER INTELLIGENCE
AGENTS IS A MISGUIDED ACT THAT SERVES NO USEFUL INFORMING
FUNCTION WHATSOEVER. IT DOES NOT ALERT US TO ABUSES;
IT DOES NOT BRING CLARITY TO ISSUES OF NATIONAL POLICY;
IT DOES NOT ENLIGHTEN PUBLIC DEBATE; AND IT DOES NOT
CONTRIBUTE ONE IOTA TO THE GOAL OF AN EDUCATED AND
INFORMED ELECTORATE. WHAT IT DOES DO IS PLACE LIVES IN
DANGER AND CRIPPLE OUR EFFORTS TO COLLECT TIMELY AND
ACCURATE INTELLIGENCE, THE SINA QUA NO. FOR THE EFFECTIVE
CONDUCT OF FOREIGN AFFAIRS. WHATEVER THE MOTIVES OF
THOSE ENGAGED IN SUCH ACTIVITY THE ONLY RESULT IS THE
COMPLETE DISRUPTION OF OUR LEGITIMATE INTELLIGENCE
COLLECTION PROGRAMS, PROGRAMS THAT BEAR THE IM
PRIMATUR
OF THE CONGRESS, THE PRESIDENT AND THE AMERICAN PEOPLE.
SUCH A RESULT BENEFITS NO ONE BUT OUR ADVERSARIES."
MR. CHAIRMAN, THOSE WHO SEEK TO DESTROY THE INTELLIGENCE
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 ACT IV~3~I 'reel) o1~& Iel /c jc T: ~A 91E
W04k8&;O~2 Q#R OF
FALLACIES. UNFORTUNATELY SOME OF THESE HAVE FOUND THEIR
WAY INTO DISCUSSIONS OF H.R. 5615 IN THE PRESS AND ELSEWHERE.
ONE OF THESE FALLACIES IS THAT ACCURATE IDENTIFICATION
OF CIA PERSONNEL UNDER COVER CAN BE MADE MERELY BY CONSULTING
PUBLICLY AVAILABLE DOCUMENTS, LIKE THE STATE DEPARTMENT'S
BIOGRAPHIC REGISTER, AND THEREFORE THE BILL WOULD IMPINGE
ON DISCUSSION OF INFORMATION THAT IS IN THE PUBLIC
DOMAIN. THIS IS UNTRUE. THERE IS NO OFFICIAL UNCLASSIFIED
LISTING ANYWHERE THAT IDENTIFIES UNDERCOVER CIA OFFICERS.
THE BIOGRAPHIC REGISTER AND SIMILAR DOCUMENTS CANNOT BE
USED, WITHOUT ADDITIONAL SPECIALIZED KNOWLEDGE AND SUBSTANTIAL
EFFORT, TO MAKE SUCH IDENTIFICATIONS ACCURATELY. IT IS ONLY
BECAUSE OF THE DISCLOSURE OF SENSITIVE INFORMATION BASED ON
PRIVILEGED ACCESS AND MADE BY FAITHLESS GOVERNMENT EMPLOYEES,
SUCH AS PHILIP AGEE AND JOHN MARKS, WITH THE PURPOSE OF
DAMAGING U.S. INTELLIGENCE EFFORTS THAT THE PUBLIC HAS
BECOME AWARE OF INDICATORS IN THESE DOCUMENTS THAT CAN --
AND SOMETIMES DO -- DISTINGUISH CIA OFFICERS.
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THIS, HOWEVER, IS NOT THE FULL EXTENT OF THE PROBLEM.
A SUBSTANTIAL NUMBER OF THE IDENTIFICATIONS MADE BY SUCH
AVOWED ENEMIES OF UNITED STATES INTELLIGENCE ACTIVITY
AS THEPUBLISHERS OF COVERT ACTION INFORMATIONULLETIN
HAVE BEEN ACCURATE. THIS INDICATES THAT THEY ARE BASED ON
EXTENSIVE INVESTIGATION, USING MANY OF THE SAME TECHNIQUES
AS ANY INTELLIGENCE SERVICE USES IN ITS COUNTERINTELLIGENCE
EFFORTS ---IN EFFECT, SPYING ON THE UNITED STATES.
A SECOND FALLACY IS SO RIDICULOUS THAT I WOULD NOT
MENTION IT EXCEPT THAT IS HAS CROPPED UP REPEATEDLY IN
DISCUSSION OF THIS MATTER. THAT IS THAT SOMEONE MAY ENGAGE,
IN GOOD FAITH, IN THE PUBLIC DISCLOSURE OF INTELLIGENCE
IDENTITIES IN ORDER TO IMPROVE THE SECURITY PRACTICES OF OUR
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INTELLIGENCE AGENCIES. THIS IS LIKE SAYING THAT A PERSON
MIGHT SHOOT MEMBERS OF CONGRESS FOR THE SOLE PURPOSE OF
STRENGTHENING CAPITOL SECURITY BY DEMONSTRATING SHORTCOMINGS.
ANY PATRIOTIC CITIZEN WHO BELIEVES THAT HE HAS DETECTED
WEAKNESSES IN THE COVER ARRANGEMENTS USED BY A UNITED STATES
INTELLIGENCE ORGANIZATION CAN SERVE THE INTEREST OF IMPROVING
SECURITY ONLY BY DISCREETLY BRINGING THAT INFORMATION TO
THE ATTENTION OF THE ORGANIZATION ITSELF, THE PRESIDENT'S
INTELLIGENCE OVERSIGHT BOARD, OR THIS COMMITTEE OR THE
SENATE SELECT COMMITTEE ON INTELLIGENCE.
A THIRD FALLACY IS THAT THOSE WHO SEEK THE DESTRUCTION
OF THE NATION'S INTELLIGENCE ACTIVITES CANNOT BE DISTINGUISHED
FROM SINCERE CRITICS OF THE CIA OR OTHER INTELLIGENCE
AGENCIES AND ACTIVITIES. THE BEST ANSWER TO THIS IS THE ONE
GIVEN BY ATTORNEY GENERAL CIVILETTI: "PUBLIC COMMENT AND
CRITICISM OF INTELLIGENCE ACTIVITIES AND SPECIFIC OPERATIONS
IS PROPER.- REVEALING THE IDENTITIES OF PARTICLUAR INTELLIGENCE
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PERSONNEL AND PLACING THEM IN DANGER, ON THE OTHER HAND,
SERVES NO LEGITIMATE PURPOSE." IT IS NOTEWORTHY IN THIS
REGARD THAT THE CHURCH AND PIKE COMMITTEE INVESTIGATIONS,
THE ROCKEFELLER COMMISSION REPORT, AND RELATED PRESS
DISCLOSURES, AS WELL AS THE SUBSEQUENT OVERSIGHT ACTIVITIES
OF THIS COMMITTEE AND ITS SENATE COUNTERPART, ALL HAVE
MANAGED TO ENCOMPASS EXTENSIVE PUBLIC AND CONGRESSIONAL
SCRUTINY AND CRITICISM OF INTELLLIGENCE ACTIVITIES WITHOUT
RECOURSE TO WHOLESALE DISCLOSURE OF THE NAMES OF UNDERCOVER
INTELLIGENCE PERSONNEL IN THE CATEGORIES COVERED BY H.R.
5615. I BELIEVE THAT THIS CO
MMITTEE AND THE CONGRESS WILL
FIND THAT WE NEED TO EFFECTIVELY PUT AN END TO THE DELIBERATE
DISCLOSURE OF THE IDENTITIES OF OUR COVERT INTELLIGENCE
PERSONNEL FOR ANY REASON.
THAT THE UNAUTHORIZED DISCLOSURE OF THE IDENTITIES OF
INDIVIDUALS ENGAGED OR ASSISTING IN THE FOREIGN INTELLIGENCE
ACTIVITIES OF THE UNITED STATES HAS DAMAGED OUR NATION'S
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FOREIGN INTELLIGENCE GATERING CAPABILITIES IS BEYOND
QUESTION. OBVIOUSLY, SECURITY CONSIDERATIONS PRECLUDE MY
CONFIRMING OR DENYING SPECIFIC INSTANCES OF PURPORTED
IDENTIFICATION OF U.S. INTELLIGENCE PERSONNEL. SUFFICE IT
TO SAY THAT A SUBSTANTIAL NUMBER OF THESE DISCLOSURES HAVE
BEEN ACCURATE. THE DESTRUCTIVE EFFECTS OF THESE DISCLOSURES
HAVE BEEN VARIED AND WIDE-RANGING.
OUR RELATIONS WITH FOREIGN SOURCES OF INTELLIGENCE
HAVE BEEN IMPAIRED. SOURCES HAVE EVINCED INCREASED CONCERN
FOR THEIR OWN SAFETY. SOME ACTIVE SOURCES, AND INDIVIDUALS
CONTEMPLATING COOPERATION WITH THE UNITED STATES, HAVE
TERMINATED OR REDUCED THER CONTACT WITH US- SOURCES HAVE
QUESTIONED HOW THE UNITED STATES GOVERNMENT CAN EXPECT ITS
FRIENDS TO PROVIDE INFORMATION IN VIEW OF CONTINUING DISCLOSURES
OF INFORMATION THAT MAY JEOPARDIZE THEIR CAREERS, LIBERTY
AND VERY LIVES.
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NEARLY ALL MAJOR FOREIGN INTELLIGENCE SERVICES WITH
WHICH WE HAVE LIAISON RELATIONSHIPS HAVE UNDERTAKEN REVIEWS
OF: THEIR RELATIONS WITH US. SOME IMMEDIATELY DISCERNIBLE
RESULTS OF CONTINUING DISCLOSURES INCLUDE REDUCTION OF
CONTACT AND REDUCED PASSAGE OF INFORMATION. IN TAKING THESE
ACTIONS, SOME LIAISON SERVICES HAVE EXPLICITY CITED DISCLOSURES
01: INTELLIGENCE IDENT-ITIES.
WE ARE INCREASINGLY BEING ASKED TO EXPLAIN HOW WE CAN
GUARANTEE THE SAFETY OF INDIVIDUALS WHO COOPERATE WITH US
WHEN WE CANNOT'PROTECT OUR OWN OFFICERS FROM EXPOSURE. YOU
CAN IMAGINE THE CHILLING EFFECT IT MUST HAVE ON A SOURCE TO ONE
DAY DISCOVER THAT THE INDIVIDUAL WITH WHOM HE HAS BEEN IN
CONTACT HAS BEEN OPENLY IDENTIFIED AS A CIA OFFICER. THE
IMPACT IN THIS REGARD IS TWOFOLD: FIRST, THERE IS A SUBSTANTIAL
ADVERSE IMPACT ON THE AGENCY'S ABILITY TO COLLECT INTELLIGENCE;
SECONDLY, SOME OF OUR FOREIGN SOURCES WHO MUST REMAIN IN
PLACE IN SPITE OF THE DISCLOSURE MAY BE SUBJECT TO SEVERE
SANCTIONS.
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THE PROFESSIONAL EFFECTIVENESS OF OFFICERS SO COMPROMISED
IS SUBSTANTIALLY AND SOMETIMES IRREPARABLY DAMAGED. THEY
MUST REDUCE OR BREAK CONTACT WITH SENSITIVE COVERT SOURCES.
CONTINUED CONTACT MUST BE COUPLED WITH INCREASED DEFENSIVE
MEASURES THAT ARE INEVITABLY MORE COSTLY AND TIME-CONSUMING.
SOME OFFICERS MUST BE REMOVED FROM THEIR ASSIGNMENTS AND
RETURNED FROM OVERSEAS AT SUBSTANTIAL COST. YEARS OF
IRREPLACEABLE AREA EXPERIENCE AND LINGUISTIC SKILL ARE LOST.
REASSIGNMENT MOBILITY OF THE COMPROMISED OFFICER IS IMPAIRED.
AS A RESULT, THE POOL OF EXPERIENCED CIA OFFICERS IS BEING
REDUCED. SUCH LOSSES ARE DEEPLY FELT IN VIEW OF THE FACT
THAT, IN COMPARISON WITH THE INTELLIGENCE SERVICES OF OUR
ADVERSARIES, WE ARE NOT A LARGE ORGANIZATION. REPLACEMENT
OF OFFICERS THUS COMPROMISED IS DIFFICULT AND, IN SOME
CASES, IMPOSSIBLE. ONCE AN OFFICER'S IDENTITY IS DISCLOSED,
MOREOVER, COUNTERINTELLIGENCE ANALYSIS BY ADVERSARY SERVICES
ALLOWS THE OFFICER'S PREVIOUS ASSIGNMENTS TO BE SCRUTINIZED,
PRODUCING AN EXPANDED PATTERN OF COMPROMISE THROUGH ASSOCIATION.
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SUCH DISCLOSURES ALSO SENSITIZE HOSTILE SECURITY SERVICES
AND FOREIGN POPULATIONS TO CIA PRESENCE, MAKING OUR JOB FAR
MORE DIFFICULT- FINALLY, SUCH DISCLOSURES CAN PLACE INTELLI-
GENCE PERSONNEL AND THEIR FAMILIES IN PHYSICAL DANGER FROM
TERRORIST OR VIOLENCE-PRONE ORGANIZATIONS-
MR. CHAIRMAN, I AM PREPARED TO DISCUSS IN EXECUTIVE
SESSION INDIVIDUAL CASES WHICH EXEMPLIFY THE DAMAGE DONE TO
OUR INTELLIGENCE-GATHERING CAPABILITIES. MOST SIGNIFICANT,
HOWEVER, IS THE FACT THAT.THE COLLECTION OF INTELLIGENCE IS
SOMETHING OF AN ART. THE SUCCESS OF OUR OFFICERS OVERSEAS
DEPENDS TO A VERY LARGE EXTENT ON INTANGIBLE PSYCHOLOGICAL
AND HUMAN CHEMISTRY FACTORS, ON FEELINGS OF TRUST AND
CONFIDENCE THAT HUMAN BEINGS ENGENDER IN EACH OTHER, AND ON
ATMOSPHERE AND MILIEU. UNAUTHORIZED DISCLOSURE OF INFORMATION
IDENTIFYING INDIVIDUALS ENGAGED OR ASSISTING IN FOREIGN
INTELLIGENCE ACTIVITIES DESTROYS THAT CHEMISTRY. WHILE WE
CAN DOCUMENT A NUMBER OF SPECIFIC CASES, THE COMMITTEE MUST
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UNDERSTAND THAT THERE IS NO WAY TO DOCUMENT THE LOSS OF
POTENTIAL SOURCES WHO FAIL TO CONTACT US BECAUSE OF LACK OF
CONFIDENCE IN OUR ABILITY TO PROTECT THEIR IDENTITIES.
IN A TIME WHEN HUMAN SOURCES OF INTELLIGENCE ARE OF
CRITICAL IMPORTANCE, THERE CAN BE NO DOUBT THAT UNAUTHORIZED
DISCLOSURES OF THE IDENTITIES OF OUR OFFICERS, AGENTS, AND
SOURCES CONSTITUTE A SERIOUS THREAT TO OUR NATIONAL SECURITY.
CURRENT LAW HAS PROVEN TO BE INADEQUATE IN DETERRING THESE
UNAUTHORIZED DISCLOSURES, AND.THEY CONTINUE TO BE MADE WITH
VIRTUAL IMPUNITY. THE NET RESULT IS A DAMAGED INTELLIGENCE
CAPABILITY AND REDUCED NATIONAL SECURITY.
MR. CHAIRMAN, I BELIEVE THAT LEGISLATION IN THIS AREA,
TO BE EFFECTIVE, SHOULD CONTAIN CERTAIN KEY DISTINCTIONS AND
ELEMENTS. FIRST, IT SHOULD HOLD CURRENT AND FORMER EMPLOYEES
AND OTHERS WITH AUTHORIZED ACCESS TO PROTECTED INFORMATION
TO A HIGHER STANDARD THAN PERSONS WHO HAVE NOT HAD SUCH
ACCESS. SUCH INDIVIDUALS, BECAUSE OF THEIR EMPLOYMENT
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RELATIONSHIPS OR OTHER POSITIONS OF TRUST, CAN LEGITIMATELY
BE HELD ACCOUNTABLE FOR THE DELIBERATE DISCLOSURE OF ANY
IDENTITY THEY KNOW, OR HAVE REASON TO KNOW, IS PROTECTED BY
THE UNITED STATES.
SECONDLY, THE LEGISLATION SHOULD REQUIRE PROOF THAT A
DISCLOSURE IS MADE WITH CULPABLE KNOWLEDGE, OR WITH KNOWLEDGE
OF SUFFICIENT FACTS TO MAKE THE AVERAGE PERSON AWARE OF THE
NATURE AND GRAVITY OF HIS ACTIONS. THIS IS AN IMPORTANT
ELEMENT BECAUSE IT MUST DESCRIBE A STATE OF MIND WHICH WILL
SUPPORT THE ATTACHMENT OF CRIMINAL SANCTION, WHILE AT THE
SAME TIME BE CAPABLE OF PROOF IN THOSE DISCLOSURE CASES
WHICH HAVE BEEN DAMAGING. IF A PERSON DISCLOSES A PROTECTED
INTELLIGENCE IDENTITY WITH KNOWLEDGE OR REASON TO KNOW THAT
THE UNITED STATES TAKES AFFIRMATIVE STEPS TO CONCEAL THE
INTELLIGENCE RELATIONSHIP INVOLVED, THAT PERSON HAS ACTED
WITH CULPABLE KNOWLEDGE. THIS KNOWLEDGE CAN BE DEMONSTRATED
WHEN THE PERSON MAKING A DISCLOSURE STATES AWARENESS THAT A
COVER EMPLOYMENT OR OTHER CONCEALED RELATIONSHIP IS INVOLVED.
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FINALLY, A STATUTE SHOULD REQUIRE PROOF THAT UNAUTHORIZED
DISCLOSURES BY THOSE WHO HAVE NOT HAD AN EMPLOYMENT OR OTHER
RELATIONSHIP OF TRUST WITH THE UNITED STATES WERE MADE WITH
A SPECIFIC INTENT TO IMPAIR OR IMPEDE THE NATION'S FOREIGN
INTELLIGENCE ACTIVITIES. THIS REQUIREMENT WOULD BE FOR THE
PROTECTION OF THOSE WHO MIGHT CLAIM THEY HAVE MADE A PUBLIC
DISCLOSURE FOR A LEGITIMATE PURPOSE, ALTHOUGH I BELIEVE
CONGRESS SHOULD DETERMINE IF THERE ARE ANY SUCH PURPOSES AND
MAKE PROVISION FOR THEM. FOR EXAMPLE, IF THE CONGRESS FINDS
THAT CURRENT REQUIREMENTS AND PROCEDURES FOR REPORTING
ALLEGATIONS OF ILLEGAL OR IMPROPER ACTIVITY BY INTELLIGENCE
EMPLOYEES MAY NOT BE SUFFICIENT TO DISCOVER SUCH ACTIVITY,
IT COULD PROVIDE IN STATUTE FOR DIRECT REPORTING TO THE
CONGRESS, OR TO THE ATTORNEY GENERAL, OR EVEN TO THE PRESIDENT.
IN THIS WAY IT COULD BE MADE CLEAR THAT THERE IS NO JUSTIFI-
CATION FOR THE PUBLIC DISCLOSURE OF PROTECTED INTELLIGENCE
IDENTITIES.
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IN MY VIEW H.R. 5615 GOES A LONG WAY TOWARD MEETING
THESE CRITERIA. IT IS A CAREFULLY CRAFTED AND NARROWLY
DRAWN MEASURE WHICH COMES TO GRIPS WITH THE FULL EXTENT OF
THE PROBLEM. THE COMMITTEE'S BILL WOULD GO FAR TOWARD
SAFEGUARDING VITAL INTELLIGENCE CAPABILITIES WITHOUT IMPARING
THE RIGHTS OF AMERICANS OR INTERFERING WITH CONGRESSIONAL
OVERSIGHT. IN THE OPINION OF THE AGENCY'S LAWYERS, THE BILL
WOULD MAKE POSSIBLE PROSECUTION OF THOSE WHO SEEK TO DESTROY
THE INTELLIGENCE CAPABILITIES OF THE UNITED STATES, WHILE
LEAVING UNTOUCHED LEGITIMATE CRITICISM OF THE INTELLIGENCE
COMMUNITY OR ITS ACTIVITIES. THERE ARE, HOWEVER, SEVERAL
IMPROVEMENTS TO THE BILL THAT I WOULD URGE YOU TO MAKE:
1? FIRST, THE DEPARTMENT OF JUSTICE, IN ITS
COMMENTS ON THE BILL, HAS SUGGESTED THAT PERSONS WHO
ARE NOT PRESENT OR FORMER INTELLIGENCE EMPLOYEES
SHOULD BE COVERED WHENEVER THE DISCLOSURE IS "BASED ON
CLASSIFIED INFORMATION." WE DO NOT THINK THAT THIS
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FORMULATION WOULD ADEQUATELY COVER ALL CASES, SINCE IN
MANY OF THE MOST EGREGIOUS CURRENT CASES A NEXUS TO
CLASSIFIED INFORMATION WOULD BE DIFFICULT TO PROVE
BEYOND A REASONABLE DOUBT. THUS, I CANNOT SUPPORT THIS
FORMULATION AS A SUBSTITUTE FOR SECTION 501(B). ON THE
OTHER HAND, I AM PERSUADED BY THE JUSTICE DEPARTMENT'S
ARGUMENTS THAT THERE MAY BE SOMES CASES IN WHICH THE
SPECIFIC INTENT TO IMPAIR OR IMPEDE U.S. INTELLIGENCE
ACTIVITIES WOULD BE DIFFICULT TO PROVE, BUT IN WHICH A
NEXUS TO CLASSIFIED INFORMATION WOULD NOT. IN ORDER TO
PROVIDE FULL COVERAGE, THEREFORE, I WOULD PROPOSE THAT
SECTION 501(B) BE REVISED TO PROVIDE TWO ALTERNATIVE
BASES FOR LIABILITY. ONE WOULD BE DISCLOSURE WITH THE
SPECIFIC INTENT TO IMPAIR OR IMPEDE THE FOREIGN
INTELLIGENCE ACTIVITIES OF THE UNITED STATES; THE OTHER
WOULD BE DISCLOSURE OF IDENTITIES "BASED ON CLASSIFIED
INFORMATION."
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2. A SECOND AREA REQUIRING IMPROVEMENT RELATES TO
THE PROSECUTION OF ACCOMPLICES AND CONSPIRATORS. AS
NOW DRAFTED H.R. 5615 WOULD BAR SUCH PROSECUTION IN ALL
CASES UNLESS THE ALLEGED ACCOMPLICE OR CONSPIRATOR
POSSESSED THE SPECIFIC INTENT TO IMPAIR OR IMPEDE THE
NATION'S FOREIGN INTELLIGENCE ACTIVITIES. I UNDERSTAND
AND AGREE WITH THE ADVISABILITY OF REQUIRING SUCH A
SPECIFIC INTENT IN THE CASE OF AN ACCOMPLICE OR CONSPIRATOR
TO VIOLATE SECTION 501(B) OF THE BILL. ON THE OTHER
HAND, I SEE NO REASON TO IMMUNIZE PERSONS WHO ASSIST OR
CONSPIRE WITH CURRENT OR FORMER EMPLOYEES OR OTHERS
HAVING AUTHORIZED ACCESS TO CLASSIFIED INFORMATION IN
THE COMMISSION OF AN OFFENSE UNDER SECTION 501(A).
WITH RESPECT TO THIS LATTER GROUP-OF ACCOMPLICES AND
CONSPIRATORS, THERE SHOULD NOT BE A SPECIFIC INTENT
REQUIREMENT.
3. H.R. 5615 DOES NOT COVER DISCLOSURE OF THE
IDENTITIES OF FORMER OFFICERS OR EMPLOYEES OF AN
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INTELLIGENCE AGENCY OR MEMBERS OF THE ARMED FORCES
FORMERLY ASSIGNED TO DUTY WITH AN INTELLIGENCE
AGENCY. TO BE EFFECTIVE THE LEGISLATION SHOULD EXTEND
TO THESE CATEGORIES OF PERSONS. MANY OFFICERS AND
EMPLOYEES RETIRE OR ARE SEPARATED UNDER COVER FOR A
VARIETY OF REASONS. DISCLOSURE OF THEIR FORMER INTELLI-
GENCE AGENCY AFFILIATION MAY PLACE THEM OR THEIR
FAMILIES IN PHYSICAL DANGER OR MAY SUBJECT THEM TO
HARASSMENT OR THREAT OF BODILY INJURY. MOREOVER, THERE
ARE VERY REAL COUNTERINTELLIGENCE REASONS FOR MAINTAINING
COVER. IN MANY INSTANCES THE INDIVIDUAL'S CONTACTS AND
SOURCES MAY STILL BE IN PLACE AND ACTIVE. SUCH A
NETWORK MAY HAVE BEEN PASSED ON TO THE FORMER OFFICER'S
SUCCESSOR. SHOULD THE FORMER INDIVIDUAL'S RELATIONSHIP
BE REVEALED, THE ENTIRE NETWORK MAY BE COMPROMISED.
ACCORDINGLY, IN THOSE CASES WHERE SUCH RELATIONSHIPS
REMAIN OTHERWISE CONCEALED AND WHERE THE UNITED STATES
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CONTINUES TO TAKE AFFIRMATIVE MEASURES TO KEEP THEM
CONCEALED, UNAUTHORIZED DISCLOSURES SHOULD WARRANT
ATTACHMENT OF CRIMINAL LIABILITY.
MR. CHAIRMAN, THERE IS A PRESSING NEED FOR EFFECTIVE
LEGISLATION TO DISCOURAGE UNAUTHORIZED DISCLOSURES OF
INTELLIGENCE IDENTITIES. THE CREDIBILITY OF OUR COUNTRY IN
ITS RELATIONSHIPS WITH FOREIGN LIAISON SERVICES AND AGENT
SOURCES, THE PERSONAL SAFETY AND WELL-BEING OF PATRIOTIC
AMERICANS SERVING THEIR COUNTRY, AND THE PROFESSIONAL
EFFECTIVENESS AND MORALE OF OUR COUNTRY'S INTELLIGENCE
OFFICERS ARE ALL AT STAKE.
AS MATTERS NOW STAND THE INTENTIONAL EXPOSURE OF COVERT
INTELLIGENCE PERSONNEL WITH IMPUNITY IMPLIES A GOVERNMENTAL
POSITION OF NEUTRALITY. IT SUGGESTS THAT U.S. INTELLIGENCE
OFFICERS ARE "FAIR GAME" FOR THOSE MEMBERS OF THEIR OWN
SOCIETY WHO TAKE ISSUE WITH THE EXISTENCE OF CIA OR FIND
OTHER PERVERSE MOTIVES FOR MAKING THESE UNAUTHORIZED DISCLOSURES.
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SPECIFIC STATUTORY PRO,-HIBITIOIN OF SUCH ACTION IS CRITICAL TO
THE MAINTENANCE OF AN EFFECTIVE FOREIGN INTELLIGENCE SERVICE.
IT IS IMPERATIVE THAT A MESSAGE BE SENT THAT THE UNAUTHORIZED
DISCLOSURE OF INTELLIGENCE IDENTITIES IS INTOLERABLE.
I SINCERELY APPRECIATE YOUR GENUINE CONCERN ABOUT OUR
INTELLIGENCE CAPABILITIES AND WHOLEHEARTEDLY SUPPORT YOUR
EFFORTS TO DEAL WITH THIS SERIOUS PROBLEM. I ENCOURAGE YOU
TO PROCEED TO REPORT LEGISLATION THAT WILL PROVIDE AN
EF=FECTIVE REMEDY. I BELIEVE EFFECTIVE LEGISLATION TO
PROTECT INTELLIGENCE CAN AND SHOULD BE A KEY PART OF THE
FOUNDATION FOR THE REVITALIZATION OF OUR NATION'S FOREIGN
INTELLIGENCE CAPABILITIES.
WE HAVE SUPPLIED THE COMMITTEE WITH SOME SUGGESTED
DRAFTING CHANGES IN H.R. 5615. MR. SILVER AND MR. HITZ
WILL BE HAPPY TO DISCUSS THESE MATTERS IN GREATER DETAIL OR
TO ANSWIER ANY QUESTIONS YOU MAY HAVE ON THEM.
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ANNEX TO THE STATEMENT OF
DEPUTY DIRECTOR OF CENTRAL INTELLIGENCE
FRANK C. CARLUCCI
PROPOSED MODIFICATIONS TO H.R. 5615
1. Add a new subsection (c) to Section 501, as follows:
(c) Whoever discloses to any individual not
authorized to receive classified information any
information that--
(1) identifies as an officer or employee of
an intelligence agency, or as a member of the
Armed Forces assigned to duty with an intelligence
agency, any individual (A) who in fact is or has
been such an officer, employee, or member, (B)
whose identity as such an officer, employee, or
member is classified information; or
(2) identifies as being or having been an
agent of, or informant or source of operational
assistance to, an intelligence agency any individual
(A) who in fact is or has been such an agent,
informant, or source, and (B) whose identity as
such an agent, informant, or source is classified
information,
knowing or having reason to know that the information
disclosed so identifies such individual, is based upon
classified information, and that the United States is
taking affirmative-measures to conceal such individual's
intelligence relationship to the United States, shall
be fined not more than $5,000 or imprisoned not more
than one year, or both.
2. Amend Section 502(b) to read as follows:
(b) No person shall be subject to prosecution
under subsection 501(b) by virtue of section 2 or 3 of
title 18, United States Code, or shall be subject to
prosecution for conspiracy to commit an offense under
such subsection unless that person has acted with the
intent to impair or impede the foreign intelligence
activities of the United States.
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3. Amend subsections 501(a)(1) and (b)(1) as follows:
a. In subsection 501(a)(1) on line 13, add after "is"
the words "or has been" and delete on lines 15-18 the words
"and (C) who is serving outside the United States or has
within the last five years served outside the United States."
b. In subsection 501(b)(1) on line 18, add after "is"
the words "or has been" and delete on lines 20-23 the words
"and (C) who is serving outside the United or has within
the last five years served outside the United States."
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SUMMARY OF STATEMENT
MR. CHAIRMAN:
I START THIS MORNING FROM THE PREMISE THAT OUR EFFORTS
TO COLLECT INFORMATION ABOUT THE PLANS AND INTENTIONS OF OUR
POTENTIAL ADVERSARIES CANNOT BE EFFECTIVE IN A CLIMATE THAT
CONDONES REVELATION OF THE MEANS BY WHICH THOSE EFFORTS ARE
CONDUCTED. INDEED, THE IMPUNITY WITH WHICH MISGUIDED
INDIVIDUALS CAN DISCLOSE OUR UNDERCOVER OFFICERS AND EMPLOYEES
AND OUR FOREIGN AGENTS AND SOURCES HAS HAD A HARMFUL EFFECT
ON HUMAN INTELLIGENCE COLLECTION AND OTHER ASPECTS OF OUR
INTELLIGENCE PROGRAM AS WELL. EQUALLY SIGNIFICA14T IS THE
INCREASED RISK AND DANGER SUCH DISCLOSURES POSE TO THE MEN
AND WOMEN WHO ARE SERVING THE UNITED STATES IN DIFFICULT
ASSIGNMENTS ABROAD. IT IS OUTRAGEOUS THAT DEDICATED PEOPLE
ENGAGED OR ASSISTING IN U.S. FOREIGN INTELLIGENCE ACTIVITIES
CAN BE ENDANGERED BY A FEW INDIVIDUALS WHOSE AVOWED PURPOSE IS
TO DESTROY THE EFFECTIVENESS OF ACTIVITIES AND PROGRAMS DULY
AUTHORIZED BY THE CONGRESS.
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THE DISTINGUISHED CHAIRMAN OF THIS COMMITTEE ELOQUENTLY
EXPRESSED THE ESSENCE OF THE PROBLEM IN A RECENT LETTER TO
THE EDITOR OF THE NEW YORK TIMES. CHAIRMAN BOLAND WROTE AS
FOLLOWS:
"THE OPERATING HEART OF ANY SERVICE IS THE USE OF
UNDERCOVER AGENTS AND OFFICERS OVERSEAS TO COLLECT
INTELLIGENCE INFORMATION. OBVIOUSLY, IF THE NAMES OF
THESE PEOPLE ARE SPREAD UPON THE PUBLIC RECORD THEIR
USEFULNESS IS ENDED AND THE EFFECTIVENESS OF THE
CLANDESTINE SERVICE IS DESTROYED ? ? ? UNAUTHORIZED
DISCLOSURE OF THE NAMES OF UNDERCOVER INTELLIGENCE
AGENTS IS A MISGUIDED ACT THAT SERVES NO USEFUL INFORMING
FUNCTION WHATSOEVER. IT DOES NOT ALERT US TO ABUSES;
IT DOES NOT BRING CLARITY TO ISSUES OF NATIONAL POLICY;
IT DOES NOT ENLIGHTEN PUBLIC DEBATE; AND IT DOES NOT
CONTRIBUTE ONE IOTA TO THE GOAL OF AN EDUCATED AND
INFORMED ELECTORATE. WHAT IT DOES DO IS PLACE LIVES IN
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DANGER AND CRIPPLE OUR EFFORTS TO COLLECT TIMELY AND
ACCURATE INTELLIGENCE, THE SINA QUA NON FOR THE EFFECTIVE
CONDUCT OF FOREIGN AFFAIRS. WHATEVER THE MOTIVES OF
THOSE ENGAGED IN SUCH ACTIVITY THE ONLY RESULT IS
COMPLETE DISRUPTION OF OUR LEGITIMATE INTELLIGENCE
COLLECTION PROGRAMS, PROGRAMS THAT BEAR THE IMPRIMATUR
OF THE CONGRESS, THE PRESIDENT AND THE AMERICAN PEOPLE.
SUCH A RESULT BENEFITS NO ONE BUT OUR ADVERSARIES."
MR. CHAIRMAN, THOSE WHO SEEK TO DESTROY THE INTELLIGENCE
ACTIVITIES OF THE UNITED STATES HAVE PROPAGATED A NUMBER OF
FALLACIES. UNFORTUNATELY SOME OF THESE HAVE FOUND THEIR
WAY INTO DISCUSSIONS OF H.R. 5615 IN THE PRESS AND ELSEWHERE.
ONE OF THESE FALLACIES IS THAT ACCURATE IDENTIFICATION
OF CIA PERSONNEL UNDER COVER CAN BE MADE MERELY BY CONSULTING
PUBLICLY AVAILABLE DOCUMENTS, LIKE THE STATE DEPARTMENT'S
BIOGRAPHIC REGISTER, AND THEREFORE THE BILL WOULD IMPINGE
ON DISCUSSION OF INFORMATION THAT IS IN THE PUBLIC
DOMAIN. THIS IS UNTRUE. A SECOND FALLACY IS SO
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RIDICULOUS THAT I WOULD NOT MENTION IT EXCEPT THAT IT HAS
CROPPED UP REPEATEDLY IN DISCUSSION OF THIS MATTER. THAT IS
THAT SOMEONE MAY ENGAGE, IN GOOD FAITH, IN THE PUBLIC
DISCLOSURE OF INTELLIGENCE IDENTITIES IN ORDER TO IMPROVE
THE SECURITY PRACTICES OF OUR INTELLIGENCE AGENCIES.
A THIRD FALLACY IS THAT THOSE WHO SEEK THE DESTRUCTION
OF THE NATION'S INTELLIGENCE ACTIVITIES CANNOT BE DISTINGUISHED
FROM SINCERE CRITICS OF THE CIA OR OTHER INTELLIGENCE
AGENCIES AND ACTIVITIES.
THAT THE UNAUTHORIZED DISCLOSURE OF THE IDENTITIES OF
INDIVIDUALS ENGAGED OR ASSISTING IN THE FOREIGN INTELLIGENCE
ACTIVITIES OF THE UNITED STATES HAS DAMAGED OUR NATION'S
FOREIGN INTELLIGENCE GATHERING CAPABILITIES IS BEYOND
QUESTION. OBVIOUSLY, SECURITY CONSIDERATIONS PRECLUDE MY
CONFIRMING OR DENYING SPECIFIC INSTANCES OF PURPORTED
IDENTIFICATION OF U.S. INTELLIGENCE PERSONNEL. SUFFICE IT
TO SAY THAT A SUBSTANTIAL NUMBER OF THESE DISCLOSURES HAVE
BEEN ACCURATE. THE DESTRUCTIVE EFFECTS OF THESE DISCLOSURES
HAVE BEEN VARIED AND WIDE-RANGING.
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OUR RELATIONS WITH FOREIGN SOURCES OF INTELLIGENCE
HAVE BEEN IMPAIRED. NEARLY ALL MAJOR FOREIGN INTELLIGENCE
SERVICES WITH WHICH WE HAVE LIAISON RELATIONSHIPS HAVE
UNDERTAKEN REVIEWS OF THEIR RELATIONS WITH US. WE ARE
INCREASINGLY BEING ASKED TO EXPLAIN HOW WE CAN GUARANTEE THE
SAFETY OF INDIVIDUALS WHO COOPERATE WITH US WHEN WE CANNOT
PROTECT OUR OWN OFFICERS FROM EXPOSURE. YOU CAN IMAGINE THE
CHILLING EFFECT IT MUST HAVE ON A SOURCE TO ONE DAY DISCOVER
THAT THE INDIVIDUAL WITH WHOM HE HAS BEEN IN CONTACT HAS
BEEN OPENLY IDENTIFIED AS A CIA OFFICER.
THE PROFESSIONAL EFFECTIVENESS OF OFFICERS SO COMPROMISED
IS SUBSTANTIALLY AND SOMETIMES IRREPARABLY DAMAGED. THEY
MUST REDUCE OR BREAK CONTACT WITH SENSITIVE COVERT SOURCES.
CONTINUED CONTACT MUST BE COUPLED WITH INCREASED DEFENSIVE
MEASURES THAT ARE INEVITABLY MORE COSTLY AND TIME-CONSUMING.
SOME OFFICERS MUST BE REMOVED FROM' THEIR ASSIGNMENTS AND
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RETURNED FROM OVERSEAS AT SUBSTANTIAL COST. YEARS OF
IRREPLACEABLE AREA EXPERIENCE AND LINGUISTIC SKILL ARE LOST.
REASSIGNMENT MOBILITY OF THE COMPROMISED OFFICER IS IMPAIRED.
AS A RESULT, THE POOL OF EXPERIENCED CIA OFFICERS IS BEING
REDUCED. SUCH LOSSES ARE DEEPLY FELT IN VIEW OF THE FACT
THAT, IN COMPARISON WITH THE INTELLIGENCE SERVICES OF OUR
ADVERSARIES, WE ARE NOT A LARGE ORGANIZATION. REPLACEMENT
OF OFFICERS THUS COMPROMISED IS DIFFICULT AND, IN SOME
CASES, IMPOSSIBLE. ONCE AN OFFICER'S IDENTITY IS DISCLOSED,
MOREOVER, COUNTERINTELLIGENCE ANALYSIS BY ADVERSARY SERVICES
ALLOWS THE OFFICER'S PREVIOUS ASSIGNMENTS TO BE SCRUTINIZED,
PRODUCING AN EXPANDED PATTERN OF COMPROMISE THROUGH ASSOCIATION.
SUCH DISCLOSURES ALSO SENSITIZE HOSTILE SECURITY SERVICES
AND FOREIGN POPULATIONS TO CIA PRESENCE, MAKING OUR JOB FAR
MORE DIFFICULT. FINALLY, SUCH DISCLOSURES CAN PLACE INTELLI-
GENCE PERSONNEL AND THEIR FAMILIES IN PHYSICAL DANGER FROM
TERRORIST OR VIOLENCE-PRONE ORGANIZATIONS.
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IN A TIME WHEN HUMAN SOURCES OF INTELLIGENCE ARE OF
CRITICAL IMPORTANCE, THERE CAN BE NO DOUBT THAT UNAUTHORIZED
DISCLOSURES OF THE IDENTITIES OF OUR OFFICERS, AGENTS, AND
SOURCES CONSTITUTE A SERIOUS THREAT TO OUR NATIONAL SECURITY.
CURRENT LAW HAS PROVEN TO BE INADEQUATE IN DETERRING THESE
UNAUTHORIZED DISCLOSURES, AND THEY CONTINUE TO BE MADE WITH
VIRTUAL IMPUNITY. THE NET RESULT IS A DAMAGED INTELLIGENCE
CAPABILITY AND REDUCED NATIONAL SECURITY.
'MR? CHAIRMAN, I BELIEVE THAT LEGISLATION IN THIS AREA,
TO BE EFFECTIVE, SHOULD CONTAIN CERTAIN KEY DISTINCTIONS AND
ELEMENTS. -FIRST, IT SHOULD HOLD CURRENT AND FORMER EMPLOYEES
AND OTHERS WITH AUTHORIZED ACCESS TO PROTECTED INFORMATION
TO A HIGHER STANDARD THAN PERSONS WHO HAVE NOT HAD SUCH
ACCESS.
SECONDLY, THE LEGISLATION SHOULD REQUIRE PROOF THAT A
DISCLOSURE IS MADE WITH CULPABLE KNOWLEDGE, OR WITH KNOWLEDGE
OF SUFFICIENT FACTS TO MAKE THE AVERAGE PERSON AWARE OF THE
NATURE AND GRAVITY OF HIS ACTIONS. THIS IS All IMPORTANT
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ELEMENT BECAUSE IT MUST DESCRIBE A STATE OF MIND WHICH WILL
SUPPORT THE ATTACHMENT OF CRIMINAL SANCTION, WHILE AT THE
SAME TIME BE CAPABLE OF PROOF IN THOSE DISCLOSURE CASES
WHICH HAVE BEEN DAMAGING.
FINALLY, A STATUTE SHOULD REQUIRE PROOF THAT UNAUTHORIZED
DISCLOSURES BY THOSE WHO HAVE NOT HAD AN EMPLOYMENT OR OTHER
RELATIONSHIP OF TRUST WITH THE UNITED STATES WERE MADE WITH
A SPECIFIC INTENT TO IMPAIR OR IMPEDE THE NATION'S FOREIGN
INTELLIGENCE ACTIVITIES.
IN MY VIEW H.R. 5615 GOES A LONG WAY TOWARD MEETING
THESE CRITERIA. IT IS A CAREFULLY CRAFTED AND NARROWLY
DRAWN MEASURE WHICH COMES TO GRIPS WITH THE FULL EXTENT OF
THE PROBLEM. THE COMMITTEE'S BILL WOULD GO FAR TOWARD
SAFEGUARDING VITAL INTELLIGENCE CAPABILITIES WITHOUT IMPARING
THE RIGHTS OF AMERICANS OR INTERFERING WITH CONGRESSIONAL
OVERSIGHT. IN THE OPINION OF THE AGENCY'S LAWYERS, THE BILL
WOULD MAKE POSSIBLE PROSECUTION OF THOSE WHO SEEK TO DESTROY
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THE INTELLIGENCE CAPABILITIES OF THE UNITED STATES, WHILE
LEAVING UNTOUCHED LEGITIMATE CRITICISM OF THE INTELLIGENCE
COMMUNITY OR ITS ACTIVITIES. THERE ARE, HOWEVER, SEVERAL
IMPROVEMENTS TO THE BILL THAT I WOULD URGE YOU TO MAKE:
1. I AM PERSUADED BY THE JUSTICE -DEPARTMENT'S
ARGUMENTS THAT THERE MAY BE SOMES CASES IN WHICH THE
SPECIFIC INTENT TO IMPAIR OR IMPEDE U.S. INTELLIGENCE
ACTIVITIES WOULD BE DIFFICULT TO PROVE, BUT IN WHICH A
NEXUS TO CLASSIFIED INFORMATION WOULD NOT. IN ORDER TO
PROVIDE FULL COVERAGE, THEREFORE, I WOULD PROPOSE THAT
SECTION 501(8) BE REVISED TO PROVIDE TWO ALTERNATIVE
BASES FOR LIABILITY. ONE WOULD BE DISCLOSURE WITH THE
SPECIFIC INTENT TO IMPAIR OR IMPEDE THE FOREIGN
INTELLIGENCE ACTIVITIES OF THE UNITED STATES; THE OTHER
WOULD BE DISCLOSURE OF IDENTITIES "BASED ON CLASSIFIED
INFORMATION."
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2. A SECOND AREA REQUIRING IMPROVEMENT RELATES
TO THE PROSECUTION OF ACCOMPLICES AND CONSPIRATORS.
I SEE NO REASON TO IMMUNIZE PERSONS WHO ASSIST OR
CONSPIRE WITH CURRENT OR FORMER EMPLOYEES OR OTHERS
HAVING AUTHORIZED ACCESS TO CLASSIFIED INFORMATION
IN THE COMMISSION OF AN OFFENSE UNDER SECTION 501(A).
WITH RESPECT TO THIS GROUP OF ACCOMPLICES AND
CONSPIRATORS, THERE SHOULD NOT BE A SPECIFIC INTENT
REQUIREMENT.
3. H.R. 5615 DOES NOT COVER DISCLOSURE OF THE
IDENTITIES OF FORMER OFFICERS OR EMPLOYEES OF AN
INTELLIGENCE AGENCY OR MEMBERS OF THE ARMED FORCES
FORMERLY ASSIGNED TO DUTY WITH AN INTELLIGENCE
AGENCY. TO BE EFFECTIVE THE LEGISLATION SHOULD EXTEND
TO THESE CATEGORIES OF PERSONS.
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MR. CHAIRMAN, THERE IS A PRESSING NEED FOR EFFECTIVE
LEGISLATION TO DISCOURAGE UNAUTHORIZED DISCLOSURES OF
INTELLIGENCE IDENTITIES. THE CREDIBILITY OF OUR COUNTRY IN
ITS RELATIONSHIPS WITH FOREIGN LIAISON SERVICES AND AGENT
SOURCES, THE PERSONAL SAFETY AND WELL-BEING OF PATRIOTIC
AMERICANS SERVING THEIR COUNTRY, AND THE PROFESSIONAL
EFFECTIVENESS AND MORALE OF OUR COUNTRY'S INTELLIGENCE
OFFICERS ARE ALL AT STAKE;
AS MATTERS NOW STAND THE INTENTIONAL EXPOSURE OF COVERT
INTELLIGENCE PERSONNEL WITH IMPUNITY IMPLIES A GOVERNMENTAL
POSITION OF NEUTRALITY. IT SUGGESTS THAT U.S. INTELLIGENCE
OFFICERS ARE "FAIR GAME" FOR THOSE MEMBERS OF THEIR OWN
SOCIETY WHO TAKE ISSUE WITH THE EXISTENCE OF CIA OR FIND
OTHER PERVERSE MOTIVES FOR MAKING THESE UNAUTHORIZED DISCLOSURES.
SPECIFIC STATUTORY PROHIBITION OF SUCH ACTION IS CRITICAL TO
THE MAINTENANCE OF AN EFFECTIVE FOREIGN INTELLIGENCE SERVICE.
IT IS IMPERATIVE THAT A MESSAGE BE SENT THAT THE UNAUTHORIZED
DISCLOSURE OF INTELLIGENCE IDENTITIES IS INTOLERABLE.
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I SINCERELY APPRECIATE YOUR GENUINE CONCERN ABOUT OUR
INTELLIGENCE CAPABILITIES AND WHOLEHEARTEDLY SUPPORT YOUR
EFFORTS TO DEAL WITH THIS SERIOUS PROBLEM. I ENCOURAGE YOU
TO PROCEED TO REPORT LEGISLATION THAT WILL PROVIDE AN
EFFECTIVE REMEDY. I BELIEVE EFFECTIVE LEGISLATION TO
PROTECT INTELLIGENCE CAN AND SHOULD BE A KEY PART OF THE
FOUNDATION FOR THE REVITALIZATION OF OUR NATION'S FOREIGN
INTELLIGENCE CAPABILITIES.
WE HAVE SUPPLIED THE COMMITTEE WITH SOME SUGGESTED
DRAFTING CHANGES IN H.R. 5615. MR. SILVER AND MR. HITZ
WILL BE HAPPY TO DISCUSS THESE MATTERS IN GREATER DETAIL OR
TO ANSWER ANY QUESTIONS YOU MAY HAVE ON THEM.
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