# HEARING ON S.391 INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981

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Document Number (FOIA) /ESDN (CREST):
CIA-RDP83M00210R000300060015-2
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RIFPUB
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K
Document Page Count:
148
Document Creation Date:
December 20, 2016
Document Release Date:
February 28, 2007
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15
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Publication Date:
May 8, 1981
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REPORT
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5.57 MB
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Approved For Release 2007/(QMTRA40 '3 M Subcommittee on Security and Terrorism of the COMMITTEE ON THE JUDICIARY UNITED STATES SENATE HEARING ON S. 391 INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981 WASHINGTON, D. C. May 8, 1981 1' ~, / ~N a T M0i,1.: 1' J__ KIT 4I .v-., S .id. 'nay" C=:S Ta C C=S . (23Z.) 5_4-234= roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 N 7 C O N T E N T S The Honorable John H. Chafee, A United States Senator from The State of Rhode Island William J. Casey, Director, United States Central Intelligence Agency; --accompanied by-- John H. Stein, Associate Deputy Director for Operations, CIA; and Fred Hitz, Legislative Counsel, CIA Richard K. Willard, Esq., Counsel for Intelligence Policy, United States Department of Justice 12 11 Morton H. Halperin, Center for National Security Studies, Z Jerry J. Berman, w 'A _II T-egislative Counsel, American Civil Liberties Union y 11 Julin N. Maury, President, The Association of Former Intelligence officers; 17 --accompanied by-- it j onn S. Warner, i8 Legal Advisor, AFIO 19 M ALDERSON REPORTING COMPANY, INC. Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83M00210R000300060015-2 Hearing on .S. 391 INTELLIGENCE IDENTITIES PROTECTION ACT OF 1981 5 FRIDAY, MAY 8, 1981 United States Senate, Committee on the Judiciary, Subcommittee on Security and Terrorism, Washington, D. C. The subcommittee met, pursuant to notice, at 9:38 a.m., in Room 2228 of the Everett McKinley Dirksen Senate Office ?gilding, the Honorable Jeremiah Denton (Chairman of the 15 Subcommittee) presiding. Present: Senators Denton, Thurmond, East, Biden, and 17 Leahy. 18 - - - 19 Senator Dentonz The hearing will come to order. 20 The subject of the Subcommittee on Security and 21 Terrorism hearing this morning is the Intelligence 22 Identities Protection Act of 1981, Senate Bill 391. 23 Before proceeding further, I would like to recognize 24 the presence of the distinguished Chairman of the overall 25 Committee, a man who has my great admiration and tc whcse 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 leadership I look daily, my distinguished colleague from 2 South Carolina, Senator Strom Thurmond. 3 Senator Thurmond. Thank you very much, Mr. Chairman, 4 for your kind words. 5 Mr. Chairman, I would like to commend you for the 6 expeditious manner in which you have handled setting up this 7 hearing. 8 As a co-sponsor.of this necessary piece of legislation, 9 I believe it is imperative that we act quickly but 10 effectively to see that this matter is given a full and fair 11 hearing. It is also necessary that parties with special 12 concerns be heard and their views weighed by the 13 subcommittee. '4 We must, however, keep in mind the special needs of the 1-9 brave and unsung emloyees of the intelligence agencies of -16 this Country. We must remember, too, that uninformed 17 policymakers cannot properly serve the people, and without 18 the information these employees provide, policy will suffer. T9 This bill aims at protecting the identities of those 20 individuals whose anonymity serves the interest of the 21 Country. .Moveover, this legislation would ensure an 22 appropriate balance between individual rights and the 23 absolute necessity for secrecy in intelligence collection 24 vital to the Nation's security. 25 Mr. Chairman, I shall not be able to stay throughout ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01  CIA-RDP83MOO21OR000300060015-2 1 the whole hearing, as I have a bill coming up in the Senate 2 in a few minutes; but I want to take this opportunity to 3 welcome the head of the CIA here this morning, Mr. Casey, 4 who is an experienced, well-versed man on intelligence 5 matters. I would also like to join in welcoming to this 7 committee the distinguished Senator from Rhode Island, my 8 good friend Senator Chafee. 9 Thank you, Mr. Chairman. 10 Senator Denton: Thank you very much, Mr. Chairman. I _"~ know how busy you are as President Pro Tem of the Senate, 12 and with'the many bills you are managing in the Senate. We would like to welcome my distinguished colleague, -nator Leahy, who has a great deal of background in this 15 subject and has in his experience with the Select Committee It and other committees on which we happen to serve together 17 shown me how much he is going to help us in the future as he 18 has in the past. After I welcome the witnesses, I will ask 19 y._- for anything you care to say, sir. 20 Our witnesses I will introduce one at a time, and then 21 ask them to take their positions. First, we already have in 22 the witness chair the Honorable John H. Chafee, Senator from 23 Rhode Island, who actually sponsored this bill and who has 24 urged us not to waste any time in getting to it; and I 25 assure you, John, that we have not. We have had a 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Department of Justice review of the bill in which certain 2 things were questioned, and we have gotten to it as quickly 3 as we could. We have William J. Casey, the Director of the Central 5 Intelligence Agency; Richard K. Willard, Counsel for 6 Intelligence Policy, Department of Justice; Morton H. 7 Halperin, Director, Center for National Security Studies, 8 American Civil Liberties Union; Jerry J. Berman, Legislative 9 Counsel, American Civil Liberties Union; and John M. Maury, 10 President, Association of Former Intelligence Officers. You will be seeing them one at a time as they come up. 12 Welcome t I will make my opening statement, and then proceed. In this subcommittee's previous hearing on Friday, 15 April 24, 1981, which was devoted to the origins, 16 directions, and support of terrorism, all of the witnesses 17 testified regarding past and present Soviet and surrogate 18 support for international terrorism. It is relevant to see 19 the expulsion of the Lybian Embassy personnel which took 20 place only yesterday. 2f In reviewing the media coverage which ensued after our 22 last hearing, I was disappointed, to say the least, that 23 some of those journalists covering the hearing seemed to 24 miss the central thrust of the testimony. They tended to 25 focus on an apparent lack of evidence of Soviet 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 ooroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR00030006QO 15-2 1-masterminding of international terrorism, a point of view to 2 which no one connected with this hearing has ever subscribed. 4 "disappointed" by a lack of evidence shoving Soviet 5 masterminding of this pernicious activity is to misrepresent 6 my views, which I have repeatedly articulated. And it seems 7 curious that that alleged "disappointment" for many 8 reporters was the number one news "fact," which was reported. Since my personal views have been so variously reported 10 in the press, I feel compelled to state again for the record 11 that it is the intention of the subcommittee to hold 12 hearings to examine judiciously the extent to which 13 terrorism poses a threat to the security of the United States. We have not prejudged this matter. We are and we 19 will remain sensitive to the need to search out the evidence 16 and to deal with it responsibly. 17 There were many elements of the media that reported the 18 hearings objectively, but superficial report of this type is 19 sufficiently widespread to cause 'me concern that the 20 American people are not being well informed. 21 I am convinced by my own experiences that there is an 22 irrefutable link between terrorism and national security. 23 This has been demonstrated time and again in those countries 24 whose survival is crucial to our own security. Turkey, the 25 Federal Republic of Germany, South Korea, and South Africa 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Aiaproved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 are current examples. Similarly, the protection of covert 2 sources has a direct bearing on our own national security 3 through,our ability to monitor terrorist and other 4 activities worldwide. Therefore, with this in mind, the Subcommittee on 6 Security and Terrorism today undertakes a most important 7 task: An examination of provisions of S. 391 which is a 8 bill to amend the National Security Act of 1947 to prohibit 9 the unauthorized disclosure of information identifying 10 certain United States intelligence officers, agents, 11 informants, and sources; and to direct the President to establish procedures to protect the secrecy of these intelligence relationships. Events transpiring in the world continue to demonstrate that it is absolutely essential that our country maintain a 1 strong and effective intelligence apparatus in order to 17 ensure that our national security is maintained unimpaired. 18 Human collection sources of intelligence are of vital 13 importance to the success of this overall effort. It would 20 follow, therefore, that unauthorized disclosures of 21information identifying individuals engaged in, or assisting 22 in our Country's foreign intelligence activities, are 23 undermining the intelligence community's human source 24 collection capabilities and exposing to needless dangers the 25 lives of our intelligence officers in the field. ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 The disclosure of the identity of a covert agent is an 2 immoral act which cannot be tolerated. It has no relation 3 whatsoever to speaking out against government programs which 4 are wasteful. It in no way bears a relationship to the 5 whistle-blower who seeks to enhance his government's ability 6 to perform more efficiently by bringing to the attention of 7 those in responsible positions deficiencies such as fraud or 8 waste in the agency in which the whistle-blower serves. 9 No. The reprehensible activities, the commission of 10 which this bill is designed to criminalize, have repeatedly 11 exposed honorable public servants to personal peril and 12 vastly reduced their effectiveness in pursuing their 13 endeavors. The insensitivity and moral degeneracy on the 14 part of those who seek to undermine the effectiveness of our 15 intelligence capability is so inimical to our American 16 democratic system that it seems, to me at least, that much 17 of what we are prepared to do today should be totally 18 unnecessary; and it is indeed unfortunate that this is not 19 the case. 20 While in a free society we must welcome public debate 21 concerning the role of the intelligence community as well as 22 that of other components of our government, the 23 irresponsible and indiscriminate disclosure of names and 24 cover identifies of covert agents serves no salutory purpose 25 whatsoever. 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 As elected public officials, we have a duty consistent 2 with our oaths of office to uphold the Constitution and to 3 demonstrate our support for the men and women of the United 4 States intelligence service who perform duties on behalf of 5 their country, often at great personal risk and sacrifice, a 6 service vital to our national defense. Extensive hearings before the House and Senate 8 Intelligence Committees have documented these pernicious 9 effects. The underlying basic issue is our ability to 10 continue to recruit and retain human sources of intelligence 11 whose information may be crucial to the Nation's survival in 12 an increasingly dangerous world. No existing law clearly and specifically makes the 4 unauthorized disclosure of clandestine intelligence agents' 15 identities a criminal offense. Therefore, as matters now 16 stand the'impunity with which unauthorized disclosures of 17 intelligence identities can be made implies a governmental 18 position of neutrality in the matter. It suggests that the 19 U.S. intelligence officers are "fair game" for those members 20-of their own society who take issue with the existence of a 21 CIA or find other perverse motives for making these 22 unauthorized disclosures. 23 In the area of identities' protection, we must steer a 24 course carefully calculated between enormous interests: On 25 the one side we have the protection of a constitutional Approved For Release 2007/03/04554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 right of free speech; and on the other, the vital need to 2 protect the effectiveness of U.S. intelligence-gathering 3 around the world. 4 Today we will hear from six witnesses with varying 5 viewpoints who can enlighten us in this important area. Senator Leahy, before the questioning begins, would you 7 care to make an opening statement? Senator Leahy: Thank you, Mr. Chairman. I would like to make a brief one, and I compliment the 10 Chair on having hearings on what I think is an extremely ii important subject. I am delighted to see our colleague from 12 New England -- Southern New England -- Senator Chafee, who 13 has done yoman's service in this field in the Intelligence -' Committee and on the Floor of the Senate. Mr. Chairman, few Americans are ever going to be in a 16 position to assess the full extent of the extraordinary 17 contribution of our intelligence officers to the security of 18 our Nation. Perhaps because of the nature of their work-- 19 well, in fact, it is because of the nature of their work 20 that we will never be in a position to fully access it. 21 There can be no doubt, however, that the naming of names has resulted in the diminished effectiveness of our intelligence 23 efforts, and the loss of life. 24 The legislation before this committee effectively deals 25 with the violations of oath and good judgment by those who ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE.. S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 have had authorized access to classified information about covert agents. There is no First Amendment purpose to be served in assuring the rights of agents to violate their professional duties -- and I give these provisions my strongest support. Mr. Chairman, Section 601(c) of the bill tries to deal with information that has gotten beyond the parimeter of the 8 intelligence community, beyond the hands of those whose 9 silence we may require as a matter of contract. We do have a legitimate interest in protecting the security and effectiveness of the intelligence agents even where compromising information is in the hands of agency outsiders. But the standards cannot be standards growing 14 out of the notions of contract and duties; rather, standards 15 that examine the purpose of and intent of disclosure and 16 define "prohibited activity" with care. 17 The bill that does not clearly separate legitimate 18 discussion of the intelligence function in this country from 19 the purposeful and malicious naming of names could mean the 20 effective end of all meaningful discourse about 21~intelligence. ,The First Amendment has always been a very 22 down-to-earth concept for me. It means writing or speaking 23 without fear. And nothing would dampen honest expression 24 faster than confusion about the legal limits of that 25 expression. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 2007/03/01: CIA-RDP83MOO21 OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 If we adopt legislation that makes it perilous to write 2 about the CIA, or if the bill is so vague that the onlyisafe 3 course of action is to write nothing, not only is the public 4 the loser but I think our intelligence agencies are the 5 losers, also. What is true of other government agencies is 6 true of the intelligence agencies, they have to operate 7 poorly in a permanent vacuum. 8 There has been concern about the constitutionality of 9 Section 601(c) because it limits the use of information in 10 the public domain. While I share that concern, I recognize that there will be instances where information in the public 12 domain but not widely circulated can become dangerous to our 13 security if circulated with notoriety. 15 them with such precision that misunderstanding of the law's 16 intent would be difficult. Let us also recognize that this 17 bill will not by itself cure intelligence leaks. If the 18 identity of agents has come into the public domain, 19 somewhere the system has broken down. Our first job is not 20 to tamper with the First Amendment, but to fix the system 21 and make sure that the leaks do not occur in the first 22 place. 23 Resting on a strong system for ensuring adequate cover 24 for our intelligence agents, a bill like S. 391, carefully' 25 drafted, can immeasurably improve both the quality and the 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 security of our intelligence services. Unless carefully 2 done, however, the bill might fall short of the enforceable 3 protection we need, and yet weaken legitimate expression in 4 an area where the need for continuing dialogue has been 5 clearly demonstrated. I bear no truck with those who feel that they must and, 7 under the guise of whistle-blowing, run out and hold a press 8 conference and endanger the lives of agents either currently 9 fellow agents or previously fellow agents to get their point 10 across, now that we have provided legitimate areas for 11 whistle-blowers -- not only in legislation that I have 12 drafted that has been passed by previous Congresses, but in 13 the Senate, in this body at least, in the Senate Select 14 Committee on Intelligence, there is an easy, immediately 15 available area for people within any of the intelligence 16 agencies with legitimate gripes to come to us, and they will 17 be heard by a bi-partisan forum on relatively short notice 18 in as complete detail as they want. 19 That is a proper and appropriate forum for those people 20 who have been entrusted with the greatest and most delicate 21' secrets of our Nation. That is the proper and appropriate 22 method to take. I think that within our intelligence 23 community steps should be taken to ensure that that is the 24 way it is done. 25 In saying that, however, we should also be aware as a 400 VIRGINIA AVE., S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Nation that when steps are taken otherwise and people do 2 violate their oath of office, and when people do violate any 3 contractual obligations that they have undertaken, and 4 matters come before the public domain, we also as a Nation 5 have an absolute duty to protect the First Amendment rights 6 involved when something is out in the public domain. Let us continue to make everybody within the 8 intelligence agencies aware of the fact that we do have 9 legitimate areas for legitimate gripes to be aired without 10 steps that sometimes have to be seen really as 1 grandstanding, steps that may well endanger our whole system 12 and our whole Country. Thank you, Mr. Chairman. Senator Denton: ? Thank; you, Senator Leahy. Senator Leahy: I should also comment, Mr. Chairman, Ill that I am on another committee, Senator Helms' committee, 17 that has been having a markup of the farm bill.for two weeks 10 now, and at-some point this morning I will have to leave for I do this so that I can still with a straight face 20 say periodically, "being just a small-town boy, a country 21 lawyer," that I will go back to the Agriculture Committee. 22 So I just want the chair to know that I at some point will 23 have to be leaving. 24 Senator Denton: We are all familiar with that problem, 25 and we appreciate your presence here this morning for the 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO211OROOO3OO06OO15-2 1 time you are able to devote to it, Senator Leahy. 2 Senator Chafee, would you offer your opening statement, 3 please, sir? 4 5 21 For Release 2007/03/0?1?:CIA--RDP83MOO21O1 0683b~8.6' 2148_2) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 STATEMENT OF THE HONORABLE JOHN H. CHAFEE, A UNITED 2 STATES SENATOR FROM THE STATE OF RHODE ISLAND Senator Chafees Thank you, Mr. Chairman, and Members 4 of the Committees First I want to say that I appreciate a great deal, Mr. 6 Chairman and Members, that you have moved expeditiously with 7 this piece of legislation that I consider of great 8 importance. Mr. Chairman, S. 391 is essentially the same as S. 2216 10 as it was reported from the Senate Intelligence Committee in 11 August of last year by a vote of 13 to 1. The only changes 12 are the numbering of the title and the paragraphs. The purpose of the Intelligence Identities Protection 14 Act is to strengthen the intelligence capabilities of the 15 United States by prohibiting the unauthorized disclosure of 16 information identifying certain American intelligence 17 officers, agents, and sources of information. In short, the 18 bill places criminal penalties on those enemies of the ;J American intelligence community engaged in the pernicious 20 activity of naming names. 21 In my judgment, the governmental protection of the 22 identities of American intelligence officers is an idea 23 whose time has come and indeed it is long overdue. As has 24 been mentioned in previous remarks, others have made efforts 25 in this field. My colleague,ISenator Bentsen, introduced 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 bills which would accompish this purpose in 1976, 1977, 2 following the tragic murder of Richard Welch in Athens in 3 December of 1975. I might say, Mr. Chairman, that Richard Welch was born 5 and raised in Providence, Rhode Island. So I have a deep 6.personal, we well as an official interest in preventing the 7 reoccurrence of events such as that. In 1979, Representative Boland, Chairman of the House 9 Intelligence Committee, introduced a House bill which was 10 the predecessor of H.R. 4, which has been introduced this 11 year. In January of last year, S. 2216, the bill I 12 previously referred to, was introduced on the Senate side, 13 and its subsequent refinement and alteration is this bill we 14 are considering today, namely S. 391. Extensive hearings have been held on the issue of 16 intelligence identities protection in both the House and the 17 Senate Intelligence Committees, and before the Judiciary 18 Committee. The issues which this legislation involves have 19 been heard in detail, and the wording of S. 391 has been 20 carefully amended and refined in its current state. 21 The point I am making, Mr. Chairman and Members of the 22 Committee, is: This is no draft bill that we are submitting 23 that has been conjured out of thin air. This is the result 24 of a long, definite effort covering many years with hearings 25 in the Intelligence Committees in the House and the Senate 400 VIRGINIA AVE. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 on this subject. The Republican Party platform in 1981 contained a plank supporting legislation "to invoke criminal sanctions against anyone who discloses the identities of U.S. intelligence officers." Mr. William Casey and Admiral Turner have both publicly expressed their support for intelligence identities protection, and of course I am delighted that Mr. Casey will be testifying this morning. Our bill, this one we are considering today, is the only one to receive the endorsement of both the Reagan and the Carter Administrations' Justice' Departments. Support for this legislation also comes from-a broad, bi-partisan base of Senators with extensive knowledge and experience in intelligence and national security affairs. 15 This bill has currently 40 co-sponsors from both sides 16 of the aisle, 10 of whom are committee chairmen, and 30 of whom chair subcommittees. I am particularly pleased that 18 the distinguished Majority Leader, Senator Baker, is also an original co-sponsor of this bill, as well as Chairman 20 Thurmond and Chairman Goldwater of the Senate Intelligence 21 committee. 22 Mr. Chairman, the expeditious passage of this 23 legislation in my judgment is vital to the lives and safety 24 of those Americans who serve this Congress and this Nation 25 on difficult and dangerous missions abroad. ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 A roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Now, Mr. Chairman, opponents of this legislation 2 prevented its coming to the Floor of the Senate last year in 3 the closing hours. As a result, the 96th Congress completed 4 its business without offering us the opportunity for free 5 debate and vote. Since that time, I am told that the Covert 6 Action Information Bulletin has published additional names 7 of alleged covert agents, and their editors have traveled 8 abroad to pursue this pernicious activity. As a 9 consequence, six Americans were expelled from Mozambique 10 recently following charges of engaging in espionage there. 12 constitutuional issues of intelligence identities 13 legislation. The American Civil Liberties Union, for 14 example, recently referred to this sort of legislation as 15 violation of the First Amendment." And I am pleased that 16 they will be testifying this morning before this 17 subcommittee. 18 The section of the First Amendment to the Constitution that pertains to our discussion states that, "Congress shall 20 make no law ... abridging the freedom of speech, or of the 21 press ...". The first point that I wish to make with regard 22 to this amendment is the provisions of the Bill of Rights 23 cannot be applied with absolute literalness; but are subject 24 to exceptions. 25 It has long been recognized that the free speech clause 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 of the Constitution cannot wipe out common law regarding 2 obscenity, profanity, and the defamation of individuals. 3 This point was reiterated by Justice Oliver Wendell Holmes 4 in the classic Espionage Act decisions in 1919 when he 5 stated: "The First Amendment ... obviously was not intended to 7 give immunity for every possible use of language... . The 8 most stringent protection of free speech would not protect a 9 man in falsely shouting fire in a theater and causing a 10, panic." A second and equally important point is that if 12 unlimited. speech interferes with the legitimate purposes of 13 government, there must be some point at which the government 14 can step in. My uncle, Zechariah Chaf ee , who was the 15 leading defender of free speech during his 37 years at the 16 Harvard Law School, wrote in his book entitled Free Speech 17 in the United States as follows: "The true meaning of freedom of speech seems to be 19 this. One of the most important purposes of society and 20 government is the discovery and spreadh of truth on subjects 21 of general concern. This is possible only through 22 absolutely unlimited discussion... . Nevertheless, there 23 are other purposes of government, such as order, the 24 training of the young, protection against external 25 aggression. Unlimited discussion sometimes interferes with 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 these purposes, which must be balanced against freedom of 2 speech. 3 ..0 t o t th pu A- e matter another way, it is useless to define free speech by talk about rights. '... Your right to swing your arms ends just where the other man's nose begins.' "The true boundary line of the First Amendment can be 8 fixed only when Congress and the course realize that the 9 principle on which speech is classified as lawful or 10 unlawful involves the-balancing against each other of two 11 very important social interests, in public safety and in the 12 search for truth. "Thus, our problem of locating the boundary line of free speech is solved. It is fixed close to the point where i5 words will give rise to unlawful acts." It is evident, Mr. Chairman, that the activity of 17 "naming names" has given rise to unlawful acts, and that it 18 has endangered the lives and safety of American citizens 19 abroad. I have already mentioned the murder of Richard 20 Welch in Greece. I am sure you also know of the series of 21 assassination attempts in Kingston, Jamaica,lfollowing the 22 Covert Action Information Bulletin's publication of the 23 names of 15 alleged CIA officers there last year. What you 24 may not know -- and I think this is very important, Mr. 25 Chairman and "embers of the Committee -- is how terribly 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 those events have affected the lives of the American 2 officials involved, their wives, and their children. Mrs. Richard Kinsman, who wrote to me last year on this. 4 issue and vhose house was shot up as perhaps you know, in 5 Jamaica, in that instance, and whose letter I would like to 6 insert into the record, has since stated that her life has 7 been "terribly disrupted" by the assassination attempt on 8 her husband and her family. Her children, one of whose 9 bedrooms was riddled by machine gun bullets, "did not 10 understand why anyone would want to hurt them." The family has been forced to move several times for 12 reasons of their own personal safety, required to give up 13 jobs, sever friendships, withdraw from and re-enter schools, 14 and suffer long periods of separation. They also wonder 15 whether they will ever travel abroad again for any purpose. 17 target of an assassination attempt in Jamaica last year was 18 hospitalized for stress disorders following the incident. 19 They have also left Jamaica. It is clear, then, that the 20 personal safety and missions of those named have been placed 2~ in jeopardy by "naming names." In the balancing of two important social interests, 23 public safety and the search for truth, it is clear that the 24 protection of the lives of our agents overseas far outweighs 25 a pattern of activities which identifies and discloses the 400 VIRGINIA AVE.. S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 ooroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 names of those agents. And I use the term "pattern of 2 activity," Mr. Chairman, because that is the language in 3 Section 601(c) of the Act. 4 In this regard, Mr. Chairman, I think it is essential, 5 and it is important to stress, that this bill would not 6 prevent Mr. Philip Agee from publishing the articles 7 contained in his publications, obnoxious though they might 8 be. This bill would only restrain his publication of the 9 names of persons he claims are covert agents. BY the same token, there is nothing in this bill which 11 would prevent Louis Wolf from continuing to publish his 12 Covert Action Information Bulletin which does contain 13 articles purporting to be based on "research" into U.S. 14 intelligence operations at home and abroad. I wish to 15 stress this: This Bulletin can continue to be published. 16 The only impact of this legislation would be on the section 17 of the Bulletin entitled "Naming Names." And here, Mr. 18 Chairman (indicating), is an example, "Naming Names." It 19 sets forth the names of alleged agents serving this Nation 20 abroad and serving this Congress abroad. 21 I hope that this brief review of the constitutional 22 questions will show that the First Amendment does not 23 provide absolute protection for all speech; and that the 24 Government can in certain circumstances intervene in the 25 exercise of free speech in the interest of public safety ALDERSON REPORTING COMPANY, INC. 00 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 For Release 2007/03/01 : 00 VIRGINIA Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 without jeopardizing the search for truth. As the Attorney General stated last year on this 3 subject, "our proper concern for individual liberties must 4 be balanced ' with - a concrn for the safety of those who serve 5 the Nation in difficult times and under dangerous 6 conditions. " 7 It goes without saying that these important 8 constitutional considerations were very much in our minds 9 when my colleagues and I worked up the final draft of the 10 Intelligence Identities Protection Act. We are not 11 challenging the Constitution. We are working with it. In 12 my judgment, we have worked well within its limits. We have 13 successfully followed what my uncle called the "boundary 14 line of free speech." Mr. Chairman, I will not take the time this morning to 16 discuss the specific provisions of S. 391, or to point out 17 in detail how this formulation reflects our proper concern 18 for First Amendment rights. This has been the subject of 19 previous testimony, and others will testify this morning, 20 and it is part of the extensive record on this issue. I 21 recommend the Intelligence Committee's Report on this 22 subject, as well as the published hearing record of both the 23 Intelligence and the Judiciary Committees. 24 However, there is one additional issue which I believe 25 must be addressed before I conclude my remarks, because ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE.. S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 there has been so much confusion surrounding it. During the long debate on this issue, and in the hearings before the Senate Intelligence Committee, I have heard it suggested or implied that it should be acceptable for people to disclose the names of covert agents if this information derives from 6 unclassified sources. The implication of this view is that there exists 8 somewhere in this government an official but unclassified 9 list of covert agents; and that those who have found this 10 list should be free to publish the names thereon. 12 agents within the Senate Intelligence Committee, and have 13 even held a series of detailed hearings on the subject. 14 Without going into specifics in this session, I can assure 1 you that there is no such list. What we have found are 6 unclassified official or semi-official documents which 17 contain the names of covert agents in among the names of its other officials of the U.S. Government. The covert agents '2 ~_~:-e not identified. The very purpose of these documents is 20 to cover or to hide the true identity of the covert agents 21 named thereon, and in no case is an identification 22 explicitly made. 23 However, to say that the government has never published 24 an unclassified list of covert agents as such does not mean 25 that certain prsons, employing basic principles of 400 VIRGINIA AVE., S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 counter-espionage, and after considerable effort, cannot 2 determine identities of covert agents with some degree of 3 accuracy. It is possible. It is the purpose of S. 391\to punish the publication 5 of names acquired through these techniques, regardless of 6 whether the identification was made with reference to 7 classified or unclassified material. And I might say that 8 this is not a punishment of a one-shot publication. Section 9 601(c) refers to the course of a "pattern of activity" to 10 disclose the names. It is not the mechanism of 11 identification which places people's lives in jeopardy or 12 threatens. our intelligence capabilities; it is the actual 13 publication of the names as "covert agents" that does so. 14 It is the "pattern of activity" involved in the pernicious 15 business of "naming names" that we want primarily to 16 Prevent. In closing, Mr. Chairman, I would like to make a 18 special appeal to you and to my colleagues on your committee to report S. 391 intact so that the interminable delays 20 which seem to follow any change to a bill might be avoided. 21 You have my assurance, in turn, that I will do whatever I 22 can to see that this vital bill is moved with the deliberate 23 speed it deserves. 24 Over the past five years, more than 2000 names of 25 alleged CIA officers have been identified and published by a 400 VIRGINIA AVE., S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 small group of individuals whose stated purpose is to expose 2 U.S. intelligence operations. I think it is time we 3 legislated an end to this pernicious vendetta against the 4 American intelligence community. The naming of names, not 5 the publication of a bulletin and the railing against the 6 U.S. intelligence service. Mr. Chairman, we send fellow Americans, we in the U.S. 8 Congress, members of the U.S. Government abroad on dangerous 9 missions . We owe it to them to do our utmost to protect 10 their lives as we go about our business. Finally, Mr. Chairman, it has been my privilege as a 12 member of the Intelligence Committee to have traveled 13 somewhat in different sections of the world. In doing so, I +- .sake an attempt to meet with our intelligence agent station 15 chiefs and converse with them, discuss with them their 6 problems, what we might do in the United States Senate as 17 members of the Senate, as members of thelIntelligence 18 Committee, to be more helpful to them in discharging their 19 duties. 20 I can say, Mr. Chairman, that everywhere I go, without 21 question, unanimously the question is raised that the most 22 disconcerting activity that takes place, the most 23 demoralizing activity, is the publication of names in 24 bulletins such as this (indicating). Our agents find it 25 difficult to understand why nothing can be done about this. 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Mr. Chairman, I have a deep personal interest in 2 seeing-- and I know this concern is shared by members of the 3 Committee here and members of the Senate throughout-- to do 4 the best we can to protect the lives of our agents and their 5 families abroad. Thank you, Mr. Chairman. I would be glad to answer any 7 questions that you might have. Senator Denton: Thank you very much, Senator Chafee. 9 Your Uncle Zachariah has spoken very well, and he shall 10 become one of my valuable sources of quotations. We do have 11 the letter from Mrs. Kinsman. I have read it and been much 12 impressed by what that lady had to say. I will have no questions of our colleague. Would you, .Senator Leahy? Senator Leahy. I wonder if I just might, Mr. Chairman, 16 with your indulgance, ask a couple of questions. I have 17 been singularly impressed over the past several years that I have been on the Intelligence Committee with how often we as 3 a committee act with complete unanimity. I would say in the 20 vast majority of things, certainly far, far more than any 21 other committee in the United States Senate. 22 It is interesting, too, because the membership is made 23 up with a very real effort to have a broad ideological, 24 geographical, every other kind of mix in there so it can be 25 truly representative of the United States Senate. I know of 400 VIRGINIA AVE.. S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 no issue where the Intelligence Committee has spoken with 2 stronger unanimity than our great concern over the release 3-of the names of our agents worldwide. 4 The people who serve us in the intelligence agencies 5 around the world certainly all the ones I have met, and I 6 have done the same thing as you in visiting our people 7 abroad-- they are dedicated. They are hardworking. Many 8 times they are operating under serious disadvantages, 9 personal disadvantages to their family, themselves, in the 10 way they are living and working. Many certainly do not fit 11 into the idea of a "John Le Carre" spy novel. They are many 12 times people who carry out what appear to be fairly mundane 13 things, but very necessary; certainly not the type who 14 should be expecting or anticipating being put in great 15 personal danger, and yet they are when their names are 16 bandied about as being the lead person for some American 17 worldwide intelligence apparatus. 18 The person may well be working on economic issues or ,-. something like that, but suddenly find that they are going 20 to have to defend their lives, and just as badly, defend the 21 lives of their spouses and children. 22 So there is no question that we want to put an end to 23 the pernicious practice of naming names of our cover 24 intelligence personnel, especially in the case of the Covert 25 Action Information Bulletin where it is being done purposely 400 VIRGINIA AVE.. S.W.. WASHINGTON. O.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO210R000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 to impede foreign intelligence activities in the United 2 States. What I am concerned about, though, we all agree 4 absolutely that that has to stop. What I am concerned about 5 is how we do it. The issues of the constitutionality of 6 Section 601(c) have been raised. Philip Heymann has 7 suggested different language, and so on. Maybe it is a philosophical question,. John, that I have 9 more than anything else. Do we run a great risk -- even a 10 greater risk in some ways -- if we passed the bill, and if 11 Section 601(c) were to be found unconstitutionally broad? 12 In some ways, is that not a greater risk? Does that not 13 almost look like we have opened the floodgates, and it would 14 take years to restore any sense of security not only to our 15 own personnel but to those that may act against them? 17 not be constitutional unless it contained an element of 18 malicious intent or bad purpose. Do you think we should 19 adopt that approach? 20 Senator Chafee; First, Mr. Chairman and Senator Leahy, 21-1 want to pay tribute to the, work you have done on the 22 Senate Intelligence Committee, a very valuable member and 23 you have as great concern in this area as any one member of 24 the committee. I know that you have worked extremely hard 25 to devise an approach in which we might solve this problem Doroved For Release 2007/03/01400 IA VIRGINIA 0~8T3$1~6bd - 1202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 which bedevils all of us. This Section 601(c) has had support from the Justice 3 Department, as you recall, when started, and indeed the 4 version that is in the House is somewhat different in that 5 it has an "intent" section of what the Justice Department 6 calls a "subjective form of intent," whereas you will notice 7 on line 4 in the bill where it uses the word "intended" in 8 connection with the "course of activities," that is 9 described as an "objective standard of intent," one that is 10 not something in the mindset but can be weighed objectively. So in answer to your specific question, it seems to me 12 that what we have done here is said that the "course of 13 activities" -- mind you, it is not one publication; it is 14 not The New York Times stumbling on the name of an agent and -publishing it once; it has to be a "pattern of activity" which is a series of publications -- and that that}) in itself 17 is the offense. I do not think it has to be with any malicious intent, 19 because we have described the action. It is like -- I 20 suppose analogies are always dangerous -- but shooting 21 somebody. You shoot them, and whether you do it with 22 "intent" or not to murder them, it is a "killing" and it is 23 punishable. 24 So we what we have done in the "crime" here is this 25 "pattern of activity" exposing the agents with the intent to 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 expose. So I do not believe that a standard of 2 maliciousness, which I think would be -- well, whether we 3 could ever get into the proof of such a thing, the defendant 4 would say it is not malicious, "I am out to do something for 5 the good of the United States." 6 Senator Leahy: But you do recognize philosophically 7 the problem that we would face? That if we were to pass one 8 part of the statute and have it held unconstitutional, that 9 it would be almost like we were opening the barn door and 10 saying: Unleash the herd? Senator Chafee: Well, I do not think so, because I do not think that if this were found unconstitutional-- I am not accepting the assumption-- but if it were found unconstitutional, I just do not think responsible American citizens are going to go out and say: Three cheers! We can 16 now publish all the names of all the agents we can discover, 17 and we will do it freely. I mean, I do not believe that the mass majority of 19 Americans are going to do this. There is a limited group 20 that is doing it now. But it is enough to cause damage. Senator Leahy; Well, let me take Mr. Agee and Mr. 22 Wolf's activities. Would those not fall clearly within that 23 "bad purposes" test, the test suggested by Mr. Heymann, 24 suggested possibly by the House language? 25 Senator Chafee: I am not sure I get your question. 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21 OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Senator Leahy: Well, would not the kind of thing that 2 we seem to be zeroing in on, would not that fall under the 3 more restrictive language that has been suggested by the 4 Department of Justice and suggested by the House bill? Senator Chafees Well, the Department of Justice 6 approves this language. Senator Denton z If you would yield, sir? Senator Leahy: Sure. Senator Denton: The delay which I mentioned was due to 10 their consideration of the wording, and the ultimate 11 judgment was in favor. There is total confidence that it is 12 constitutional. Senator Leahy; Let me go to another question. How 14 does this affect those things that seem to pervade all 15 administrations, Republicans and Democrats, since I have 16 been paying attention, of the so -called,"authorized leak"? 17 So I will not appear to be partisan, I will just take the 18 last four years. There was one person at a high level in 19 the Administration who it appeared that he virtually had a 20 member of one of the larger newspapers in this country on 21his payroll with the way leaks would flow through to him. 22 We sometimes had to hurriedly schedule meetings of our 23 intelligence committees so that we could be briefed by the 24 intelligence community prior to -- or at least within a few 25 days of having read the same material on the front page of 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 that particular newspaper. Does it involve that sort of 2 thing? 3 Senator Chafee: This solely deals with "names." That 4 activity that went on that we were dealing with I do not 5 recall involved names. So this is solely, both (a), (b), 6 and (c). Senator Leahy: Then let me just ask you one last 8 question, because I understand that the "pattern" could be a 9 series of events leading up to just one publication; it does 10 not necessarily mean by a "pattern" a series of 11 publications, but a series of events, rather, that may lead 12 to just one publication. We heard testimony here on the origins and support of 14 international terrorism in this subcommittee recently. We 15 had Claire Sterling, the journalist Michael Ladine, and 16 Arnold Deborshgrave. Now all of these authors have named a 17 source who could fall under the definition of "covert agent" 18 contained in the bill. They used that to make their case 19 that the Soviet Union was supporting international terrorism. 20 Now I do not believe by any stretch of the imagination 21 that any of these authors wrote with the intent of impairing 22 or inpeding the effectiveness of the foreign intelligence 23 activities of the United States. But they were all told, as 24 I understand it, by the U.S. Government sources that they 25 were wrong in their conclusion. 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2Q07/03/01 : CIA-RDP83MOO21OR000300060015-2 Now could the objective standard of "with reason to 2 believe that such activities would impair or impede the foreign intelligence activities in the United States" have had a chilling effect on their ability to use and name a high-caliber source to prove a point which the U.S. Government continues to deny? Senator Chafee: Well, I do not know the facts of that 8 exact case, but there are a whole series of hurdles that 9 have got to be overcome before you can achieve a successful 10 prosecution under this Section 601(c). There are six of 11 them. 12 First, that there was an intentional disclosure which 13 did in fact identify a covert agent. 14 Second, that the disclosure was made to an individual 15 not authorized to receive classified information. Third, that the person who made the disclosure knew the 17 information identified a covert agent. 18 Fourth, that the person who made the disclosure knew 19 that the United States was; taking affirmative measures to 20 conceal the agent's classified intelligence affiliation. 21' Fifth, that the disclosure was made in the course of a 22 pattern of activities. 23 And sixth, that the person making the disclosure had 24 reason to believe that his activities would impair or impede 25 the foreign intelligence activities of the United States. ALDERSON REPORTING COMPANY. INC. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 nrnvPrl For Release 2007/03/01 : CIA-RDP83M0021OR000300060015-2 Approved For Release 2007/03/01 : CIA-RDP83MOO2 Now those are pretty big hurdles to jump. Senator Leahy: I understand. I can think of things I 3 have read -- well, to be totally bi-partisan about it -- 4 things I have read in the last six years since I have been 5 in the Senate, based on the knowledge that I had first in 6 the Armed Services Committee and then on the Intelligence 7 Committee, material that has gone from high Administration 8 officials, both Republican and Democratic Administrations, 9 directly to members of leading news media in this country 10 that would fall under every one of those tests, and were 11 published in the newspapers or within the electronic media. 12 The leaks came directly by high officials of both Republican 13 and Democratic Administrations that fall directly under 'y that. 15 Senator Chafee: With the names? 16 probably the difference. I think that is 17 Senator Leahy: Well, the definition of "names," if you 18 use a source that could only be one conceivable person that '+J :.t could come from, or one conceivable place that it could 20 come from, that is the same as the name. 21 Senator Denton: If the Senator would yield, I do have 22 two specific pieces of answers to two previous questions he 23 made reference to. 24 One is the mentioning of names by Messrs. Deborgrave 25 and Ledine and Mrs. Sterling. In every case which we know ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 20 ) 554-2345 (11 - rin-RnP83 n00210R00030006001o- Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 of, the names named were all taken from foreign sources, 2 meaning that the agencies inimical to.our interests already 3 had the names. This Department of Justice ruling was dated 4 25 February. We did not get it until about the last part of 5 March. But one sentence which does directly address\ your 6 question about "with reason to believe" -- that is, the 7 constitutionality or advisability of that -- the relevant 8 quote says: "The 'Department supports Section 601(3)(c)'s 9 requirement that an individual must act 'with reason to 10 believe that such activities would impair or impede the 11 foreign intelligence activities of the United States." They 12 go on to say that: "This is prefereable to the House 13 version of the bill, H.R. 4, which requires that an 14 individual must act with the "intent to impair or impede the 15 foreign intelligence activities of the United States." 16 For what it is worth, those are the closest responses I 17 can make to those two questions. 18 With regard to the high officials leaking names, if 19 that is what we are getting into I am personally interested 20 in trying to tighten up the punitive measures which might 21'deter such leaks when they are against the security of the 22 United States. 23 Senator Leahy: Unfortunately, Administrations have for 24 years leaked what they think is within their benefit. We 25 usually catch hell for it up here, because people start 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 talking about all the leaks from Congress. I know in the 2 Intelligence Committee at least I know of no leak that has 3 ever come out of that committee; but I know of an awful lot 4 of hours of frustration that both Senator Chafee and I have 5 expressed at leaks that have come elsewhere. I realize, Kr. Chairman, that you have an awful lot of 7 other witnesses, and I will forego- any other questions. I 8 simply want to establish the fact that there is certainly 9 unanimity within the Senate on the desire to protect the 10 names of agents. We do not want our agents' names bandied 11 about. They are operating under enough problems as it is; 12 their own safety, the safety of their families is going to 13 become more and more difficult, and is already becoming more 14 and more difficult to recruit good men and women for a job 15 that is absolutely essential to the security of the United 16 States. I think that good intelligence, properly used, is 17 one of the best guarantees of freedom in the world, and one 16 of the best guarantees that we do not stumble into such 1S#_hings as what would be the worst case, of course, an 20 accidental nuclear war. 2f So we must have it, and we must protect the identity 22 and the safety of those agents. But I also want to make 23 sure, however, that in doing it we do not infringe, number 24 one, on the basic constitutional rights that we are 25 ultimately trying to protect for all of us. And secondly, ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 that we do not pass legislation which may ultimately be 2 overturned, for whatever reason; because I think that that 3 would exacerbate the situation even greater. So we are all striving for the same end, and I raise the questions to make sure that when we finally come out with a bill it will be the best one possible. And I just compliment Senator Chafee on this. I think in the Intelligence Committee he has been a yoeman in the work that he has done in trying to educate all the rest of us, Mr. 10 Chairman, in working with us and in trying to bring together 11 the disparate views on the whole subject. Thank you. Senator Chafee: Well, thank you, Senator Leahy. 14 Again, I appreciate the efforts that you are making, along 15 with all the rest of us, to arrive at a successful solution to this problem. 17 I would-just conclude by making two brief points. 18 First, the whistle-blower problem is taken care of on page 4 I 19 of Section 601(c) where it does provide that it is perfectly 20 permissible to go to the Intelligence Committees, as you 21 pointed out. 22 Secondly, in some of the testimony we had last year the 23 point was made by opponents to this Act that there have been 24 all of these publications of names -- and I think I 25 mentioned in my testimony some 2000 names -- and only one ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 person has been murdered, and only one agent has been 2 murdered, and only one house or a few houses have been shot 3 up, so why bother passing legislation? To me, Mr. Chairman, I do not buy that argument. First 5 of all, I do not think anybody should be murdered or 6 endangered. But secondly, and I am sure you can adduce this 7 from the testimony of the Director, the effect of these 8 names on our ability to function has been severe. 9 Regardless of whether it is a murder of an agent or not, or 10 the shooting up of a home, the deliterious effect on our 11 intelligence operations has been severe. So I just hope that no one succumbs to the argument 13 that there have been 2000 names, and only one person aw_ -Irdered, so why bother? 15 Senator Leahy: I do not think anybody is going to buy lb that argument here. 17 Senator Chafee: I do not think any of us will take 1b that argument. Senator Denton: And we recognize that, aside from the 20 loss of life or the injury to individuals, the 21 neutralization of their function of the names which are 22 revealed is a deliterious effect on our security. 23 Thank you very much, Senator Chafee, for your testimony 24 here this morning. 25 Senator Chafee: Thank you, Mr. Chairman. I appreciate ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE.. S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 it. Senator Denton: Mr. Casey has a Cabinet meeting at 3 11;30, and we are going to try to expedite our questions so 4 that he will be prompt in making that meeting. 5 We will ask William J. Casey, the Director of the 6 Central Intelligence Agency, to come forward. Would you 7 wish, Mr. Casey, your two colleagues to accompany you? John 8 Stein, Acting Deputy Director of Operations, and Mr. Fred 9 Hitz, Legislative Counsel for the CIA. ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 STATEMENT OF WILLIAM J. CASEY, DIRECTOR, UNITED STATES 2 CENTRAL INTELLIGENCE AGENCY; ACCOMPANIED BY JOHN H. STEIN, 3 ASSOCIATE DEPUTY DIRECTOR FOR OPERATIONS, CIA; AND FRED 4 HITZ, LEGISLATIVE COUNSEL, CIA Mr. Casey: I am pleased to be here, and I would ask 6 that my prepared statement be inserted in the record, and I 7 will give you the gist of my statement orally. Senator Denton: It shall be done, sir. Mr. Casey; Early last month I appeared before the 10 House Intelligence Committee on legislation and testified on "the House version of this bill. With both Chambers 12 considering this legislation, I am very hopeful that we will 13 soon see enactment of a measure that will finally put an end the pernicious and damaging unauthorized disclosures of 10 intelligence identities. We need criminal penalties as soon as possible on the 17 unauthorized disclosure of information identifying certain "i8-individuals engaged or assisting in the foreign intelligence activities of the United States. This Administration 20 believes that the passage of the Intelligence Identities 21 Protection Act is essential to the maintenance of a strong 22 and effective intelligence apparatus. Enactment of this 23 legislation is vital to President Reagan's determination and 24 commitment to enhance the Nation's intelligence capabilities. 25 Mr. Chairman, there exists a tiny group of Americans 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 who openly proclaim themselves to be devoted to the 2 destruction of the Nation's foreign intelligence agencies. 3 This group has engaged in activities avowedly aimed at 4 undermining the Nation's intelligence capability through the 5 identification and exposure of undercover intelligence 6 officers. 7 Those perpetrating these disclosures understand 8 correctly that secrecy is the lifeblood of an intelligence 9 organization, and that disclosure of the individuals engaged 10 in that activity and whose identity is deliberately"; 11 concealed will disrupt, discredit, and they hope ultimately 12 destroy an agency such as the CIA. Some of the persons engaged in this activity have actually traveled to foreign countries with the aim of stirring up local antagonism to U.S. officials through thinly veiled incitements to violence. 17 1r. Chairman, I might say that since taking the post of 18 Director of the Central Intelligence Agency only a few 19 months ago, I can confirm that these disclosures have 20 resulted in untold damage'and, if not stopped, will result 2T in further damage to the effectiveness of our intelligence 22 apparatus and to the Nation itself. 23 . I am appalled at the degree to which concerted activity 24 is being carried out around the world to destroy the 25 capacity which is critical to our national security, and -ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 which has been painstakingly developed over many years with 2 the full participation and support of the Congress and an 3 investment of many billions of dollars. 4 The traggic results of these unauthorized disclosures 5 have been reviewed by Senator Chafee so well that I will not 6 take your time to go into all the details, except to say 7 that just a few weeks ago six Americans were expelled from 8 Mozambique following charges of engaging in espionage. 9 These expulsions followed and were directly attributable to 10 visits to that country by members of the Cuban Intelligence Service and the editors of the Covert Action Information 12 Bulletin. So this is a continuing threat that hangs over our 14 heads which can result in serious damage, increasing 15 discouragement, and retirements of people engaged in this 16 activity who have developed years of experience which is 17 enormously valuable to our national security. Mr. Chairman, I do not think it necessary to go into 19 great detail about the adverse effects that these 20 disclosures are having. Simply put: The credibility of our 21'Country and its relationship with foreign intelligence 22 services and individual human sources, the lives of 23 patriotic Americans serving their Country, and the 24 effectiveness of our entire intelligence apparatus are being 25 placed in jeopardy daily. 4 VI NIA AVE S.W. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01 : fA-RDP83Mb021OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Extensive hearings before the House and Senate 2 Intelligence and Judiciary Committees have documented these 3 damaging effects. The underlying basic issue is a fact that 4 our ability to continue to recruit and retain human sources 5 of intelligence whose information could be crucial to the 6 Nation's survival in an increasingly dangerous world, our 7 equally important relations with the intelligence services 8 of other nations, are in continuing jeopardy as long as we 9 are exposed to this threat. It is important to understand what legislation in this 11 area seeks to accomplish. It seeks to protect the secrecy 12 of the participation or cooperation of certain persons in 13 the Foreign Intelligence Service of the United States. 14 These are activities which have been authorized by the 15 Congress, activities which we as a Nation have determined to 16 be essential. Secrecy is essential to the safety and 17 effectiveness of the case officers and the agents, without is which no intelligence service can operate. It is essential to get ~'ndividuals to undertake this delicate, demanding, 20 and frequently dangerous work. No existing statute clearly and specifically makes the 22 unauthorized disclosures of intelligence identities a 23 criminal offense. As matters now stand, the impunity with 24 which unauthorized disclosures of intelligence identities 25 can be made implies a government position of neutrality of 400 VIRGINIA AVE.. S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 not caring about the matter. It suggests that U.S. 2 intelligence officers are fair game by those members of our 3 own society who take issue with the existence of the CIA, or 4 find other perverse motives for making these unauthorized 5 disclosures. 6 Ilmight say that other intelligence services around the 7 world, and other nations, the leaders of other nations, 8 witness this continuing spectre where the United States 9 leaves its people who have undertaken this work exposed to 10 this kind of risk and look at it with amazement. You hear 11 it wherever you go. 12 I believe it is important to emphasize that the 13 legislation which you are considering today is not an 14 assault on the First Amendment. It would not inhibit public 15 discussion and debate about U.S. foreign policy or 16 intelligence activities. It would not operate to prevent 17 the exposure of allegedly illegal activities or abuses of 18 authority. It is carefully crafted and narrowly drawn to 19 deal with conduct which serves no useful informing function 20 whatsoever. It is not related to alleged abuses. It does 21'not bring clarity to issues of national policy. It does not 22 enlighten public debate. It does not contribute to an 23 enlightened and informed electorate. 24 Hr. Chairman, there is virtually no serious 25 disagreement over those provisions of this legislation which 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 ooroved For Release 2007/03/01: CIA-RDP83MOO21OR00'0300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 impose criminal penalties on the unauthorized disclosure of 2 intelligence identities by those individuals who have had 3 authorized access to classified information. Controversy 4 has centered on Subsection 601(c) of S. 391 which imposes 5 criminal penalties on the disclosure of information 6 identifying a covert action by anyone under certain 7 specified conditions. Disclosure of intelligence identities by persons who 9 have not had authorized access to classified information 10 will be punishable only under certain specified conditions 11 which have been carefully crafted and narrowly drawn so as 12 to encompass persons only engaged in an effort or pattern of 13 activities designed to identify and expose intelligence 14 personnel and impair our intelligence capabilities thereby. The proposed legislation also contains offenses and 16 exceptions which reinforce this narrow construction. It is 17 instructive in this regard to look at the elements of proof 18 that would be required in a prosecution under this section, 19 keeping in mind that the government would have to prove each 20 of these elements beyond a reasonable doubt. 2f The government would have to show that there was an 22 intentional disclosure of information which did in fact 23 identify a cover action; 24 That the disclosure was made to an individual not 25 authorized to receive classified information; ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO210R00030006001,y5-2 The the person who made the disclosure knew that the 2 information disclosed did in fact identify a covert action; That the person who made the disclosure knew that the 4 United States was taking affirmative measures to conceal the 5 covert agent's classified intelligence affiliation; That the individual making the disclosure did so in the 7 course of a "pattern of activity intended to identify and 8 expose covert action; And that the disclosure was made "with reason to 10 believe that such activities would impair or impede the 11 foreign intelligence activities of the United States. 12 Because of these strict conditions which narrowly 13 define the prohibited conduct, I believe it is clear that ':4 this subsection is directed at conduct which the Congress i5 has the authority and power to proscribe consistent with the 16 First Amendment, and that this bill does so in a 17 constitutional manner. Mr. Chairman, I understand that the Department of 19 Justice believes that the Senate version of the bill better 20 captures the concerted nature of the activity which is 21 intended to be proscribed than does the House bill, and that 22 there are prosecutorial and evidentiary advantages to the 23 Senate language. I believe the Department's witness will 24 speak to this matter. 25 Mr. Chairman, S. 391 will deal with a clear and 400 VIRGINIA AVE.. S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 immediate danger which currently each-and every day 2 endangers our intelligence activities, our staff officers, 3 and the lives of those who are cooperating with our Nation 4 abroad. I want to express my gratitude and appreciation to the 6 subcommittee for so promptly bringing this legislation 7 forward, and to reiterate the hope that it will be enacted 8 into law as quickly as possible so that this intolerable 9 situation is remedied and no longer permitted to exist. I will be happy, Mr. Chairman, to answer any questions 11 that you or anybody else may have. [The complete statement of Mr. Casey follows:] 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 ooroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 149 I Senator Denton; Thank you, Mr. Casey, for your most 2 expert and helpful testimony. I will be very brief in my 3 questioning in view of your time constraints. 4 Let me say at the outset that, while you have evinced 5 your sense of being appalled at the situation which we are 6 now addressing with such incredible tardiness, from my own 7 background I can assure us all that from personal contact 8 with high-ranking communists that they too are amazed, 9 amused, and highly pleased that, such a situation at which 10 you are appalled exists. I did hear you say, sir, that there is no existing 12 legislation which adequately deals with the problems of 13 disclosure which S. 391 is formulated to address. May I ask 14 what steps, if any, the CIA may have taken to tighten up its 15 security practices and cover for its own agents and 16 sources? And would the Agency develop standards for cover 17 sufficient to protect its covert employees from 18 identification, if this bill is passed and prosecuted 19 properly? Mr. Casey: Well, we take extensive precautions to 21 'equip our agents, and indeed our case officers with cover 22 and identities which facilitates the conduct of their task 23 that is assigned to them, and to protect them from both 24 disclosure of identification by foreign intelligence 25 services, and disclosure and violence from any source. 400 VIRGINIA AVE.. S.W.. WASHINGTOIJ. D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Senator Denton: Can Congressional oversight and 2 legitimate official and unofficial scrutiny of intelligence 3 activities take place without the likely revelation of 4 intelligence identity? Mr. Casey: Well, our experience with Congressional 6 oversight and the informing of the relevant committees about 7 our proposed and actual operations has not resulted in any 8 serious disclosure at all, as far as I know. Much of the 9 conversation which takes place with the committees generally 10 describes what we intend to do and the risks and other 11 things that may be involved that seem relevant to the 12 adequate understanding and proper oversight, and very 13 unusually does it take us into identifying the particular 14 individuals who will undertake the particular mission. So I 15 do not see any risk there at all for the oversight process. Senator Denton; My final question, sir: I am not even 17 a lawyer, but I cannot help but be somewhat impressed that 18 the offense which we are trying to establish as culpable 19 would result in a punishment of a fine not to exceed$15,000 20 and imprisonment of not more than three years or both, 21 Considering the deaths which have resulted and the.harm to 22 our national security which can be translated in terms of 23 peacetime terroristic activities or wartime situations into 24 deaths. 25 In your opinion, are the penalties provided in S. 391 400 VIRGINIA AVE.. S.W., WASHINGTON. D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 sufficient or severe enough for the proscribed activities 2 mentioned in the bill? Mr. Casey; Well, I would not be opposed to more severe 4 penalties. I. believe, however, the fundamental requirement 5 is that we establish the illegality of this action, the 6 criminal nature of this activity, and that we do that as 7 promptly as possible. So I would not be inclined to 8 encourage the imposition of more severe penalties if that 9 were to result in a delay in the enactment of the 1.0 legislation. Senator Denton4 I entirely agree, sir. Senator Leahy? Senator Leahy: Thank you, Mr.. Chairman. Mr. Casey, I am always delighted to see you before any 15 of our committees. I would- also want to commend your 16 department for some help that they provided for me and my 17 staff during the past few weeks. It was extremely well done 18 and very professionally done, and I appreciate it. Mr. Casey: Your visits were very helpful to the morale 20 and spirit of our people. 21 Senator Leahy; Thank you, sir. 22 I found an interesting thing in preparing for this that 23 the American Civil Liberties Union and the Heritage 24 Foundation in what was probably an historic moment held 25 hands on one major item; that they feel that the issue is roved For Release 2007/03/01 4~,?I,~~ KU~ L~60db5b%8O% I L (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 not so much disclosure made by the press or public, but the 2 question of adequate cover for intelligence officers abroad, 3 something touched on by the Chairman earlier. I am concerned on that, as I know you are and I know 5 others here, I see Mr. Maury in the audience, and others who 6 have expressed the same concern in one. regard or another. I 7 know that many agents' identities have been uncovered 8 through the use of the State Department's Biographic 9 Register, I must admit an item that I was not aware of until 10 I got on the committee and started looking through a copy of 11 it. I understand that Register is no longer in general 12 circulation, but it is still published as an, unclassified 13 document. Have you discussed the problem this might create with 15 Secretary Haig? 16 Mr. Casey: Yes, I have, Senator. I think generally 17 speaking we are getting a high degree of cooperation on the 18 provision of official cover. There has been sort of a 19 resuming of the publication of the State Department's 20 Biographical Register, and that is under discussion now, the 21' impact it would have or might, have on protecting cover. I 22 think we will get full cooperation in the Executive Branch 23 with respect to all steps necessary to provide maximum 24 cover. 25 Senator Leahy: It occurs to me that both the ACLU and ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 the Heritage Foundation are correct in suggesting that no 2 matter what kind of laws we might have, if we do not have adequate cover there is always going to be somebody, for one reason or other, who is just going to go into something relatively easy to discipher and make a big thing out of 6 just passing them out, no matter what their motivation might 7 be. 8 Mr. Casey: Even the State Department's Biographic 9 Register took a certain amount of interpretation. It was 10 not always accurate; but with the nature of this kind of 11 activity, it does not really matter too much whether it is 12 accurate or inaccurate, insofar as the damage it imposes and 13 the disrespect and impairment of morale it creates. So the 14 publication of false information is almost as damaging as the publication of the correct information. 16 It is really the "pattern of activity- that I think the 17 legislation will address, and the thing that needs to be proscribed. Senator Leahy: Do you know, or has your office come 20 across cases where the names of agents were disclosed with 21 reason to believe that that disclosure would impair or 22 impede the foreign intelligence activities of the United 23 States, but at the same time felt that the person did so 24 without any intent of neutralizing the agent or impairing 25 our intelligence activities? ALDERSON REPORTING COMPANY, INC, Approved For Release 2007/03/01 r,lV~C~P~'3'~N 56-6 (S' 8 O%8o21 -2 (202 554 2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Mr."Casey: Well, I think that there has been 2 occasional publication in the press which divulged the name in the course of writing an article intended to generally 4 inform the public; yes. I do not believe that that kipd of a one-shot publication would be reached by this legislation, which it is clearly not designed to reach. This bill goes to the active use of the information for 8 a particular purpose in a particular way. As Senator 9 Chafee's distinguished Uncle put it: It is not the swinging 10 of the arm that is proscribed; it is the smashing of the 11 nose. 12 Senator Leahy: But you also agreed, however, that 13 under this law we could be dealing simply with one 14 publication, but a series of events leading up to it. Mr. Casey; Well, we could be; yes. There you have got 16 "acted in the course of a pattern of activities intended to 17 identify and expose". Unless the primary purpose is to 18 divulge a single agent's name, I do not think it would be 19 reached. You have to have a course or a pattern of 20 activities intended to identify." 21' Senator Leahy: But it could be one disclosure, but a 22 pattern of activities leading up to one disclosure. 23 Mr. Casey: The disclosure I think would have to be 24 part of a pattern of activities. 25 Senator Leahy: But it could be a single exposure. 400 VIRGINIA AVE. SW.. WASHINGTON, 0.82 24 (202) 554-2345 roved For Release 2007/03/01 : CIA-RDP83M00210R000300060~~-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Mr. Casey: It could be a single publicaticn. Senator Leahy: ?'I may have other questions, Mr. 3 Chairman, but I will submit them for the record. I know the 4 Director has to go to a Cabinet meeting. 7 Biden is delayed because of a train accident, all the trains 8 being held up. He will be here as soon as possible. 9 We would like to thank you very much, dir. Casey, and 10 hope that you get to your Cabinet meeting on time, sir. Hr. Casey: I appreciate it very much. Thank you. 13 Willard, Counsel for Intelligence Policy, Department of Cood morning, lr. Willard, and welcome. 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 I STATEMENT OF RICHARD K. WILLARD, ESQ., COUNSEL FOR 2 INTELLIGENCE POLICY, UNITED STATES DEPARTMENT OF JUSTICE 3 Mr. Willard: Thank you,-Mr. Chairman. It is a pleasure for me to appear before you on behalf 5 of the Attorney General today to express the views of the 6 Department of Justice regarding S. 391. With your 7 permission, Mr. Chairman, I would like to simply make a few 8 brief remarks at the outset, and submit my prepared 9 statement for the record without reading it in its entirety 10 at this time. 11 Senator Denton: Surely; permission granted, sir. 12 Mr. Willard: I would like to emphasize at the outset 13 that the Department of Justice strongly supports the 14 enactment of this legislation to protect the identities of 15 the clandestine intelligence officers, agents, and sources 16 who serve this Country. 17 Senator Chafee and Director Casey have spoken eloquently today of the need for this legislation, and we a_T:ully agree with their views in this regard. It has been 20 the position of the Department that the knowing disclosure 2f of the classsified identity of a clandestine officer, agent, 22 or source of an intelligence agency could constitute a 23 violation of certain sections of the existing espionage 24 laws; nevertheless, we agree that additional and more 25 specific legislation would facilitate prosecution of those 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 who seeks to make these disclosures, and thus neutralize the 2 intelligence agencies who serve our country. 4 S. 391 which are now under consideration after having been 5 introduced in this Congress by Senator Chafee on behalf of 6 himself and a number of other distinguished Senators. This bill would prohibit the disclosure of information 8 identifying a covert agent which is a defined term covering 9 a range of government employees, agents, informants, and 10 sources. Varying penalties would be applied to three 11 different categories of persons who may be involved in the 12 unauthorized disclosure of such information. The first two categories provided in this bill have not 14 been controversial. These provisions add substantial 15 protection against disclosure by current and former 16 government employees and contractors who have had authorized 17 access to classified information and the identities of 18 covert agents. The fact that these persons have had access 19 to such classified information lends an aura of credibility 20 to disclosures by them, and may provide them with a degree 21 'of expertise regarding how covert identities are concealed 22 and the means for piercing such concealment measures. 23 We have one suggestion with regard to these provisions, 24 which are Section 601(a) and Section 601(b) of S. 391. 25 Neither section now includes a provision that would 400 VIRGINIA AVE.. S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 criminalize attempts to commit the proscribed actions. An 2 attempts' provision would specifically authorize the 3 government to initiate the prosecution of any person who 4 meets the standards of these two sections, and who has taken 5 a substantial step forward, but has not completed the 6 disclosure of the identity of covert agents. Such undertaking should be deterred subject to 8 punishment without forcing the government to delay until the 9 identities have actually been disclosed to the public and 10 the harm already done. We believe the penalty for a 11 violation of an attempts' provision should be somewhat less 12 than for an actual disclosure. The third and final category of persons covered by the 14 bill is described in Section)601(c), and this section has 15 attracted the most attention. This provision includes 16 persons who have not had authorized access to classified 17 information that identifies or results in learning the 18 identities of covert agents. ''i9 The provision would penalize a person in this category 20 who knowingly discloses the identity of a covert agent in 21 the course of a "pattern of activities itended to identify 22 and expose covert agents and with reason to believe that 23 such activities would impair or impeded the foreign 24 intelligence activities of the United States." 25 This provision would provide a criminal penalty for any ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 roved For Release 2007/03/01: A-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 person, including those who have never had authorized access 2 to classified material, who disclose information identifying 3 a covert agent with the requisite state of mind, even if tie 4 information is derived entirely from public sources. 5 It has been argued that the principles of the First 6 Amendment are done violence when the government seeks to 7 punish actions based on information that is made available 8 to the public. We do not believe this argument has any 9 merit. As Senator Chafee pointed out, the First Amendment 10 is not absolute; and we are totally confident that a 11 carefully drafted bill such as S. 391 is constitutional. 12 Congressional hearings over the past two years have 13 well documented the serious harm to the national defense 14 wed by the actions this statute is intended to prevent. 'z)-Nnen compared with the extremely limited burden on speech, to we oelieve that this serious harm justifies the proposed 17 legislation. io -We.-also believe that the objective standard of "intent" 601 (c) would pass constitutional muster under a 20 First Amendment or due process challenge. We believe that 21 fhis standard is preferable to the specific "intent" 22 standard contained in the current House version of this 23 legislation, Section 601(c) of H.R. 4. 24 A question has been raised by various Congressmen 25 analyzing the analogous House bill whether it is appropria?tc 400 VIRGINIA AVE.. S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 to exclude cover FBI agents, sources, and informants in the 2 scope of this legislation. Two arguments have been raised 3 for excluding FBI covert agents. One is that FBI personnel operate domestically rather 5 than abroad, and hence'are better protected from the risk of 6 physical harm. 7 The second argument is that there is no empirical 8 record of FBI covert intelligence agents being exposed. We 9 disagree, however,, with both of these contentions. 10 It is inaccurate to state that FBI covert agents are I',: nsulated from a risk of physical harm, or that they operate 12 exclusively in the United States. We note, for example, 13 that people have attempted to use the Freedom of Information 14 ,Act to determine the identities of FBI informants in a av-enforcement context. In addition, there are many instances where FBI 17 undercover agents must travel abroad in the course of a 1 counterintelligence or counterterrorism investigation. Moreover, even when an FBI agent operates domestically, 20 he may be operating undercover in a violence-prone terrorist 21 group. In this situation, his safety cannot be assured if 22 his FBI affiliation is revealed. 23 More significantly, however, the argument against 24 including FBI agents in this legislation appears to 25 underestimate the harmful effects such a disclosure would ALDERSON REPORTING COMPANY. INC. 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 have on the government's ability to maintain effective 2 counterintelligence and counterterrorism operations. These 3 operations are critical to our ability to monitor and 4 prevent damaging penetrations of hostile intelligence 5 services. If compromised by public disclosure of our covert 6 agents' identities, serious damage to our national security 7 could result. Mr. Chairman, it is our belief that this bill will 9 strike the proper balance among the various competing 10 interests we must consider. Legislation of this nature is 11 critical to the morale and confidence of our intelligence 12 officers and their sources. The Justice Department strongly 13 recommends that it be reported out of this subcommittee with .4 A a favorable recommendation for enactment by this Congress. I would be happy to address any questions you may have at this time. [The complete statement of Mr. Willard follows:] 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Senator Denton: Thank you very much, Mr. Willard. 2 Does the DOJ feel that the authorized disclosures that 3 S. 391 addresses can be effectively prosecuted under its 4 provisions? Mr. Willard: Yes, sir, Mr. Chairman, we do. These 6 provisions have been developed in consultation with the 7 lawyers who prosecute crimes of this nature, and they 8 believe that this statute is both constitutional and 9 enforceable. Senator Denton: Do you foresee any problems with the 11 various burdens of proof which it must meet in prosecuting 12 violations under S. 391? Mr. Willard: Well, Mr. Chairman, we have to say that 14 Section 601(c) imposes a very heavy burden on the -15 government. There are six separate elements to this 1b offense, and it will not be easy to prove a violation; but 17 we believe that in the serious kinds of disclosures that fb''this committee has been concerned with, prosecution is ossible and the bill' is drafted for that purpose. Senator Denton: What would you see as the impact on 21' addressing the problem of unauthorized disclosures if 22 Section 601(c) were removed from the bill? 23 Mr. Willard: Well, this would we think seriously 24 endanger the effectiveness of the bill. The kinds of 25 unauthorized disclosure that this committee and other 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 committees in the Congress have been concerned with have 2 frequently occurred from people who 'cannot be shown to have 3 had direct access to classified information. Therefore, we 4 believe it is essential to have a provision like this if we 5 want to eliminate the harms the committee is concerned 6 with. 7 Senator Denton: The Department of Justice has stated 8 in the past that it feels wrongful disclosure of classified 9 information concerning an agent's identity constitutes a 10 violation of the existing espionage statutes, 18 USC 793(d) VI and (e), and 18 USC 794. 12 How many prosecutions have there been under these 13 statutes for offenses addressed by S. 391? That is, the 14- z-avealing of identities of intelligence officers and sources? Mr. Willard: To my knowledge, Mr. Chairman, there have Senator Denton: Do the present espionage statutes 16 cover activity proscribed by Section 601(c) of S. 391 such publication or republication? 20 Mr. Willard: Section 601(c) is a different kind of 21 'statute, more broadly drafted, and we think it will be more 22 useful in prosecuting these kinds of activities than the 23 existing espionage law. 24 Senator Denton: I would like to take time to recognize 25 the presence of my distinguished colleague from North 400 VIRGINIA AVE., S.W. WASHINGTON D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO210R00030b060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Carolina who is the Chairman of the Subcommittee on 2 Separation of Powers- on this Committee. I serve with him on 3 that subcommittee, and unfortunately we are often having 4 hearings at the same time. 5 For the record, I would like to submit my feeling of 6 great admiration for him as a Senator, and for his conscientious efforts in his current hearings. Welcome., Senator East. Senator East; Thank you, sir. Senator Denton: To date, FBI secret identities of 11 agents who travel abroad have not been revealed. Would it 12 have an adverse effect if identities were revealed, as has 13 happened to CIA agents? Mr. Willard: Yes, Mr. Chairman. We do not think that 15 Lhe good recuLd of the FBI in this regard should be held 16 aya inst us anu used to deny FBI agents the kind of 17 protection that would be very helpful to them in the future. 13 Senator Denton: Have the problems-encountered by the 19 CIA,impacted on the FBI's ability to conduct foreign 20 intelligence, foreign counterintelligence, and foreign 2t counterterrorism activities? And if so, how? 22 Mr. Willard: Mr. Chairman, I think that the climate 23 created by the problems that this committee has addressed 24 has an effect on the activities of all the intelligence 25 services in a general way. I am not prepared at this point ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 in open session to discuss specific ways they have impacted 2 on FBI counterintelligence or counterterrorism operations, 3 but I think that the Bureau would be happy to provide that 4 information in classified form to this committee. 5 Senator Denton; We would look forward to receiving 6 that, sir. 7 I would like to welcome Senator Biden who has survived 8 some train difficulties. He informs us that, regrettably, 9 one person was killed in the train ahead of his. Welcome, Senator Biden, and again I want to acknowledge your tremendous experience in this field, and your most 12 effective efforts in the past. Senator Biden: Thank you, Mr. Chairman. Mr. Chairman, for the record, there was no one in the 15 train that I was riding who was killed, but a northbound 16 Metro Liner going through the Baltimore tunnel struck a 17 flagman who was supposed to be the one warning of the train 18 coming that killed him, blocking the tunnel for an hour. So 19 I apologize to the witnesses who have already gone, and to 20 those of you who are here, for being late. It does not 21'evidence a lack of interest in this topic on my part. 22 Thank you, Mr. Chairman. 23 Senator Denton: Thank you, Senator Biden. 24 I would pause here and ask Senator East, first, if he 25 cares to make any statement due to perhaps the transiency of ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 roved For Release 2007/03/01: CIA-RDP83M0021OR000300060015-2 Approved For ReleasQ.2007/03/01: CIA-RDP83MOO21OR000300060015-2 66 1 appearance here, because of overriding requirements 2 somewhere else? Senator East; Senator, I thank you for the 4 opportunity. I am pleased to be here. I am sorry that 5 because of other conflicts I have not been able to be with 6 you from the beginning, but as a great admirer of your 7 service in Vietnam and of the great contribution you are now 8 making as a United States Senator, it is a pleasure to be 9 associated with you on this subcommittee. I am a co-sponsor of this bill, so my sentiments and 11 commitments are well known there, and I will not then delay 12 the hearings with any further comment, except to say 13 publicly, which I would. like to say, my great admiration for 14 you as a person as one of America's truly national heroes 15 and the great honor I consider it as a freshman senator to 16 be a part of your class and to serve under your leadership 17 here on this subcommittee. Thank you, Mr. Chairman. Senator Denton: Thank you, Senator East. I would invite Senator Biden to make any remarks he 21 might choose to at this point. 22 Senator Biden; Mr. Chairman, I will be brief. I have 23 an opening statement which I intended on delivering prior to 24 any witnesses being heard, but I think it is worth.my making 25 it at this point for the remaining witnesses to have a 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 a framework within which to understand my questions that will 2 follow their testimony. Hr. Chairman, through today's hearings we are involved 4 in a thorough and open analysis of the extremely important 5 piece of legislation. This legislation to protect 6 Americans, covert agents abroad, had its origin in a 7 terrible tragedy, the brutal murder of Mr. Richard Welch in 8 front of his home in Greece within a month after he was 9 publicly identified as the CIA Station Chief in Athens, and 10 the attempt on the lives of American Embassy officials and their families in Jamaica following publication of their 12 names, addresses, license plate numbers, and phone numbers 13 along with the allegations that they were CIA officials. A civilized society, Mr. Chairman, cannot ignore 15 systematic efforts to cripple its intelligence agencies by 16 hampering its foreign covert activities. The systematic 17 identification of persons as CIA officials has caused 18 further harm, because it interferes with the relationship 19 between the United States and foreign sources of 20 intelligence. 21? It is no surprise that sources in other countries are 22 somewhat reluctant to assist the United States when they 23 fear for their safety through exposure. In the last 24 Congress, the Intelligence Committee of which I have been a 25 charter member since its inception, and the Judiciary ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE. S.W. WASHINGTON D.C. 20024 202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83M00210R00030b060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO210R000300060015-2, 1 Committee, laid the groundwork for legislation to protect 2 covert agents. The bill before the subcommittee, S. 391, is 3 the product of that effort of the Intelligence Committee, 4 and it provides a valuable vehicle by which this 5 subcommittee can begin its analysis of the Intelligence 6 Identities Protection Act. Although I voted against the Intelligence Committee's 8 bill, and I guess I was the only one, or one of few in the 9 Intelligence'Committee last year, and I filed dissenting 10 views, I have supported legislation in this area in the 11 past. As I noted in the Committee Report on a related 12 issue, the Grey-Mail legislation, limited further protection 13 of intelligence sources especially in the identity of -A foreign agents appears to be very necessary. We reached i5 that conclusion the better part of two years ago as a i6 consequence of our efforts in the Grey-Mail area. The Intelligence Identities Protection Act before this 18 subcommittee, as I see it, has three parts. The first two parts create a federal offense with stiff 20 penalties for persons who have authorized access to 2f classified information, and use that information to disclose 22 the identity of covert agent. I have absolutely no problem 23 with those first two portions, and I do not think anyone 24 really does have much of a problem with those. 25 The third part of the bill also creates a new offense. 400 VIRGINIA AVE.. S.W. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO2'I OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 According to our Intelligence Committee Report, and I quote, 2 "It encompasses only individuals whose intentional will 3 evidenced by a course of conduct involves, first, a pattern 4 of activities; second, those activities intended to identify 5 and expose covert agents; and third, with reason to believe 6 that such course of conduct would impair or impede U.S. 7 foreign intelligence activities." 8 The purpose of this section, again according to the 9 Intelligence Committee Report, is to "apply criminal 10 sanctions only in very limited circumstances to deter those I... who make it -.1 .eir business to ferret out and publish 12 identities of agents." The report further states, "It does not affect the ?_First Amendmct rights of those who disclose the identity of 15 agents as an integral part of another enterprise such as 1b news media reporting of\intelligence failures or abuses, 17 academic studies of U.S.'Government policies and programs; its or private organizations in the enforcement of internal 19 rules." 20 I question whether the bill accomplishes' this end, 21-these goals, although we all agree the should. The language 22 of that provision, Section 601(c), is at best ambiguous in 23 my opinion, and at worst, as a number of constitutional 24 scholars have argued, unconstitutional. 25 The ambiguity in the language has led more than one ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 legal scholar to conclude that Section 601(c), although 2 having a very laudable goal, would prohibit the use of 3 unclassified material by private citizens who disclose 4 willful conduct by intelligence agencies themselves. This 5 committee should, and I am sure will, place a great deal of 6 emphasis on this concern since we have already seen the 7 value of thorough investigative authors such as Claire 8 Sterling, whom you have had before this committee, on 9 questions of intelligence agencies. % This subcommittee must also give weight to the,concern. 11 that Section 601(c) is unconstitutional. In fact, Professor 12 Kirkland, Philip B. Kirkland, Professor of Law at the 13 University of Chicago, one of the Nation's leading 14 constitutional scholars, reviewed Section 601(c) and stated 15 matter of factly that he "had little doubt that it is 16 unconstitutional." Kirkland went on in some great detail to 17 explain why. Now, Mr. Chairman, I look forward to reviewing the 19 testimony already given by the witnesses thus far, and the 20 witnesses to come, on the concerns I have raised and hope 21that they will assist us in this subcommittee in finding an 22 effective but more acceptable means to protect the names of 23 agents, which we all wish to do. 24 Finally, I would like to point out that this bill is no 25 substitute for an effective cover for foreign agents. We 400 VIRGINIA AVE.. S.W., WASHINGTON. D.C. 20024 (202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 have had, as you know, in the Intelligence Committee 2 numerous hearings on the inability and the lack of vigilance 3 in my opinion on the part of the Agency themselves to 4 protect the identities of their own people in ways that 5 would require not a great deal more imagination. So one of the things we have to do, we even had-to go 7 so far in the Intelligence Committee to instruct the 8 intelligence agencies to "take affirmative measures to 9 conceal the identities of agents." So I think that we have a two-fold purpose here. I 11 think your effort in expediting this legislation is not only 12 noteworthy, it is very important, and you have my full 13 support in that effort. Let me conclude by reading the text of what I was going 15 to ask Mr. Casey, and I will now read it so you all know 16 what I am going to pursue with regard to the 17 constitutionality of this. Philip Kirkland said., "I can frame my opinin on the constitutionality of this 19 section very precisely. I have little doubt that it is 20 unconstitutional. I cannot see how a law that inhibits the 2r publication without malicious intent of information' that is 22 in the public domain and previously published can be valid. 23 Although I recognize an inconsistency in Supreme Court 24 decisions, I should be very much surprised if that Court, 25 not to speak of the lower Federal Courts, would legitimize 400 VIRGINIA AVE. S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 pproved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 what is for me 'the clearest violation of the First 2 Amendment attempted by the Congress in this era.' "With all good wishes, Philip Kirkland." I wish he had a strong opinion on this subject -- (laughter.) Senator Bident But the point is, I plan to work with you, Mr. Chairman, to see to it that we get a bill. We must stop the Agee's. We must find a way to do it. It is outrageous and reprehensible what they do. But I do not 10 want to stop publications of books like h e__aAike? I do not ~w=ant to stop publications of books like The Terrorist 12 Network. I do not want to stop publications of books that 13 we all think are important to be kept forward. And whether to r,.- rnt they would fall within the purview of this is a real 15 Question. 16 I am not being facetious. I am being serious about 17 that. So thank you very much.\ I apologize for the delay 18 and the ability to make an opening statement midway into the 19 qu&stioning. 20 Senator Denton: Well, thank you, Senator Biden. I too 21would not be interested in stopping publications of books 22 like The ike or h e ~o S N? wo~k? TT1i _ JKQ was a 23 novel with fictional characters, and I do not want to so 24 abruptly take a difference with you, because I want to 25 express first my admiration for you in this field, ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 pprove or Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 especially In your invaluable leadership in the Drug 2 Enforcement Administration area in which we share activity. 3 But I do believe that The Spike, being a novel, and The 4 Terrorist Network, which contained information on identities 5 derived from foreign services, do not really constitute 6 arguments against the passage of this bill -- at least that 7 is my persuasion. Senator Bidens They may not, Mr. Chairman. I am 9 anxious to see. 10 Senator Dentons Well, then, why do we not just ask him 11 outright if you think this bill is going to be 12 unconstitutional? Mr. Willard; Mr. Chairman, it is our position that the 14 bill is constitutional, and we do not have any doubt that it 15 will be sustained as drafted, S. 391. 16 Senator Dentons That of course was in the letter which 17 was sent from the Department of Justice to the Chairman of 18 the Committee on the Judiciary. So we did have that 19 information ahead of time, but I am glad to get it on the 20 record during this hearing. 21' I have only one more question and then I will turn the 22 questioning over to Senator East, and then Senator Biden. 23 Mr. Willard, do you have any suggested amendments to S. 24 391 to render it more effective in the prosecution of 25 unauthorized disclosures of the identities of agents and ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE_, S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01 : GIA-RnPRRnnna2lfl nn^^-nnn_nn~c 1 sources? 2 Mr. Willard: Yes, Mr. Chairman. I mentioned briefly 3 in my prepared statement the addition of an attempts' 4 provision for Section 601(a) and (c). We believe that such 5 provisions are common in the criminal law, and that these 6 Sections 601(a) and (b) not being controversial, it would be 7 appropriate to include an attempts' provision in those 8 sections. 2f ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01 - (1.IA-RnPR4nnnn)1nQnnn~nnnann^~ Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 We have submitted suggested language for such a 2 provision to the House Intelligence Committee in response to 3 their request, and we would make that available to this 4 committee, as well. We also suggested the addition, at 5 least in the legislative history, of a definition of 6 "foreign intelligence activities." There would be no doubt 7 that this bill is intended to cover the full range of those 8 activities, and is not limited for example to one facet. 9 Senator Denton: So your amendments would not include 10 any increase in severity of penalties, for example? 11 Mr. Willard: No, Mr. Chairman, we have not considered 12 the severity of the penalties. I think we agree with 13 Director Casey that the important thing is swift and certain 4 punishment for criminal offenses; and the actual length of 'the sentences and the amount of the fine is not as important to us. 17 Senator Denton: Senator East? Senator East: Thank you, Mr. Chairman. I would just like to take a moment to make an 20 observation on the distinguished Senator Biden's comment on 21? this matter of constitutionality, so I really am not 22 directing my question at Mr. Willard. That is, I do agree 23 with his -- personally, my own agreement would be that the 24 Act as it stands is constitutional.. 25 The trouble I have is that if we constantly assume that 400 VIRGINIA AVE., S.W., WASHINGTON. D.C_ 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 this expert or that, that their voice is determinative of 2 the matter, then in effect you would never really draft any 3 legislation, it occurs to me. 4 Now Mr. Kirkland is a distinguished constitutional 5 scholar, but of course there are many others. As we all 6 know, in the study of constitutional law, reasonable-minded, 7 fair-minded, well-intentioned scholars can differ over 8 constitutionality. In terms of Mr. Kirkland, I would 9 suggest that his opinion could be "a" factor that one might 10 wish to weigh in determining constitutionality, but it 11 certainly ought not to be determinative and decisive. 12 The particular section here in question that Senator 13 Biden was directing his comments to, the Section (c), I 14 would contend -- not suggesting I am in the same league as 15 Mr.\Kirkland, but as a lawyer and as a holder of a Ph.D. in 16 Political Science, I will just throw in my two cents' 17 worth. I think it is constitutional. So one can run through that gamut. I think it is all 19 very valuable to get comments on constitutionality, but 20 ultimately of course the tribunal that would determine that 21"would be the United States Supreme Court. And as one who is 22 greatly covetous of protecting the idea of separation of 23 power, I would just as soon have the Supreme Court 24 ultimately make that determination, as opposed to Professor 25 Kirkland at the Law School at the University of Chicago. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 110 A I One other comment if I might, Mr. Chairman. I am very 2 solicitous of the very perceptive remarks Senator Biden 3 makes, and I am not suggesting that one might not come up 4 with some alternative to this; but the trouble I have, there 5 seems to be a general concensus among all of us that we need 6 to do something. I am just concerned that we do something 7 effective; that we not say= Yes, there is a genuine need. 8 And then in describing it in statutory language, we simply 9 define any remedy out of existence; that we make it so 10 difficult to apply or to enforce, that it not have any teeth 11 in it so it would give us a false sense of security. 12 We thought we were protecting our intelligence agents, 13 and in fact we were not, because of the nature of the 14 languayc. To me, this language in (c) is straightforward. ;5 It is c1car. It involves intent. It has all of the 16 charartPristics that we associate with the criminal law: 17 intent, action, conduct designed to accomplish ends contrary 18 to the well being and to the best interests of the United 19 States. 20 Since we all agree that there is a great need for it, I 21 wholeheartedly commend this language to all members of the 22 subcommittee, and ultimately to the Judiciary Committee of 23 the United States Senate. 24 There is a demonstrated need to protect our agents. As 25 we see the growth of the pattern of terrorism, as we see the ALDERSON REPORTING COMPANY. INC. Approved For Release 2007/03/01 C1S~P 1 ~Pbl Og~C3f T~o"0~~15?~24 (Za2) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 growth of the pattern of subversion in the world as an 2 instrument to further national and ideological aims, there 3 is an enormous responsibility on the part of this Congress, 4 this Senate, this Judiciary Committee, and this subcommittee 5 to try to come up with a bill that is going to protect those 6 people that we put out on the front line and ask to try to 7 do the job of protecting us, and anticipating threats to our 8 internal security. 9 Was it not Justice Jackson who said one time that the 10 Bill of Rights is not a suicide pact? Indicating that we of M- course want to protect First Amendment rights. It is like 12 any good thing in the area of political theory; You have 13 many things to balance. 14 We not only want to protect the right of freedom of 15 speech, but also society certainly has the right to protect 16 itself against genuine threats to its internal security. I 17 would contend that the greatest threat to freedom of speech 18 today in America comes from the use of internal subversion 19 and the threat to civil liberties through the use of 20 terror. And certainly fair-minded and reasonable-minded 21 'people ought to be able to find a way of protecting 22 themselves from that kind of thing. 24 do that. I would like to feel, when we are finished with 25 all of this hearing, if you put it in balance and weigh all 400 VIRGINIA AVE., S.W., WASHINGTON, O.C. 20024 202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO210R000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 the things we are trying to do -- protect First Amendment 2 rights, protect security, and so on and so forth -- that we 3 would come down on the side of: This is a good bill; this 4 is a strong bill; it is a solid bill; it is well thought out 5 and it clearly defines the conduct to be forbidden. In 6 short, it is not vague and hence unconstitutional. 7 So I would support Mr. Willard in his testimony, and do 8 feel very strongly we are on the right track, Mr. Chairman. 9 Thank you. 10 Senator Dentonz Thank you, Senator East. That is 11 particularly valuable coming from a political scientist who 12 has expressed himself so well. 13 Senator Biden? Senator Biden. Thank you, Mr. Chairman. 15 I concur with the elements that Senator East has laid 16 out, Mr. Willard, and I would like to question you about 17 them a little bit. That is, I concur that we have to do '-18 something. The issue is: Can we do something effective? ?^sn#g My concern about the constitutionality is that I can 20 think of nothing worse than passing a bill that may be 21' unconstitutional on its face, having the court rule it is 22 unconstitutional, having been given a false sense of 23 security the American people and the intelligence community 24 can further undermine the credibility of the entire judicial 25 and political system by demonstrating that we not know how Approved For Release 2007/03/01 :8IAR~~~~P6n8~z1"88got62~(ZOZ) 554 -2345 Approved For Release 2007/03/01: GIA-RDP83MOO21OR000300060015-2 1 to draft a bill to protect them. 2 So "effectiveness" is the issue; not whether or not we 3 need a bill. I will get right to the point. The Professor 4 pointed out that this has all the\elements. The first 5 element, that he "knowingly set ou't" is the most essential 6 element in a criminal offense, "intent." He specifically 7 stated, "intent." 8 My question iss Our bill differs from the House bill. 9 The House bill uses the words "with intent." Our bill says 10 "with reason to believe". I would like to pursue that with I would move that we amend it to say "with intent" 12 like the House bill, exactly like the Senator says we 13 should. Now he did not say that we should amend it, but 14- ::. :.--"intent" is an important element. 15 I think that we should be clear. I think we should be 16 clear, like we try to do in all our legislation now. We 17 want to be crisp and clear so there is no misunderstanding. 18 ii'll reasonable person has little difficulty understanding 19 T' phrase ,with intent". Reasonable women and men could 20 disagree about the phrase "with reason to believe". 21 So would you support the stronger language of "with 22 intent" as opposed to the language "with reason to believe"? Mr. Willard: Senator, as I testified before the House 24 Intelligence Committee, the Department of Justice would 25 support either bill. We have a preference for the wording Approved For Release 2007/03/0 v~~~,NI [S'P$3V00jjSW6d8~bb~6'i ssa-z~.s Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 of S. 391 as it stands now. We think either bill would be a 2 great improvement over the present situation, and both bills 3 would be held constitutional and would be enforceable. 4 Senator Biden: You would not object to my moving to 5 amend this bill to conform with the house bill to use the 6 phrase "with intent", then? Is that correct? 7 Hr. Willards Well, we have reservations about that. 8 We have a preference for the Senate version as it stands 9 now. We think it would be more easily enforceable. 10 Senator Biden: Why? 11 Hr. Willard: Well, we think there could be some 12 confusion on sort of subjective-intent test; that a 13 defendant who is prosecuted under this section might be, 14 "Well, my intent really was not to impair and impede 15 intelligence activities; my intent was to promote public 16 dialogue on these issues," or "to expose wrongdoing." And 17 so, "Although I knew good and well that it was going to -18 impair and impede intelligence activities, in my heart of hearts I really intended something else to happen." Senator Biden: Well, is that not the same kind of 21'standard we have on almost every other criminal offense? 22 There are some that we do not, but by and large people come 23 before juries and they say, I knew I was shooting Cock 24 Robin, but I did it in self-defense. In my heart,. I had no 25 intention to kill him. Approved For Release 400 : CIA RDP83M00210R000300S b~bj a~2OZ, 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Prosecutors deal with that every day. For example, it 2 seems to me that the "with reason to believe" standard 3 really imposes an additional burden on the government. In 4 the view of all the publicity surrounding this issue that it 5 has had already, will have, and should have, will not 6 everyone possess a "reason to believe" that foreign 7 intelligence activities will be impeded if anything is 8 disclosed? 9 I mean, is that not going to be an argument. that is 10 even fuzzier to make? Will you not be able to stand up and 11 say -- I can picture, having been a trial lawyer handling 12 criminal cases, someone standing before a jury saying: 13 Ladies and gentlemen of the jury, if you have read -- and 14 take out the last two years' newspapers -- every one in 15 America knows our intelligence agency is under siege. 1 16 Everyone knows that. Any reasonable person would have 17 "reason to believe". They would have to be stupid. "Did 18 you not read the newspaper the last 12 years?" I mean, that becomes a fuzzier standard. Why do we not 20 get tough? Why do we not have the tough, clear, precise 21 ~standard of intent? Mr. Willard: Well, Senator, I would like to first 23 point out that there is an "intent", standard in the Senate 24 bill as it is drafted now. What we are talking about is not 25 "should there be an intent standard?" But, should there be Approved For Release 2007/03/0 f0:?~I~,G KUF't5.Sodb2 I UKUUU3dd6 I Y02) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 two intent standards? 2 Senator Denton: Exactly right. 3 Mr. Willard: That is what the House bill contains. 4 Senat-or Biden: Because there are two separate things 5 we are going after; two separate items. As I tried to 6 explain, this bill essentially has two parts. It is 7 essentially broken down into three elements. The first two 8 elements, there is no question. The question is where 9 somebody signs up as an agent and says: Hey I sign on. In 10 return for -- every American can understand this -- in 11 return for access to this information, because now I am 12 going to be given access, I get a "classified" clearance; I is am making a promise, and I promise that if I ever reveal any this, you all can hang me. That is very different than somebody who is no part of 3b aii agency, has no clearance, has no access, goes out and 17 compiles from other information, rightly or wrongly, 1t3 ilrf ormation. The reason why there are two intent standards Ito make it clear that we are dealing with two different 20 situations, fundamentally different. Fundamentally 21 different, whether a reporter writes an article that exposes 22 an agent, and whether a CIA agent goes off and sells to the 23 foreign government access and/or just flat-out publishes it, 24 like Mr. Agee. I do not think anybody has any doubt about Mr. Agee. Approved For Release 2007/03/01:GrlA ~RDP83M0 ,Up 8b% o%d~1l5- ?2 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 We should lock, slam him away, in my opinion. The question A 2 is: Are we going to have, as they say, "a chilling 3 effect"? Why not make intent clear? We make intent clear 5 So even though there are two separate parts of the 6 bill, we are not setting up two "intent" standards. There 7 "ain't no such thing." You cannot have double "intent." 8 You either intend; or you do not intend. 9 So for example, would not republication in the United 10 States of the names of our covert agents which had been viously published overseas constitute a violation of this 12 bill? Let us say there is an article in Le Monde; a French 13 newspaper person publishes the names of our agents. Somehow ;4 he gets ahold of them. Obviously we cannot punish the 15 editor-in-chief of Le Monde; but, The New York Times reads 16 Le Monde and reprints the article. Are they guilty of a 17 criminal offense under this bill? Mr. Willard; Well, Senator Biden, I think your 19 hypothetical illustrates the advantages of a "reason to 20 believe" standard. Under that standard, if the identities 21 have already been widely published, no reasonable person 22 would believe that an additional publication would impair or 23 impede intelligence activities. Senator Biden; Oh, do you want to bet? I will bet we 25 have 50 reasonable people here in the Congress that would do Approved For Release 2007/03/01 : CIA-RDP831VI0O21 R0~0T~3~b~86Bo~j ( o2) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 it right off the bat. 2 (Laughter.) 3 Senator Biden: No. Really and truly, as a.famous 4 American once said: In your heart, you know I am right 5 about that. 6 (Laughter.) 7 Senator Biden; You really do. Seriously. I mean this 8 sincerely. You know darn well that if The New York Times 9 republished an article that appeared in a French newspaper, or a Cuban newspaper, or a Venezuelan newspaper, that reveal 11 the names of agents, there would be people on the Floor of 12 the United States Senate and the House of Representatives 13 who would be saying that that was reprehensible action on 14 the part of The New York Times and we should do something 15 abuu that. 16 Mr. Willard; Under certain circumstances, it could be 17 reprehensible. -Senator Biden: Right. If they had the intent. 19 R-;!t ? If they had the intent. How do you prove they had 20 reason to know, in that case? Nr. Willard; I respectfully disagree, Senator. I 22 think that the test should be the relatively objective one 23 of whether the Venezuelan publication had been so widely 24 circulated that it would be reasonable to believe that an 25 additional publication would or would not be harmful. ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Senator Biden: For example, let us assume you could 2 prove it had only been published in Venezuela. Would there 3 be reason to believe that republication in the United States 4 would be a violation of this law? 5 Mr. Willard: I think it might depend on where the 6 agent was stationed, whether he was stationed in Venezuela 7 or in China. 8 Senator Biden: Let us say he was stationed in China. 9 Let us say he was stationed in Canada -- not that we have 10 any there. I mean, pick someplace close, other than 11 Venezuela. Seriously. 12 Mr. Willard: If the original publication had only 13 limited circulation in a foreign country in a foreign 14 language, then I think it would be reasonable to believe 15 that the republication by a major publication in the United 16 States in English would be harmful to American intelligence 17 activities. But it would not turn on whether The New York 18 Times was critical of the government, or what their hidden 19 motivations were. 21 Senator Biden: That is right. Mr. Willard: It would turn on the objective standard 22 ofxwhether a reasonable person would think that intelligence 23 activities would be impaired or impeded. Senator Eiden: So let us carry that a little further. 25 Picture the situation in the editorial room of The New York Approved For Release 2007/03/01408IA RD~~Y371b(2'1~~~~B~~U I~-L~202) 551 235 Approved For Release 2007/03/01 : CIA-RDP83MOO21OR000300060015-2 1 Times. They have a Venezuelan paper in front of them. What 2 do they do, then? Is their affirmative obligation to send 3 an investigative reporter to Venezuela to determine how 4 widely the paper is circulated, how many people have read 5 it, whether or not it has access in other countries? I am 6 not being facetious. I am being serious. Would they then 7 have that affirmative obligation? 8 Mr. Willard: I think that anyone who would otherwise 9 meet the elements of the statute who would consider 10 publishing the identity of a covert agent will have to :,r,.:ponside r whether or not that would be harmful or will impair 12 or impede the foreign intelligence activities of the United 13 States. 14 Senator Biden; How do they make that judgment? In 1.1'LA-1er words, see, you are putting on them the judgment of It--'A,'ether or not -- how do they have "reason to believe"? I 17 mean, you just said that one of the things it would depend ib on is whether or not the agent is in Venezuela, or whether 19 i.t: is in China. I mean, how does the newspaper make that decision? 21 S'eriously. What sort of manual can we give them to say: 22 You do not publish this one; but you can publish other ones, 23 or reprint other ones? Mr. Willard; Well, we think that by using an objective 400 VIRGINIA AVE.. S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 ways than a standard that would turn on their specific 2 intent, like draw into question evidence such as whether 3 they were pro-CIA or anti-CIA, for example. That would not 4 be relevant. Under a specific intent standard, prying into 5 the political views of the defendant might occur in a 6 trial. And that is one reason why the Justice Department in 7 the past expressed a preference for the Senate version of 8 this standard rather than the House version. 9 I would like to, if I could, go back and correct 10 something that I think I may have misstated. Senator Biden: Sure. 12 Mr. Willard: When I mentioned two "intent standards," 13 there are two intent standards contained in Section 601(c) 1d. OL its counterpart in the House. As the Senate bill now reads, it provides; "Whoever in 16 the course of a pattern of. activities intended to identify 17 and expose covert agents"; so there is one intent standard 18 that is still in there. Senator Denton: Which has to be proved. Hr. Willard; The question, then, is whether there 21 should be a second intent standard regarding the effect of 22 the activities on foreign intelligence activities in the 23 United States. So again what we are talking about here, even in 25 Section 601(c), is whether we should have one intent Approved For Release 2007/03/0r:554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 standard or two intent standards. 2 Senator Biden: Well, let me ask it another way, then. 3 Why would it not be more consistent to eliminate the first 4 intent standard? Why would we not say, then, to be 5 consistent, for all the reasons you just said, "have reason 6 to believe"? 7 Senator Denton: Because, if the\Senator would yield, I 8 am not a lawyer, but I am not bad at logic. It says -- 9 Senator Biden; Well, being a lawyer does not help with 10 that. Senator Denton; It is more libertarian to have it this 12 way, "in the course of a pattern of activities intended to 13 identify and expose covert agents." You must prove the 14 intent there, and you must prove the nature of the course of the pattern of activities. So it is more liberal to have it 16 in that way. Senator Biden: Well, I am for it being liberal 18 throughout; but let me move on to another section, if I 19 may. I have more questions. 20 I appreciate your explanation, sir, but let me be sure 21WI understand. You would not oppose -- you would support 22 either version. You prefer the Senate version, but you 23 would support either version? Is that correct? 24 - Mr. Willard; That is correct, Senator. Senator Biden: With regard to -- bear with me just a ALDERSON REPORTING COMPANY, INC. Approved For Release 2007/03/01 4t AR HP6'TNI6(YZ ~IS8~$b'06bb0 5 2~202~ Ss~ 2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 4 1 second here, Mr. Chairman -- the issue of, as I understand 2 it, the Sterling book, The Terrorist Network, if she 3 published information about hostile terrorist groups that 4 she gained from a U.S. official, not to disclose the name of 5 the official or CIA groups, but if she found through her 6 contacts with CIA agents the fact that there was a terrorist 7 group operating out of any part of this country within this 8 country, and then went on from there to substantiate that 9 and wrote a book exposing the terrorist network, not 10 exposing the agent, and she gained that, and it was known, -1 she knew and a reasonable person would know that the hostile 12 group could figure out where she got that information, she 13 would have "reason to believe" that by publishing the 14-information about the terrorist network that she would be 15 exposing the source without naming the source, would she be 16 guilty of a violation under this section? 18 in the course of a pattern of activities intended to identify and expose covert agents? I would not. 20 Senator Biden: With all due respect, Mr. Chairman, I 21' know your view. I am curious at what the Justice 22 Department's view is. I think I know your view. Mr. Willard: I think I would have to agree with 24 Senator tenton that this statute includes multiple 25 elements. So the fact that someone might be seemingly 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 ooroved For'Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 engaged in benign activity might satisfy one or two of these 2 elements does not mean that a prosecution would be 3 possible. I think that is why the drafters of this 4 legislation put in so many elements. It makes it fairly 5 difficult to puttogether a case. 6 Senator Biden: Now let us assume -- the next step. 7 Let us assume that someone were to publish an article or 8 write a book that had the dual intent of exposing a 9 terrorist network and an agent in this country who that 10 person believed was part of the terrorist network, a "Omole." The pattern of activity was designed to go after 12 people who were double agents, to uncover people in our 13 intelligence community who were double agents. In doing so, e wrote an article or a book identifying someone, as an lb 'American agent for the express purpose of making the case 1-, that they were. a double agent. Would she be guilty of 17 violating this law? Nr. Willard: Well, it is difficult of course to deal with hypotheticals. The one you pose immediately raises the 20 question of whether one would have reason to believe that 21" activity would impair or impede the foreign intelligence 22 activities. Senator Biden: Well, I guess it would, though, would 24 it not? Is there not reason to believe that if you were 25 able to name someone who is deep cover, if you had access to 400 VIRGINIA AVE. S. W., W INGTON DC. 20024 (202) 554-2345 Approved For Release 2007/03/01 : CIA-RDP83M00210 000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 naming that, would that not have a chilling effect? Is that 2 not what happens now? Does it not have a chilling effect, 3 to say the least, upon the British intelligence or the 4 French intelligence, even if it was for a purpose that was a 5 laudable one? Would they not ask -- I can guarantee you, 6 being on the Intelligence Committee, they would ask: I 7 wonder how she got the name in the first place? 8 Mr. Willard: Well, I would also like to point out that 9 under Section 601(c), someone who has valuable information 10 of that sort can communicate it to the House and Senate Intelligence Committees. Senator Biden: I understand that, and I think they 13 should. I am just asking the question. I am not saying ,4?that they should not be prosecuted, I am trying to hone in 15 on this so we do not pass at had law. 16 If she did it, if someone -- forget Ms. Sterling; let 17 us not talk about her -- if a newspaper person for the 18 Zxpress purpose of exposing corruption "and/or" a double 1g>-agent within our intelligence network published the name of 20 that agent or other agents working with that agent for the 2{ purpose of pointing out that they were a Mr. Philbee, would 22 they be guilty under this law? - Senator Denton; Although the Senate may know my views, 24 as a Senator I am qualified to offer them. Senator Eiden; I know that, Senator. 400 VIRGINIA AVE., S.W.. WASHINGTON O.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Senator Denton; I do not know how it could be fitted 2 into a pattern of activities intended to identify and expose 3 covert agents if the overall impact of her thrust or his 4 thrust were to help rather than impede or impair foreign 5 intelligence activities in the United States. In that case, 6 1 think it would, and since there would be no pattern of 7 activity intended to identify and expose covert agents, per 8 se, I would say that neither of those specifications are met. 9 'Senator Biden: Well, I am delighted to hear that, Mr. 10 Chairman. Now maybe I could rephrase it again for our tness. Maybe what I should do is direct each question to 12 you, first, and then to the witness. 13 (Laughter.) i., Senator Denton; No, but we are getting short on time. lb-'normally we have a 10-minute limit. We are trying to get through at 12:30. 17 Senator Biden: Fine. I will yield my time back now 18,'a'ud wait for my next round for 10 minutes. I yield to you, 1 ,;T'. Chairman, because I have exceeded 10 minutes, and I will 20 wait until your 10 minutes is up, and Senator East's, and 21 'then I will ask mine again. 22 Senator Denton; Well, the point is that we do have 23 witnesses from the American Civil Liberties Union, and one 24 from the Association of Former Intelligence Officers, at 25 which time if we are not satisfied, we will recess rather ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024-(202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 than extend this heaj:ing beyond the time at which our 2 participation in the voting and so forth and other 3 activities would preclude questions that you or others would 4 like to ask. 5 Senator Biden: But I assume we would be able to have 6 another day of hearing, Mr. Chairman, like we always did in 7 the past when we ran this committee and anyone sought, not 8 for the purpose of impeding, to seek information. 9 I wonder, it may help if I just ask you the questions, 10 sir, and you answer the question, and then we would not be 11 taking out of my time as much. Let me ask it again: 12 If a newspaper person sets out in a pattern of activity 13 to expose double agents within, that they believe to be 14 double agents, a pattern of activity, they spend the next 15 three years of their life doing nothing but devoting 16 themselves to finding agents they do not believe are good 17 ones, finding agents they believe are on the payroll of 18 somebody else, and in the process of that effort they were 19 to write articles and/or books that specifically name agents 20 who they then allege are double agents, would or would not 21 they be guilty under the law, knowing that by exposing the 22 names they would reveal that they had access into the inner 23 sanctum of, or they would not get the name if they did not 24 have access, would not that put them in a position, of being 25 subject to the "reason to believe it would impair"? ALDERSON REPORTING COMPANY, INC. 400 VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Mr..Willard: I am not sure that I can agree that I 3 Senator Biden: Would you believe that it is~pcssible Mr. Willard: It would seem to me that the exposing of 6 communist double agents in the ranks of the CIA would assist 7 American intelligence activities and not impair or impede 8 them. 9 Senator Biden: It surely would. But do you think it 10 would assist? Why do you think it is, if I may ask you -i; specifically, why do you think it is that we in the 12 Intelligence Committee and in the intelligence community do 13 not expose agents who are double agents? Why do you think 1A we do not do that? Do you realize that we do not do that? 15 Do you realize that when we find out there is something awry 16 within the community, if by naming the person as a double 17 agent we will in fact jeopardize an operation, we will in 18 tact somehow blow the cover of other people, that we do not 19 do ,it? "Do you realize we do not do that? Mr. Willard: Well, then, I would suggest that the 21journalist whom you have hypothesized should take advantage 22 of the provisions of Section 601(c) and inform the committee 23 of these double agents. Senator Biden: I agree. The question I have is: If 25 they do not, are they guilty of a crime? That is all I am Approved For Release 2007/03/Of Y02) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 2 Mr. Willard: I think the "reason to believe" standard 3 is one that has to consider all the facts and 4 circumstances. It is hard to predict from such a bare 5 hypothetical exactly how it would apply. 6 Senator Biden: Would you acknowledge that it would at 7 least raise a question? Mr. Willard: I think, Senator Biden, you have raised a 9 question. 10 Senator Biden: Thank you. 11 (Laughter.) 12 Senator Biden: Thank you very much. I have no more 13 questions for this witness, Mr. Chairman. Thank you for 14 your indulgence. 15 Senator, Denton: Senator East? Senator East: Mr. Chairman, I think we have exhausted 17 this subject. I appreciate that you have other witnesses, 18 and I do not wish to unduly impose upon their time, so I 19 would like to propose that we proceed with our next 20 witnesses. 21 Senator Denton; Thank you. And as usual, we will hold 22 the record open for written questions to be submitted to the 23 witnesses. Thank you very much, Mr. Willard, for your helpful 25 testimony this morning. VI NI Av W. WASHINGTON. D.C. 20024 (202) 554-2345 proved For Release 2007/03/01 : A-83Ab 21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Mr. Willard; Thank you for your courtesy, Fr- 2 Chairman. 3 Senator Biden; Thank you, Mr. Willard; it was a tough 4 job. 5 Senator Denton; I would like to welcome Mr. Morton H. 6 Halperin, Director, Center for National Security Studies, 7 American Civil Liberties Union; and Mr. Jerry J. Berman, 8 Legislative Counsel, American Civil Liberties Union, and ask 9 them if they would summarize their statement as the -last 10 witness did in the interest of time. Your entire statement be in the record, gentlemen. 21 Approved For Release 2007/03/01? YR- vimbwo2r*~88~bO &60015 2 (202) 554 2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 STATEMENTS OF MORTON H. HALPERIN, DIRECTOR, CENTER FOR 2 NATIONAL SECURITY STUDIES, AMERICAN CIVIL LIBERTIES UNION; 3 AND JERRY J. BERMAN, LEGISLATIVE COUNSEL, AMERICAN CIVIL 4 LIBERTIES UNION. 5 Mr. Berman: Thank you, Mr. Chairman, and Members of 6 the Committee. 7 We want to thank you for extending the American Civil 8 Liberties Union this opportunity to testify on S. 391, the 9 Intelligence Identities Protection Act of '1981. The 10 American Civil Liberties Union is a nonprofit and 11 nonpartisan organization of over 200,000 members dedicated 12 to defending the Bill of Rights. We have testified many 13 times on this legislation over the last several years, and 14 we also have interests in other matters now before the 15 Subcommittee on Security and Terrorism. So this probably 16 will not be our-last appearance before this committee. Mr. Halperin, to my left, and myself have a joint 18 statement, but we take turns delivering testimony on this 19 bill and it is Mr. Halperin's turn. (Laughter.) Mr. Halperin: Thank you, Mr. Chairman. I will summarize very briefly what seem to us the main 23 points about this legislation. First, as Senator Leahy noted before, there is a real 25 question in our view, and one which seems to be shared by Approved For Release 2007/03/01 :tY,-WM5Mbt2bb8&O6QPga12o2) 11-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 the Heritage Foundation, about whether the real problem here 2 is the action of individuals who publish names, or whether 3 the real problem is not the fact that the CIA and the United 4 States Government has put information in the public domain 5 which while, as Senator Chafee notes, does not say these 6 people are CIA agents, does enable people as the CIA has 7 said again in its testimony today with a high degree of 8 accuracy to identify .who are the CIA agents serving abroad 9 under light cover. The fact is that if those names can be identified with h degree of accuracy by a small number of Americans 12 working in the United States, they can equally be identified 13 with a high degree of accuracy by foreign groups who would 14 oruuose to do harm to those individuals by threatening their 15 lives, or doing physical harm to them, or disrupting their 16 activities. We think the primary focus should be on taking steps 18 which make it impossible for foreign terrorist groups or 19 An, --Lican citizens with a high degree of accuracy, with not a 20 substantial amount of effort, to identify covert agents. We 21 would suggest that this legislation is almost entirely 22 symbolic in that it is, as the testimony has said, 23 suggesting that the Congress of the United States does not 24 approve of naming names; but we suggest that legislation 25 which impinges on the First Amendment should not be passed Approved For Release 2007/03/09?:1n5k1- 3 f' ftVM"0e66M21CS- 2) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 for a symbolic purpose; that such legislation should only be 2 passed if it can have some real effect on protecting lives. 3 We think the case has not been made that this 4 legislation,'and particularly Section 601(&), will 5 real effect unless steps are taken to provide adequate 6 cover. And if those steps are taken, the protection would 7 not be necessary. 8 Now second, it is the view, as has been noted, not only 9 of the American Civil Liberties Union but of a substantial 10 number of legal scholars, that this section as now drafted 11 is unconstitutional because it makes it a crime to sift 12 public information and draw conclusions from that 13 information. There are a substantial number of Supreme 14 Court cases, and it is the view of a number of 15 constitutional scholars, that the Supreme Court has held 16 that one cannot make it a crime for the press to publish 17 information which the press lawfully acquires. 18 This bill would make it a crime for the press to 19 publish information which it lawfully acquires, whether it 20 acquires that information from foreign intelligence sources, 21from foreign governments, from foreign newspapers, from 22 official publications of the United States Government, it 23 would be a crime for a reporter or a scholar to engage in an 24 effort to mine those sources to learn the identities of 25 agents and to publish, for any purpose, even to ferret out ALDERSON REPORTING COMPANY, INC, Aooroved For Release 2007/03/014 CIAGRDP83MS00210 66660~3bC '5402) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 corruption or illegal activities. We think that the 2 Constitution as it has been defined by the Supreme Court-- 3 not simply in the judgment of the American Civil Liberties 4 Union-- prohibits the Congress from passing a law that 5 punishes private citizens who analyze publicly available 6 information and who draw conclusions from it and publish 7 that information. 8 Now we think it is even clearer that the statute is 9 unconstitutional, since the Senate version also lacks any 10 need for a "bad purpose." The Supreme Court in the Gorin 11 case, in analyzing the espionage laws, said they were 12 constitutional because one had to have a bad purpose. One 13 had to intend to injure the United States or give advantage 14 to a foreign power; that if you did things with that 15 puL-lose, with that bad purpose, the Congress could make that it constitutional even if you were talking about seizure of the 17 transfer of information. 18 Professor Kurland is not alone in the judgment that a 19 bad purpose is clearly needed. Professor Scalia, the 20 University of Chicago, now at Stanford, testifying bef ore* 21 thLs House Committee just a few days ago expressed the clear 22 view that the absence of a bad purpose would make the 23 statute unconstitutional. That is the view of almost every 24 person who has examined this bill who is not in fact now in 25 the Justice Department. 400 VIRGINIA AVE.. S.W.. WASHINGTON, O.C. 20024 (202) 554-2345 roved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 The Justice Department has now made it clear, and it 2 did it again this morning, that a bad purpose would be 3 acceptable; that it could accept the House version as well 4 as the Senate version. We think that any chance that this 5 bill has to be constitutional requires that there be a bad 6 purpose; and that it be a bad purpose which goes to directly 7 neutralizing agents' activities or injuring the United 8 States. 9 Finally, I would like to say just a brief word about 10 the question of the inclusion of the FBI. The objection is 11 not to the Inclusion of FBI agents who serve abroad. The 12 objection is simply to the inclusion of FBI agents who serve 13 within the United States who may be involved in spying on 14 American citizens involved in political activities who are 15 suspected of being involved with foreign powers. We think 16 that raises very serious additional constitutional questions 17 about the right of those groups to ferret out informers who 18 may be within their organizations. In our judgment, that 19 carries the bill into another dangerous area for which there 20 is no record at all of necessity. 21 22 We 23 Mr. Chairman, that is a brief summary of our remarks. would be delighted to answer your questions. [The complete joint statement of Yr. Halperin and Mr. 24 Berman follows.-] 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Senator Denton: Thank you very much, Mr. Halperin. 2 Either of you gentlemen may respond to these 3 questions: Do you believe that First Amendment protection 4 should ever give way to national security interests? And if 5 so, under what circumstances? 6 Mr. Halperin; We believe that Congress can pass 7 legislation which punishes individuals who disclose 8 information with the intent to injure the United States or 9 give advantage to a foreign power. That is what the current to espionage laws do. We do not think there is any doubt about ~4.eir constitutionality; nor do we think there is any doubt 12 about the constitutionality of the first sections of this 13 bill, Section 601(a) and (b) to punish individuals who have ,A .tlnrten authorized access to classified information and used 15 that access to learn the identities of agents. 16 We do not believe that it is constitutional to punish 17 private citizens who use only publicly available information 18 and who publish that information without any bad purpose. Senator Dentonz Would you describe the nature of the 20 American Civil Liberties Union as an organization, its 21 purposes and so forth? Mr. Berman. I think I said that at the start. Senator Denton: "Nonprofit," "nonpartisan"? Mr. Berman; Yes. It is a -- Senator Denton: I did not hear any tittering when we Approved For Release 2007/03/01?~Y;~ ~Mbl(2 TffftdMdb a?f 2121 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 said "nonpartisan." I am hearing a lot of tittering on 2 other statements. 3 Mr. Berman: I do not hear any tittering, Senator. 4 Senator Denton: No, I do not in this audience, but I 5 think I would out in the hinterlands. 6 Mr. Berman: Well, I stand that we are a nonprofit, 7 nonpartisan organization dedicated to the defense of the 8 Bill of Rights. You only have to look at the caseload of 9 the American Civil Liberties Union to know that we have 10 cases in the First Amendment area and in other areas where 11 i..i Bill of Rights is affected which cross the political 12 spectrum. I could list some of those cases for you, if that 13 is your wish. Senator Denton: Thank you, sir. On Tuesday, July 8th, 1978, Mr. Berman testified before 16 the Senate Intelligence Committee on S. 2525, and at that 17 time inserted for the record a long memorandum from the ACLU 18 and the Center for National Security Studies. Since that 19 ~+a:~; joint, is there some connection between the ACLU and the 20 Center for National Security Studies? 21 dir. Berman: Yes, Senator. The American Civil 22 Liberties Union -- the Center for National Security Studies 23 is a project of the American Civil Liberties Union 24 Foundation. 25 Senator Denton: It may be relevant, then, in this ALDERSON REPORTING COMPANY, INC, Approved For Release 2007/03/01~00e'111~1~311N}C3b'6~?(fb6(9 f02) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 hearing to note that among other things that memorandum 2 stated that it was the position of the ACLU and the CNSS not 3 to support covert action or espionage activities abroad in 4 "peacetime" and this is a continuation of the quote, "i.e., 5 absent any congressional declaration of war." 6 It would seem to me that since that is not the position 7 of the United States Government, that we might have a 8 conflict of interest here. Is this still the position of 9 the ACLU and the CNSS? 10 Hr. Berman: Yes, it is. It is the official policy of 11 the American Civil Liberties Union. We have advocated that 12 position before the Congress. The Congress has not agreed 13 with us, and has authorized covert operations. We are still 14 prepared, at a hearing \where he where 15 that; but that is t that is the issue, to discuss of the American Civil p 16 Liberties Union. By the way, it does not mean that because we have a 18 position against covert operations that that is the basis for or has any reason why we object to the third section, 20 Section 601(c), of this legislation. 21 Senator Denton: It does strike me as curious that a 22 group containing men as intellectual as you would not 23 realize that every other major power, and indeed every minor 24 power I can think of, does engage in such activities and 25 that it would not be in our interests for self-protection to Approved For Release 2007/03/01:Wp 9 PAffh 620'obT886b.81'S?4 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 do the same. Do you know of any major power that does not 2 engage in these activities in "peacetime"? 3 Mr. Berman: No, Senator, we do not. 4 Senator Denton: Does the ACLU and the CNSS believe 5 that American decisionmakers should be kept informed? And 6 how can this be done without intelligence collection? 7 Mr. Berman: I think we do need intelligence 8 collection, sir. 9 Senator Denton: But, then, not covert action or 10 espionage activities abroad in peacetime? ;1, Mr. Berman: I think the heart of our position goes to 12 covert operations abroad, Senator. The position on 13 espionage, I think there is room for disagreement within the ACLU. I just want to recall that it was not surprising, I 75 think, for the policy statement at that time, given the lb record of revelations of how intelligence collection and 17 covert operations had gotten involved in dubious operations broad, the conduct of secret foreign policy; when our commitment is to open government, and a record compiled by a 20 number of committees before this Congress of illegal and 21"unconstitutional activities directed at American citizens in 22 the United States arising from the same cover capabilities 23 of the United States. The visceral reaction of the American 24 Civil Liberties Union is to protect the Bill of Rights, and 25 to give the widest latitude to the First Amendment and to an 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 open society. 2 We realize the tensions between a national security 3 state and the First Amendment. We try to, within the 4 Congress, to accept the dimensions of the debate and to 5 argue for the widest latitude, and also have supported 6 legislation which attempts, we believe, to strike a balance 7 between national security and civil liberties' concerns. 8 Senator Denton: Well, in this era of intercontinental 9 ballistic missiles, nuclear weaponry of various kinds, the 10 difficulty of ascertaining without a free process of open 11 verification invited by the other governments, how would you 12 see it to-be in our national interest, or even in our realm 13 of survivability possibility, if we did not conduct covert 14 information to find out about the possession of weapons, the 15 degree, the number? Do you support arrest nuclear 16 proliferation? And how can this be done without foreign 17 intelligence? 18 Mr. Halperin; Senator, I want to make it clear that 19 what we have to say about this bill does not depend on the 20 formal position of the ACLU that we should not be engaged in P 21 peacetime espionage. If what you want to do is engage in a 22 discussion about how we learn about Soviet weapons, we are 23 prepared to do that= but that is not what we understood to 24 be the purpose of this hearing, or the scope of this hearing. 25 The fact is that most of the information, if not all of ALDERSON REPORTING COMPANY. INC. Approved For Release 2007/03/01 : aF~B (~2M0Fe TR3C0E~'~ ? (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 the information which we rely on to monitor weapons' 2 deployment of our potential adversaries, is collected by 3 technical means of intelligence, as you know. The ACLU 4 position clearly distinguishes between that and what has 5 been referred to as "human espionage." It supports the 6 technical collection of intelligence by various means. It 7 supports the analysis of that information and the provision 8 of intelligence information to the President and to senior 9 officials. Similarly, in the case of nuclear proliferation. The 11 information about nuclear proliferation is not a secret. 12 the problem is, what to do about it. As numerous Senators 13 have stated on the Floor of the Senate, we know which 14 countries are making nuclear weapons. The problem we have 15 is to deci:e how to deal with that problem. So that I do not think one needs to support particular 17 kinds of espionage if one is concerned about those issues. .18 But I think those views on that issue do not bear in any way 19 on the position we have taken on this legislation. Senator Denton: Well, none of us, especially myself, 21 i$exempt from questioning regarding the philosophy from 22 which we come and how that might color or explain positions 23 that we take. The ACLU and CNSS cannot support the SALT 24 treaty -- I mean, I am surf- you have a view on that. How 25 you can support such treaties when we do not have 400 VIRGINIA AVE.. S.W., WASHINGTON, O.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 verification unless we conduct covert activities is 2 something that escapes me. And I believe, were you to 3 extend-- this is a personal belief -- were you to extend 4 your efforts on behalf of what I believe to be a true love 5 of liberty and get into that field, you would change your 6 position. 7 Mr. Halperin: Senator, with all due respect, the SALT 8 Treaty is something I happen to know a great deal about. 9 Senator Denton; No, I do not mean about the SALT 10 Treaty. I mean about the necessity for covert intelligence '1 overseas against which you have taken a position in 12 general. 13 We have a vote pending. We will recess for fifteen minutes now and come back after we register our vote. 15 [Recess.] Senator Denton; The hearing will resume. I will defer now to Senator East for any questions he Its -night have. Senator East; Thank you, Mr. Chairman. 20 I will try to make my remarks very brief, because I 21 'know of the great time constraints under which we are all 22 working. I am somewhat troubled with the ACLU's position on 23 this matter of protection of internal security. I do not 24 mean to make the philosophy of the ACLU the center point of 25 our discussion, because I appreciate that that would be an ALDERSON REPORTING COMPANY. INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 interesting subject for another forum and you are not here 2 to discuss that, but as commendable as ACLU's efforts are I 3 think in many areas, and you frequently have taken a very 4 unpopular cause on the far left and on the far right and 5 many things in between -- I am just trying to work up to 6 this points 7 One thing that is sometimes troubling to the ACLU is 8 not their devotion to the cause of civil liberties or to our 9 freedoms under the Constitution or the First Amendment, but 10 sometimes an insensitivity to the fact that in the real 11 world of politics we have many things to balance. You have 12 the problem of freedom; you have the problem of security. 13 It reminds me of Thomas Hobbs, the famous Englishman. Now Hobbs was obsessed with security. He thought Co security was the only thing that mattered. So he developed Ib the theory for the modern authoritarian state, which I am 17 deeply resistant to, as I well know you gentlemen are. ;a Hobbs raised a good point: Security is important, but if 19 you raise it to the first principle of politics and exclude 20 everything else, you are going to get some very perverse 21 results -- authoritarianism, and perhaps even ultimately 22 totalitarianism. Now it occurs to me that if you take the ccncept of the 24 individual's freedom, intellectual and in every other way in 25 the broadest scope of the word under the First Amendment and ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE.. S.W.. WASHINGTON. D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 the entire constitution, and you elevate that to your first 2 principle of politics and you exclude everything else, you 3 get some perverse results, in the sense that it seems to 4 preclude a really genuinely effective policy of national 5 security. 6 We know that in the real world of international and 7 American politics that this is a genuine problem, a genuine 8 threat. The problem of national security and effective 9 intelligence-gathering is just imperative, it seems to me, 10 to maintain the kind of society we want. If we are not able to strike some balance here, we may 12 in the name of preserving the freedom end up losing it 13 because we are unable to develop the ability to defend 14 ourselves against those who are less sensitive, the 15 authoritarians and the totalitarians. 16 Thus, it strikes me that in your position, gentlemen, 17 that although your intentions are most honorable and I am 18 not questioning that, I have a little bit of a theoretical 19 problem of whether, if you take that position and keep 20 pushing it to the furthest extreme, at some point all of 21'these other things are never considered. For example, the 22 problem of security. I admired your courage in defending the Nazis marching 24 in the Jewish community in Skokie, yet I felt at the time 25 that perhaps Nazis ought not to be parading in Skokie. The 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 purpose was to provoke. The purpose was not really to make 2 any legitimate, fundamental point of communication under the 3 First Amendment. 4 Now these are difficult lines to draw, I agree with 5 you. But in the real world in which we live and move and 6 have our being politically, we have to make those 7 judgments. Sometimes we err. Sometimes we balance it too 8 far in the case of security; sometimes we balance it too far 9 in the case of freedom. But it occurs to me at this point 10 we have a very legitimate problem in this country of facing the threat of international terrorism, of protecting our 12 internal security, of having effective intelligence 13 gathering, and we are going to have to make some kinds of 14 concession in order to be effective in that area; and the 15 greater goal will be to defend this system which does allow 16 us, with all of its shortcomings, in the long run to have a 17 greater degree of freedom than most countries clearly enjoy 18 in the world today. I am just concerned here -- and then I shall be 20 silent-- whether your objections, as commendable as they 21 are, ultimately if you strip it down and probe it to its 22 deepest level of rationalization, there really is not 23 anything we could effectively do in this area in terms of 24 protecting CIA agents or') other agents from being exposed by 25 private citizens or others, destroying their effectiveness, ALDERSON REPORTING COMPANY, INC, 4 VIRGINIA AVE. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: ~GIA-RDP83Nf0021 OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 imperiling their lives and thereby imperiling the national 2 security of the United States? 3 At some point this Congress, and I think reflecting the 4 will of the Ameri=an people, is going to want to want to 5 find a way to protect those people. It is a legitimate 6 national concern to national security, and it is 7 indispensable in order to preserve the freedoms we all 8 cherish under the first amendment. 9 Let me rest there. Do you think I am correct in that 10 assessment? Mr. Halperin: Senator, I think we have no doubt, and 12 we actually testified last year that we were certain the 13 Congress would pass a bill last year. I do not think we 14 have any doubt that the Congress will pass a bill; nor do we 15 have any doubt that it will include a section (c). 16 We have tried, therefore, both to state our principal 17 constitutional objections to that; but also to try to offer 18 some advice to the Senate and to the House on the assumption 19 that you are going to go forward of ways to make the bill 20 narrower, to reduce the chilling effect on First Amendment 21 'debate. One of the suggestions we have made is that you include 23 a "bad purpose." Of the view that that is required by the 24 Constitution is a view that Professor Staliere has put 25 forward, that Professor Kurland has put forward, and neither (202) 554 2345 Approved For Release 2007/03/01 tygl, l 060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 of them have ever been accused of being single-mindedly 2 dedicated simply to civil liberties. But I think both of 3 them are people who have a deserved reputation for balancing 4 the kinds of considerations which we have talked about. 5 The Justice Department has said that the bill with a 6 "bad purpose" would accomplish the purposes of the 7 legislation. We have also urged, and I would urge again, 8 that you narrow the scope of the bill to cover the people 9 that everybody this morning talked about should be covered. 10 If you look R ",at what was said this morning, both before j1 you came in and after you came in, people talked about 12 people we send abroad to protect us, employees of the United States, those who serve the United States abroad. We would 4 urge you to limit the scope of the section (c) to those ..5 individuals. 16 What we have said is: If you do those two things, if 17 you limit it to individuals who are serving the United 18 States abroad, what we talked about this morning, and if You 20 21 require the kind of generalized bad purpose that has been urged on the House Committee, you will have substantially reduced the constitutional problem. We would still have our 22 principal objection that we would state, but we would in 23 those circumstances feel that the Congress had done as good 24 a job as it could do in balancing the different pressures 25 that were upon the committee and upon the Congress. ALDERSON REPORTING COMPANY, INC. Approved For Release 2007/03/01 : CIS?I t5pgW6b:jft~ b%T0o b8152~?241202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Senator East: Let me just, if I might, ?r. Chairman, 2 one follow-up question and then I will be silent. 3 Senator Denton: You are well within your time. 4 Senator East: On this "bad purpose" point that you 5 make a great deal of here, I find "bad purpose" here. That 6 is, implicit in this statute is the idea of knowingly and 7 purposely giving information that would identify these 8 people for the purpose of interfering with intelligence 9 gathering on the part of the United States, knowing that the 10 United States was attempting to protect that. To me, there 11 is a "bad purpose". The "bad purpose" is trying to disrupt 12 the orderly and effective operation of intelligence 13 gathering which is designed to protect our internal 14 security. 15 Now those who are trying to frustrate that process, to 16 me that is a "bad purpose". 17 Mr. Halperin: Yes. I think that is -- Senator Biden: You do not disagree with that, do you? Mr. Halperin: I agree that that is a bad purpose. It 20 is just not in the bill. 21' Mr. Berman: It is not in the bill. Hr. Halperin; And that is what we are urging you to 23 put in the bill. 24 Senator East: Well, to me, when you say it is not in 25 the bill, it is niggling. You could say that about any kind 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 of criminal definition. You mean you want the words "bad 2 purpose" in there? 3 Mr. Halperin: No. We want the purpose of "intent to 4 disrupt" by the act -- 5 Senator East: Well, I would simply contend that it is 6 there; that the notion -- maybe it blends in with Senator 7 Biden's remark. You do not find "intention" in here, you 8 say. You 3o not find "bad purpose". I do. Intent to do 9 certain things with the ultimate end of weakening the 10 security gathering, the data gathering, intelligence gathering effectiveness of the United States Government> 12 Maybe I am missing the point, gentlemen, but is that 13 not i. a bad purpose? Mr. Halperin: That is a bad purpose. The bill does 15 not require that you have that intent. A person who 16 deliberately discloses names that he has gathered in a 17 pattern of effort to uncover names is guilty of violating 18-Section (c) even if his purpose is to improve the j intelligence activities of the United States, or expose 20 corruption. 21 What we have urged upon this committee is language 22 which the Justice Department says will meet the purposes of 23 the bill, which is to require this "bad purpose" of 24 disrupting or neutralizing the activities of the 25 intelligence agencies by the act of disclosure. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Senator East; Well, first of all, I think it is a 2 distinction without a difference. It is a very subtle 3 point. But if I do understand what you are saying, I think 4 the effect of it would be to make it impossible to have an 5 effective law by what you are saying, because then you would 6 always be questioning whether there was a "bad purpose". 7 What we do not want -- what we do not want -- is people 8 engaging in this kind of activity of fingering informants 9 which makes that impossible for us as a Nation to carry on 10 effective intelligence gathering. To me, that is a very 11 legitimate, proper, appropriate national goal. 12 This agonizing over the subtlty of language and 13 semantics here I know is critical in the criminal law and the constitutional law, do not misunderstand me, and I am lb-aot questioning anyone's good intentions, but I have an 16 uneasy feeling that if you slice it that thin, actually what 17 you would do is you would appear to be giving us an 16 effective tool, but as a practical matter of application in 19 eenf orcement, there is nothing there. It is an empty hand. Mr. Halperin: Senator, we think it can be enforced, 21'and so does the Justice' Department. I would refer you to 22 Mr. Willard's testimony on behalf of the Justice Department 23 and the Attorney General in which he says: While there is a 24 preference for the Senate bill, that it is the judgment of 25 the Justice Department that both versions -- that is, the 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Releasip 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 House bill which has a "bad purpose", as well as the Senate 2 version -- can be effectively used to prosecute to cover the 3 range of cases that the Congress is concerned about. 4 So that is the judgment of the people in the Justice 5 Department who would have the responsibility for prosecuting 6 under this bill. It is not only our judgment. 7 Senator East: Well, obviously of course, as I 8 understand the Justice Department's testimony this morning, 9 they are fully content with paragraph (c). That is, that 10 was their first preference, was it not, unless I 11 misunderstood what the gentleman was saying? 12 Mr. Berman: They said that they would prefer the 13 Senate version of the bill. 14 Senator East; Yes. Mr. Berman: But that they thought that both bills were 17 burden on them, that they could successfully prosecute under 18 the House version of the bill.\ Senator East; Yes, but again, to keep the record 20 straight as far as their preference, they prefer our 21 *version. That is the one I am defending. Mr. Berman: But they are not taking the position which 23 you have articulated that it is impossible to prosecute 24 under the House bill. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 119 1 Er. Berman: Just one other point, Senator, in response 2 to your question. It seems that unless it is a part of the 3 elemeats of proof in the trial whether there is a bad 4 purpose or not, then all of the avowals of Senators and 5 report language surrounding this bill that it cannot reach 6 the legitimate communication of news about intelligence 7 matters, foreign policy, but only people with a bad purpose 8 is eviscerated, because you have to take that. It has to be 9 a part of the element of bill for that report language and 10 that intent to stand up not to reach those cases. Senator East: Well, I shall end on this comment. I 12 appreciate your candor and your very helpful testimony. I 13 feel there is a real need here, and I want something of\ to substance. I am concerned that by the time we would hone it 15 in the way you would have us go, I am not quite sure we 16 would have an effective instrument. It would be one so difficult of interpretation in 18 application it would not deal with the genuine-felt need to 19 prevent people from interfering with effective intelligence 20 gathering. And to me, that is the goal; and we are going to 21have to make some reasonable adjustments to get there. It is an overriding question of national security, 23 national defense, and effective security. I look upon this 24 as a reasonable concession. Then, too, we have demonstrated 25 this morning that reasonable minds can differ over that. So Approved For Release 2007/03/01- WPA WO'21~~s(202) 554 2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 I yield to the Chairman. 2 Senator Denton: Thank you, Senator East. 3 Senator Biden? 4 Senator Biden: Thank you. 5 Gentlemen, maybe I am confused, but do you gentlemen 6 oppose efforts to stop the exposure of agents, the reason 7 for the exposure, for the purpose of hurting the United 8 States of America? Do you oppose that? Mr. Halperin: We would not oppose the bill which 1o contained that. 11 Mr. Berman: We do not oppose that bill. 12 Senator Biden: That concept, you do not oppose? 13 Mr. Berman: We state on page one that we do not 14 condone the practice of naming names which place our agents' 15 lives in jeopardy. Senator Biden: Do you acknowledge the right of a 17 government, the right of our government under our system of 18 laws to protect itself against subversion, espionage, and 19 terrorism? Mr. Berman: Defined as "criminal acts," Senator, yes. Senator Biden: I thought that we were discussing -- I 22 think we are discussing two bills, essentially, a House bill 23 which will work according to the Justice Department, and a 24 Senate bill which they will think more easily. Both will 25 work. 400 VIRGINIA AVE.. S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 E 1 Along those lines -- that is, deciding how well they 2 work -- balancing again whether or not the working of one 3 will impact upon another element of the competing interests 4 of any government and a free people, I would like to read to you some language and question whether or not you would 6 think it would be acceptable,\or preferable to either the 7 Senate language that pertains to this section, or the House 8 language. 9 I should say at the outset that it is not language 10 either of you have given me; it is language that was 11 suggested on April 23rd, I believe, by the former head of 12 the Criminal Division, Phillip B. Heymann. It saysa whenever in the course of a pattern of activities 14 undertaken for the purpose of uncovering the identities of 15 covert agents and exposing such identities (1) in order to 16 encourage or assist foreign nationals, or foreign powers, or 17 their agents to impair or to impede the effectivess of covert agents or the activities in which these agents are engaged; or (2) in order to neutralize covert agents or the activities in which they are engaged by the fact of such 211'exposure itself discloses to any individual not authorized to receive classified information, any information that identifies a covert agent, knowing that the information disclosed so identifies such covert agent, and that the United States is taking affirmative measures to conceal such ALDERSON REPORTING COMPANY. INC. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO210R000300060015-2 1 covert agent's intelligence relationship to the United 2 States, shall be fined not more than$15,000 and not 3 imprisoned more than three years." 4 That is a lot to swallow in one sitting, but do you 5 understand the language? 6 Mr. Halperin; Yes. We have seen that language. Our 7 understanding is that Mr. Heymann sent the letter to Mr. 8 Boland, the Chairman of the House Intelligence Committee, on 9 behalf of himself and Mr. Scalia and Floyd Abrams, who were 10 the three witnesses on constitutionality who testified 11 before the House Committee, expressing the view that that 12 language, better than even the House or the Senate bill or 13 anything else they had seen, was likely to survive 14 constitutional muster. I think we would join in that judgment. That does not 16 mean that we believe it is constitutional. We continue to 17 believe no language which punishes the republication of 18 publicly available information is constitutional. But our 19 view is that that language has a better chance of surviving 20 constitutional muster, and would chill less legitimate 2j public debate, than an alternative version that we know of; 22 and it would, I think, raise substantially fewer problems. 23 Senator Biden: The ACLU's purpose, credibility, 24 inclination, intent, if you will, has been raised here this 25 morning. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 Mr. Halperin, I would like to ask you specifically: 2 Have you ever worked for the Federal Government? 3 Mr. Halperin: Yes, I have. 4 Senator Biden: In what capacities and for whom? 5 Mr. Halperin: I served as a Deputy Assistant Secretary 6 of Defense in the Johnson Administration; and as a member of 7 the Staff of the National Security Council in the Nixon 8 Administration. 9 Senator Biden: So you have dealt with intelligence 10 matters as a government official in the Nixon 11 Administration? 12 Mr. Halperin: Yes, I did. Senator Biden: I would like to pursue one other 14 point. In your legal judgment -- I am not asking for your 15 preference, now, I am asking for your legal judgment which 16 may reflect your preference; I hope not; try to give me as 17 dispassionate a view as you can -- Mr. Phillip Agee who 18 makes it his business to publish the names of agents 19 whenever he has an opportunity, and whom I personally would 1 20 like to see put out of.,business, would Mr. Phillip Agee fall 21 under Sections (a), (b), (c), or all three, of the Senate 22 version of the bill? If you were going to prosecute him and 23 this bill were law, which section would you prosecute him 24 under based on the activity we know of thus far without 25 reciting all of what it is? 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 sir. Halperin: He would fall under Section (a) as 2 having had authorized access to classified information that 3 identifies a covert agent. 4 Senator Biden: So Mr. Agee, we would not even have 5 to-- the debate that is going on here, since the three of we 6 Senators who disagree much in philosophy I suspect, but 7 agree that Sections (a) and (b) are fine as they are; I am 8 not asking your position; we believe they are fine -- Mr. 9 Agee would not even rise to the level of being subject to 10 the debate because we would be able to prosecute him under 11 the first section, would we not? 12 Mr. Halperin: That is correct. 13 Senator Biden: Now let me ask you a hypothetical, a 14 situation where we do not have a former employee or present 15 employee or agent of the Federal Government, a person who 16 never had access to classified information, but by whatever 17 means either by paying for it, by having it leaked to them, 18 or by republishing it were to find themselves in the 19 following situation: 21?in recent years suggesting that our intelligence agencies 22 have been fooled by Soviet disinformation agents -- 23 "disinformation" -- and indeed some journalists and authors 24 contend that our intelligence agencies have been penetrated 25 by the KGB, and that a so-called "mole," is ensconced high (202) Approved For Release 2007/03/01IAR~~~~p~y3FMC~C'11~~8~0~0'1q~ ssa 23as Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 up in the CIA. ,One set of allegations surrounding a number 2 of Soviet defectors came over around the time of the Kennedy 3 assassination with conflicting stories about the Soviet 4 relationship with Lee Harvey Oswald was a certain set of 5 allegations. It is further alleged by some journalists that 6 this information from these defectors was kept from the 7 Warren Commission, or at least that the Commission was also 8 fooled by the defectors. 9 Now assume for the moment that a journalist had this 10 information, this information from defectors, early in '64 11 and, after failing to convince the intelligence agencies or 12 the Warren Commission of its validity, and knowing that it 13 might compromise a source, and having warned the agency of 14 its intent to disclose the information so that they might 15 protect their source, their agent, proceeds with a story. 16 The story says: A defector named Smith -- so I will not get into any existing cases -- a defector named Smith has told the intelligence community that the Soviets financed and trained Lee Harvey Oswald to assassinate President Kennedy. 21 The journalist tells that to the agency, says "I know 22 that; do something about it." They choose not to. Tells 23 the Warren Commission of this, and they choose not to print 24 it, because they believe it is disinformation. The 25 intelligence community concludes that it is disinformation ALDERSON REPORTING COMPANY. INC. 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 they are being given. 2 Now the journalist after doing all that goes out and 3 writes an article or publishes a book setting that out, 4 blowing the cover of American CIA agents. 5 Are they prosecutable under this law? 6 Mr. Halperin; Yes. 7 Senator Biden: I am not sure they are. Your answer is 8 "yes." I am not sure they are, but that is the kind of 9 thing that I am very worried about. I am worried about it 1o because I think there is, having served on the Intelligence 11 Committee since its inception, such a thing as 12 disinformation. I am concerned that foreign intelligence 13 agencies attempt to manipulate American intelligence 1.4 activities. 1,5 I am concerned that there is infiltration. I know of 16 no intelligence community in the world that has not been 17 infiltrated. Those concern me. And I worry that we might 18 very well find ourselves in the position of people who lack 19 intent, specified intent, who want to try to go out to 20 prevent that kind of thing, expose it, being prosecuted for 21 their efforts to try to be good Americans. 22 The example that I used earlier with Mr. Willard, and I 23 will cease in a moment, Mr. Chairman, was one where I said: 24 What happens if the reporter goes out and, in a pattern of 25 activity -- and by the way, is a "pattern" one time, or two, ALDERSON REPORTING COMPANY. INC. 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO210R000300060015-2 1 or three? Or is a "pattern" established by the 2 investigation and only one article? Can there be a pattern 3 if there is only one article written? 4 dir. Halperin: In the testimony of all the witnesses in 5 support of this legislation both in the last Congress and 6 this Congress, that one disclosure was enough if it followed 7 a pattern of effort to uncover. 8 Senator Biden: A "pattern of effort"? Okay. So there 9 is a reporter with a pattern of effort who attempts to 10 disclose the names of agents who he or she believes to be double agents, and so discloses them. As my two colleagues 12 pointed out, America would be better served if they were 13 disclosed. Obviously they would be reasonable in disclosing 1.; :.:cm. 15 But what happens if they in fact were engaged in 16 aisinformation themselves and were triple agents? I am 17 serious. This is not a joke. These gentlemen are 1t3 iALelligent men, they know there are such things as triple cznts. It is not something we make up in books; it is 20 real. So here we have an American citizen who goes out, and 22 what is the standard? What happens if they disclose the 23 name of an agent? I mean, are they prosecutable under 24 this? What is the test? Mr. Halperin: There are -- and I may have 4e, VIRGINIA AVE., S.W. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01 : A-RDP83MOO2I0R000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 misunderstood the Chairman, but I understood him to be 2 suggesting that if the names were gotten from foreign 3 intelligence sources that they would not be covered by the 4 bill; and I see nothing in the bill that would exclude 5 penalties for republishing names that came from foreign 6 intelligence sources, or from U.S. intelligence sources, or 7 from public data. But to go through the six hurdles that 8 Hr. Casey listed in his testimony that the government has to 9 followz 11 published on the Warren Commission and the allegation that 12 CIA disinformation agents were sent over to distract us from 13 investigating Oswald's alleged connections with the KGB, if 14 this person set out to write a book, or take your scenario 15 that there was an intentional disclosure of information 16 which identified a covert agent, saying that a particular 17 Soviet defector was now working for the CIA, that defector 18 is in the definition of "covert agent." The disclosure was made to an individual not authorized 20 to receive classified information, and clearly if you 2{ publish a book or write an article you do that. The person who made the disclosure knew that the 23 information disclosed did in fact identify a covert agent, 24 and saying that a KGB defector is working for the CIA, you 25 know that you are identifying a covert agent. VIRGINIA AVE., S.W., WASHINGTON D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01: lA-RDP83M0021OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 The person who made the disclosure knew that the United 2 States was taking affirmative measures to conceal, and again 3 you would know that and presumably say that in the story. 4 And the individual made the disclosure in a pattern of 5 activities intended to identify and expose covert agents, 6 and both in your scenario and in the real book the 7 individual set out to find out whether there were these 8 disinformation agents and to learn their identity. 9 And the disclosure was made with reason to believe that 10 the activity would impair or impede intelligence 11 activities. You would get that "reason to believe" by doing 12 what most journalists would do, which is to go to the CIA 13 and say: I am about to publish this story; should I do it? 14 Do you have any comment? The agency would say; Publishing 15 that story would injure the intelligence activities of the 16 United States. And, having been warned of that, you would 17 have great difficulty persuading a jury that you did not 18 have that "reason to believe." 19 Senator Biden: One last question, Mr. Chairman. I can 20 see you are getting up and getting ready here. One quick 21 one: That is, I think that there is a reasonable argument 22 that the language I am suggesting requiring intent might 23 very well have a more chilling effect on the media than the 24 language that exists in the Senate bill. 25 Now they argue that, as you know, and it was argued VI GINIA AVE., S W. WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01 : AI DP83MO021OR000300060015-2 Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 last year by some, that to prove intent prosecutors could 2 look for example in a prosecution against The', New York Times 3 at previous editorials criticizing foreign policy, et 4 cetera. The argument being that if the House language were 5 adopted, it would have more chiling effect on the freedom of 6 the press than the other language. Do you have an opinon on that specific question? Mr. Halperin; I think that might be true of the 9 current House language, but I think it would not be true of 10 the specific "bad purpose" in the language which you read to 11 me. And I think. that is why those three gentlemen think 12 that that raises fewer constitutional problems. 13 Senator Biden: Thank you, very much. 14 Thank you, Mr. Chairman. 15 Senator Denton: Thank you, Senator Biden. 16 We made previous inquiry regarding the ACLU and the 17 Center for National Security Studies respecting a position 18 on not supporting covert action or espionage activities 19 abroad in peacetime absent a declaration of war by 20 Congress. That was a position in 1978 and affirmed here 21 today with some qualifications. A previous statement in 1975, December 5th, by you, Mr. 23 Halperin, I would like to know, since it was before the 24 Senate Select Committee, whether or not you still hold to 25 the view that the United States should no longer maintain a 400 VIRGINIA AVE. S.W WASHINGTON D. 4 202) 554-2345 Approved For Release 2007/03/01 : CIA-RDP83M0021OR00030b06802o0? Approved For Release 2007/03/01: CIA-RDP83MOO21OR000300060015-2 1 career service for the purpose of conducting covert 2 operations and covert intelligence collection by human 3 means? I left out -- there was no reference to "abroad" or 4 anything in that statement, so I wondered if that is still 5 your current view? 6 Mr. Halperin: The implication of that statement was 7 "abroad-," but it is not still my current view. 8 Senator Denton: Thank you, sir. Frankly, I am very 9 glad to hear that. 10 We will be holding the record open for written 11 questions to these gentlemen. We thank you very much for 12 your forthright testimony this morning, gentlemen. 13 Senator Biden: Mr. Chairman, before you adjourn, I -4 have no questions for the witnesses -- these are our last 15 witnesses? 16 Senator Denton: No, one more. 17 Senator Biden: Oh, okay. Good. Thank you. 18- Senator Denton: We will call on Mr. John M. Maury, President of the Association of Former Intelligence Officers. 20 21 ' 400 VIRGINIA AVE. S.W. WASHINGT N D. 4 202) 554-2345 Doroved For Release 2007/03/01: CIA-RDP83M0021OR000 ObOg60~S'~ -~ Approved For Release 2007/03/01 ,: CIA-RDP83MOO21OROOO3OOO6OO15-2 1 STATEMENT OF JOHN M. MAURY, PRESIDENT, THE ASSOCIATION 2 OF FORMER INTELLIGENCE OFFICERS; ACCOMPANIED BY JOHN S. 3 WARNER, LEGAL ADVISOR, AFIO. 4 Mr. tiaury: Hr. Chairman, with your permission I would 5 like to have Mr. John Warner, the Legal Advisor of the 6 Association, and former General Counsel of the Central 7 Intelligence Agency, with me here to pethaps field questions. 8 Senator Denton: Welcome to you, Mr. Maury, and also to g your associate, Mr. Wa rner. I suppose it would be better 10 were it to reveal that there is a suspicion that Mr. Maury anci ~ .,:ere related through marriage, before we begin this, 12 and I only learned that today. 13 Would you care to make an opening statement, sir? 14 ~ .:... Maury: Sir, I will submit f or the record the 15 statement which I believe your staff has. I will make a few 16 very brief, general remarks. First of all, I am the President of some 3000 former ig inteiigence officers from the Armed Services, the FBI, the ig ".:.~?i.e Department, and the CIA, and appear in that capacity. 20 I am, like my predecessors I believe, a completely impartial 2f witness. As Admiral Turner I am sure will testif y, I have 22 been just as critical of the CIA on some points as Mr. 23 Halperin has, I think. 24 But I do feel very strongly in the importance in this 25 day and age of an effective intelligence service as the 400 VIRGINIA AVE.. S.W_ WASHINGTON, D.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83MOO21OROOO3OOO6OO15-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 first line of def ense against subversion and surprise, and 2 the best hope for peace in our time. As a wise colleague on 3 the NSC Staff once remarked, perhaps the greatest danger to 4 peace in our time would be an ill-informed American 5 President. I think in this day and age, that is more 6 important than ever. 7 I think in that connection, human sources are more 8 important than ever. They can tell you many things of vital 9 interest that no satellites or electronic systems can 10 contribute. I speak from the perspective of these human 11 sources because I have been one, and I have been involved 12 with them off and on for the past u0 years, and I vas eight 13 Years Chief of Soviet Operations for the CIA. 14 These people a re rather strange, Kr. Chairman. They 15 live lonely lives. They operate a long way from home. They 16 are under severe pressures, and inducements, and temptations 17 in operating in a hostile environment, and there is no way 18 ve can compensate them in any measure commensurate with 19 their true worth. We cannot give them public acclaim, of 20 course, because that would give them away. And ve cannot 21 reward them with material things, because an affluent 22 lifestyle would immediately raise suspicions. So alI that they can get in the way of compensation for 24 their work is a feeling that their work is valued and 25 aPpreci3te3. It is awfully hard for them to feel that it is 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R00030(3060015-2 1 valued and appreciated by the government unless the 2 government can provide them some protection for the 3 effectiveness of their job, and for their lives and that of 4 their families. 5 And as long as it is possible for an organization right 6 here in the Nation's Capital to freely publish the 7 identities of these people without any legislation that can S effectively restrain that publication, it is awfully hard to S convince these people that we are doing our part to support 10 and protect them. I speak with some personal involvement in the Welch 12 case. It has been said of my friend, Dick Welch, who was my 13 successor as Station Chief in Athens, that the KGB of course 14 knew who he was, and that the fact that his name was 15 published by Counterspy and then was picked up by the Greek 16 press and sensationalized, in no way contributed to his 17 death. Well, I happened to be visiting Dick and Kika Welch in 19 Athens Suring Thanksgiving just before his death, and his 20 name had just appeared on the front pages of several Athens' 2t newspapers. We talked about this, and he said: Of course 22 most people around here could find out who I am; I operate 23 in a NATO government where I am dealing with a lot of local 24 officials, and so on, but the important thing is that I am 25 not a celibrity. Once I become a celibrity, then I am a 400 VIRGINIA AVE.. S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 prime target for action by the terrorists that were then 2 operating in that part of the world. 3 Recall the assassinations of the L~unich athletes at the 4 Olympic Games. They were not intelligence agents, but they 5 were prominent personalities. So what I am saying, sir, is 6 that the argument that these identities can sometimes be 7 devined by skillful research is not the only damage that 8 their revelation does. The real damage in large measure 9 comes from the widspread publication of their identities 10 which has two effects: 11 One, it does make them attractivel,targets for 12 assassination or violence; l 13 Second, it creates an impression throughout the world 14 that the United States Government is unable or unwilling tc 15 get serious about its intelligence work, and presumably even 16 its national security interests, if it cannot or will not 17 protect the people I speak of by adequate legislation. As a former KGB officer once said to me: Our primary 19 objective has always been to put out the eyes of our 20 adversary by discrediting and demoralizing and disrupting 2-~ his intelligence service. Another :CGB officer is quoted as saying: 41e never 23 dreamed that we could do as much damage to the United States 24 security as you people have done to it yourself by your 25 revelations and irresponsibilities. 2007/03/01 ~IA RDP83~V1~02'10~~b~g3T8~b6~~b~1~~2 cso2~ ssa-ssas Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 Nov putting those tvo things together, Mr. Chairman, I 2 do not think that anything can do more to contribute to 3 these Soviet objectives than the continued uninhibited 4 publication of the identities of our most sensitive 5 intelligence personnel in dangerous and difficult 6 assignments. 7 Thank you very much for your attention, sir. 8 [The complete statement of dir. Haury follovs:l 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 Senator Dentoni Thank you very much, 2'.r. ?laury. 2 I will have only two questions, since your opening 3 statement answered the remainder of them. Does the 4 Association and its membership feel that S. 391 will be 5 effective in reducing the dangers engendered by the 6 unauthorized disclosures of identities of intelligence 7 officers and their family members? 8 Mr. ISaury: Mr. Chairman, I think it will contribute a 9 great deal. I do not think there is ever a perfect solution 10 to this problem in a free society, but I think S. 391 will 11 make a great contribution not only to the practical results, 12 but also to the morale of the troops in the field. 13 Senator Denton: Do you have any suggestions as to how 14 this bill could be rendered more effective, not necessarily 15 in amending nov, but perhaps Later in addressing the problem 16 of unauthorized disclosures? Kr. Haury: Mr. Chairman, I think time is of the 18 essence, and therefore Z would urge prompt action on this 19 bill. There may be refinements that could come later, but 20 it is far better I think that we move quickly on this bill, 2~ rather than delay in the interest of polishing it further. Senator Denton: Thank you, sir. Senator East? Senator East: Mr. Chairman, I will keep my remarks 25 brief. I found the statement very valuable, and it will he 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 of coursQ, I knov, a part of the record. I do agree, 2 obviously -- or perhaps not so obviously -- with the general 3 concern that tir. Maury raises, and I appreciate hearing what 4 the professionals think about the problem. 5 They do think this Act would fill a gap here that needs 6 to be filled, and that simply enhances my support for the 7 measure. I appreciate his coming and making the effort to be a part of these hearings. Since we would be in basic 9 agreement, I shall not proceed to waste any further time, 10 but my Lack of comment should not be interpreted as a lack 11 of enthusiasm for his statement and his personal presence 12 here. 13 Thank you, 2ir. Chairman. 14 Senator Denton: Thank you, Senator East. 15 Senator Biden? Senator Biden: Thank you also for your statemen t, 17 sir. It may come as a surprise to you that I do not 18 disagree with your statement, either. The fact of the 19 matter i.s that I think you are absolutely right, 20"particularly as it relates to the morale, but more 21?importantly as it relates to the single greatest instrument 22 for peace we have at our disposal in this government, a 23 functioning, ve11-ordered, and good intelligence community. 24 To that degree, if you qo back, and you know if you were 25 there, that I have been exceedingly supportive of budget ALDERSON REPORTING COMPANY, INC, 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 roved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 requests and matters that would relate to strengthening that 2 agency. As a matter of fact, I have been the prime mover 3 most of the time in those issues on that committee. 4 So we have no disagreement at all in terms of both the 5 philosophy of the need for the agency, in my opinion the 6 need for covert activities, in my opinion the need for the-- 7 I, like you, reject the argument that merely because a KGB 8 agent does not sanction a CIA agent who has been exposed, 9 that threfore there is no harm to the agent. We all are not worried about the KGB agent blowing you 11 away. That is a worry, but not related to this. There is 12 no doubt that they know who the station chief in every 13 station in the world is, just like I know we know 14 conversely. But that is not the point. 15 You are absolutely right, and I want to reiterate your 1g point on the record, that both the demoralizing effect and 17 the physical danger created as a consequence of exposing ig agents in foreign lands, that the KGB already knows about, ig still is very, very damaging both to the physical safety and 20 to the morale of the agency -- and it does not make us look 21good, either, as a Kation. So I concur with you 22 completely. 23 I have one question for you: Do you believe that the 24 House bill -- I have two questions actually -- Do you 25 believe that the House bill that differs only in the pproved For Release 2007/03/01 :~A~~~8~3vl~fb~L~'I~~~T~'O~i~O~l~-'24 czo2~ ssa-zsss Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 argument tha t you have heard take place here today, the 2 question of "reason to believe" or "intent," do you believe 3 that the House bill would prevent us from accomplishing the 4 goals of further protecting those CIA agents? Is the House 5 bill a positive move? I know you prefer the Senate bill, 6 but is the House bill positive? Does it help? 7 Kr. tiaury: Sir, I vould defer to Hr. Warner, our Legal 8 Advisory, on that if_ I may? 9 Senator Biden: Surely. 10 Mr. Warner: Hr. Biden, we have studied both of these 11 bills very carefully and, somewhat like the Department of 12 Justice, we would urge passage of either one. We feel that 13 they both clearly stand constitutional muster. I helieve 14 that the House bill would make prosecution somewhat more 15 difficult, having engaged in many cases in discussion of 16 "shall we prosecute this case, or that case?" I believe 17 that the House bill would be slightly tougher to prosecute. Senator Biden: I appreciate your answer. Mr. Warner: But either bill. Senator Biden: Because I just want to make it clear 2t that, from my paint of view, although I do not share the 22 same philosophic view of my colleagues on a number of 23 issues, on this issue, the issue for me, Joe Biden, one 24 Senator, the ranking member of this Full~?Committee and this 25 subcommittee, is simply the latter point. , 400 VIRGINIA AVE., S.W.. WASHINGTON, D.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 There is no disagreement. There is no disagreement on 2 the need for action in this area. Your answer is crystal 3 clear. 4 The second question I want to ask you, if I may, and I 5 may address this to our principal witness: That is, can you 6 explain to me and my colleagues, or can you think of from 7 your past experience, not a hypothetical but past 8 experience, as you have cited past:... experience to us by 9 making reference to KGB agents you have know, et cetera, 1d which is all very helpful, can you cite from past experience 11 examples where the disclosure of the name of an agent who 12 vas a double agent would be something that would not he the 13 desire of the agency? 14 Mr. Maury: Yes, sir. 15 Senator Biden: Sometimes it makes sense for us to have t6 double agents vho are working against our interest continue 17 to be double agents as long as we know it? Right? Mr. Maury.: Very valuable. Senator Biden: Yery valuable. Now the second point on 20 that second question that I would Like to make -- and I 21 'promised I would be finished on 1:30, and there are 3-1/2 22 minutes left. That is, I found in what turned cut to be the 23 first effort, with the cooperation of your agency, your 24 former agency, to the best of my knowledge I am the first 25 person to ever have access to all the damage a~sessmeat 400 VIRGINIA AVE_, S. W., WASHINGTON, O.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 reports for the past 10 years in the Agency. For my 2 colleagues who may not know the term of art, and they may 3 also, when something goes wrong you all write a damage 4 assessments Hov much did it hurt us? 5 As we vent back to try to figure out why were not you 6 fellows and the Justice Department prosecuting these guys, 7 ve found out that one of the reasons vhy you did not 8 prosecute was not because you were un-American, but because 9 in order to prosecute under our system it required you to 10 disclose more than you would gain by the prosecution. .11 So we worked together and we came up with the Grey-Hail 12 bill vhich, according to Justice, according to the 13 Prosecutions that have taken place since then, and according 14 to the Agency, has had a significant impact on allowing you 15 a mechanism to qo get those folks and punish them without 1g having to reveal more than you wanted to. There are still 17 some cases you cannot qo forward with, because to go after 18 it you would reveal too much. 19 Nov having said that, what are the other valuable means 20 beyond us passing either this House bill or the Senate bill 21`that you believe as a qualified and experienced agent are 22 needed to protect the identities of CIA agents? 24 Executive Branch. That would be a new policy with the new 25 Executive Orders on who can and should be available for duty 400 VIRGINIA AVE., S.W., WASHINGTON. D.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 for, or perhaps providing cover for intelligence officers 2 throughout the Executive establishment. That could be very 3 useful in certain circumstances. 4 Z think we have unilaterally disarmed, in a number of 5 cases, by deliberately putting -- 6 Senator Biden: Raking it so clear who we have as cover 7 by acknowledging them. 8 Mr. Maury: We have identified so many people that we 9 say that ve are not using -- and I do not think anybody 10 abroad ever believes us; but still we have done it to 11 ourselves at home. So we have shot ourselves in the foot in 12 that respect. That would be one comment. 13 Maybe Mr. Warner could add to that. 14 Senator Biden: Well, on that point -- let me follow 15 up, since my time is running -- would it not be useful, or 16 is it not the case that unless we do take that kind of 17 action, that even if newspaper people do not publish this 18 stuff, and the Agees of the world do not publish these 1g identities, that these terrorist organizations are getting 20 sophisticated enough to figure it out themselves, are they 2f not? They are not the KGB, but they are getting more 22 sophisticated, are they not? Mr. Maury: No doubt; no doubt about it. Senator Biden: So even with this law, whichever one we 25 pass, we have to do more, do we not? 400 VIRGINIA AVE., S.W.. WASHINGTON, O.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 i7r. Maury: I think so. And I might add, sir, that I 2 think there should be some restrictions and revisions in the 3 Freedom of Information Act, and the Foreign Intelligence 4 Surveillance Act. 5 Senator Biden: I am anxious to hear what you have to 6 say, Iir. Warner, but with the permission of the Chairman, I 7 would ask permission that we leave the record open to give 8 you time to add to, in more detail if you would like, some 9 of the other things beyond this kind of legislation that you 10 think is useful, but it is up to the Chairman in terms of ,'11 time whether he wants to hear it now, or have it in writing. 12 Mr. Warner: I can do it very briefly, I~r. Chairman. 13 Senator Denton: Go ahead, Mr. Warner. 14 Mr. Warner: I think one of the measures in S. 391 15 itself is highly desirable. That is, requiring the 16 President to issue an Executive Order dealing with the 17 procedures under which cover will be provided. Because 18 while, from time to time, various departments are 19 cooperative, at other times the policymaker in charge is not 2p so cooperative, nor are the procedures standardized. And it 21 is a very complex business, putting a person under cover and 22 keeping him under cover. It is very complex. I think a 23 central direction from the President will be of material 24 assistance. Senator Biden: I personally thank you for your ALDEASON REPORTING COMPANY, INC. 400 VIRGINIA AVE., S.W.. WASHINGT 4 2) 554-2345 roved For Release 2007/03/01 :CIA-RDP83M00210R0083b~~6~'15~-'~ Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 concise, dispassionate, and honest responses to my 2 questions. Thank you. 3 Senator Denton: I would Like to confirm that the only 4 difference that appears to exist between the Minority 5 Hembers an3 the Majority tiembers on this committee relates 6 to the efficacy or lack thereof of the statement regarding 7 "intent" between the House and Senate version. 8 I can confirm that Senator Biden, in my experience and 9 before my experience here, has been a veritable bird dog in 10 Promoting intelligence, not only in the sense in which we ~- are discussing here, but he made quite a point with the Druq 12 Enf orcement Administration hearing the other day of 13 insisting that the Director give adequate attention to the 14 intelligence gathering facility of that organization. 15 So I have no qualms whatever about acknowledging that, 16 Senator Biden. Senator Biden: Thank you, Mr. Chairman. I may have to 18 use that some day. 19 (Laughter.) Senator Denton: Thank you, Senator East, for your not 21"manly political science background here, but your Legal 22 background. You are one of the versatile men here, and one 23 of the finest men here, in my opinion. I want to thank the witnesses, Mr. Maury and Mr. 25 Warner. We will hold the record open until next 'r~ednesday, 400 VIRGINIA AVE.. S.W., WASHINGTON, D.C. 20024 (202) 554-2345 pproved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2 1 13 ~iay, for the submission of written questions by any 2 Senators here or absent who wish to do so. This hearing 3 stands in recess, subject to the call of the Chair. 4 [Whereupon, at 1:33 p.m ., the hearing was recessed, 5 subject to the call of the Chair.] 400 VIRGINIA AVE., S.W., WASHINGTON, D.C. 20024 (202) 554-2345 Approved For Release 2007/03/01 :CIA-RDP83M00210R000300060015-2