ADDITIONAL RESPONSES TO ARGUMENTS BY SENATOR BIDEN AND OTHERS ON THE IDENTITIES BILL

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200030008-5
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 6
• Document Creation Date: December 22, 2016
• Document Release Date: November 12, 2009
• Sequence Number: 8
• Publication Date: March 2, 1982
• Content Type: REPORT

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Calendar No. 979
96TH CoNGRESB
Rd Se88ion
REPO
No. 96-896
INTELLIGENCE IDENTITIES P1 OTECTION ACT
AUGUST 13, 1960.-Ordered to be printed
Filed under authority of the order of the Senate of August 6, legislative day
June 12, 1980
Mr. CHAFES (for Mr. BAYH), for the Select Committee on Intelligence,
submitted the following
REPORT
together with
ADDITIONAL VIEWS
(To accompany S. 2216]
The Select Committee on Intelligence, to which was referred the bill
(S. 2216) to improve the intelligence system of the United States, and
for other purposes, having considered the same, reports favorably
thereon with amendments and recommends that the bill, as amended,
do pass.
PURPOSE
The purpose of S. 2216, as reported, is to strengthen the intelligence
capabilities of the United States by prohibiting the unauthorized dis-
closure of information identifying certain United States intelligence
officers, agents and sources of information and operational assistance,
and by directing the President to establish procedures to protect the
secrecy of these intelligence relationships.
A>+rE DmzwTs
Strike all after the enacting clause and insert in lieu thereof the
following :
That this Act may be cited as the "Intelligence Identities Protection Act of 1980".
SEc. 2 (a) The National Security Act of 1947 is amended by adding at the
end thereof the following new title:
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and the category covered by section 501(a), is under section 501(a)
the offender must have had authorized access to specific classified in-
formation which identifies the covert agent whose disclosure is the
basis for the prosecution. Section 501(b), on the other hand, requires
that the identity be learned only "as a result" of authorized access to
classified information in general.
As with those covered by section 501(a), those in the 501(b) cate-
gory have placed themselves in a special position of trust vis-a-vis the
United States Government. Therefore, it is proper to levy stiffer penal-
ties and require fewer elements to be proved than for those who have
never had any authorized access to classified information (see section
501 (c) ). However, the Committee recognizes that there is a subtle
but significant difference in the position of trust assumed between
an offender within the section 501 (a) category and an offender in the
section 501(b) category. Therefore, the penalty for a conviction under
section 501(b) is a fine of $25.000 or five years imprisonment, or both.
With the two exceptions discussed above-the relationship of the
offender to classified information and the penalty for conviction-
the two offenses, and the elements of proof thereof are the same.
Section 501(c) applies to any person who discloses the identity of a
covert agent.
As is required by subsections (a) and (b), the government must
prove that the disclosure was intentional and that the relationship
disclosed was classified. The government must also prove that the
offender knew that the government was taking affirmative measures
to conceal the classified intelligence relationshi of the covert agent.
As is also the case with subsections (a) and (b), the actual informa-
tion disclosed does not have to be classified. However, the government
must prove that. the defendant knew that he was disclosing a classified
relationship the government seeks to conceal by affirmative measures.
Unlike the previous two sections, authorized access to classified infor-
mation is not a prerequisite to a conviction under section 501(c). An
offender under this section has not voluntarily agreed to protect any
troverninent information nor is he necessarily in a position of trust.
Therefore, section 501(c) establishes three elements of proof not found
in sections 501 (a) or (b). The United States must prove-
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That the disclosure was made in the course of a pattern of
activities, i.e., a series of acts having a common purpose or
objective ;
That the pattern of activities was intended to identify and
expose covert agents; and
That there was reason to believe such activities would impair
or impede the foreign intelligence activities of the United States.
S. 2216, as introduced, required that to be criminal the disclosure
made by those with no access to classified information would have to
be made "with the intent to impair or impede the foreign intelligence
activities of the United States."
The bill, as reported, replaces this intent standard with a more
objective standard which requires that the disclosure must be "in the
course of a pattern of activities intended to identify and expose covert
agents and with reason to believe that such activities would impair and
impede the foreign intelligence activities of the United States." This
requirement makes it clear that the defendant must be engaged in a
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conscious plan to seek out undercover intelligence operatives and
expose them in circumstances where such conduct would impair U.S.
intelligence efforts.
It is important to note that the pattern of activities must be in-
tended to identify and expose such agents. Most laws do not require
intentional acts, but merely knowing ones. The difference between
knowing and intentional acts was explained as follows in the Senate
Judiciary Committee report on the Criminal Code Reform Act of
1980:
As the National Commission's consultant on this subject
put it, "it seems reasonable that the law should distinguish
between a man who wills that a particular act or result take
place and another who is merely willing that it should take
place. The distinction is drawn between the main direction
of a man's conduct and the (anticipated) side effects of his
conduct." For example, the owner who burns down his tene-
ment for the purpose of collecting insurance proceeds does
not desire the death of his tenants, but he is substantially
certain (i.e., knows) it will occur.
A newspaper reporter, then, would rarely have engaged in a pattern
of activities with the requisite intent "to identify and expose covert
agents." Instead, such a result would ordinarily be "the (anticipated)
side effect of his conduct."
Under the definition of "pattern of activities," there must be a
series of acts with a common purpose or objective. A discloser must,
in other words, be in the business, or have made it his practice, to
ferret out and then expose undercover officers or agents where the
reasonably foreseeable result would be to damage an intelligence
agency's effectiveness. Those who republish previous disclosures and
critics of U.S. intelligence would all stand beyond the reach of the
law if they did not engage in a pattern of activities intended to
identify and expose covert agents.
A journalist writing stories about the CIA would not be engaged
in the requisite "pattern of activities," even if the stories he wrote
included the names of one or more covert agents, unless the govern-
ment proved that there was intent to identify and, expose agents
and that this effort was undertaken with reason to believe it would
impair or impede foreign intelligence activities. The fact that a
journalist had written articles critical of the CIA which did not
identify covert agents could not be used as evidence that the purpose
was to identify and expose covert agents. To meet the standard of
the bill, a discloser must be engaged in a purposeful enterprise of
revealing navies-he must, in short, be in the business of "naming
names."
The following are illustrations of activities which would not be
covered :
An effort by a newspaper to uncover CIA connections with
it, including learning the names of its employees who worked
for the CIA.
An effort by a university or a church to learn if any of its
employees hack worked for the CIA. (These are activities in-
tended to enforce the internal rules of the organization and not
identify and expose CIA agents.)
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An investigation by a newspaper of possible CIA connections
with the Watergate burglaries. (This would be an activity un-
dertaken to learn about the connections with the burglaries and
not to identify and expose CIA agents.)
An investigation by a scholar or a reporter of the Phoenix
program in Vietnam. (This would be an activity intended to
investigate a controversial program and not to reveal names.)
The government, of course, has the burden of demonstrating that
the pattern of activities was with the requisite intent to identify and
expose covert agents. The government's proof could be rebutted by
demonstrating some alternative intent other than identification and
exposure of covert agents. The government must also show that the
discloser had reason to believe that the activities would impair or
impede the foreign intelligence activities of the United States. For
example, a reporter could show that by printing a name of someone
commonly known as a CIA officer he could not reasonably have ex-
pected that such disclosure would impair or impede the foreign intel-
ligence activities of the United States.
SECTION 502-DEFENSE AND EXCEPTIONS
Section 502(a) states that "it is a defense to a prosecution under
section 501 that before the commission of the offense with which the
defendant is charged, the United States had publicly acknowledged
or revealed the intelligence relationship to the United States of the
individual the disclosure of whose intelligence relationship to the
United States is the basis for the prosecution." The words "publicly
acknowledged" are intended to encompass such public activities as
official publications of the United States, or official statements or press
releases made by those acting on behalf of the United States, which
specifically "revealed" an intelligence relationship. The United
States has revealed an intelligence relationship if it has disclosed
information which names, or leads directly to the identification of,
an individual as a covert agent. Information does not lead directly
to such an identification if the identification can be made only after
an effort to seek out and compare, cross-reference, and collate informa-
tion from several publications or sources which in themselves evidence
an effort by the United States to conceal this identity.
Section 502(b) (1) and (2) ensure that a prosecution cannot be
maintained under section 501 (a), (b), or (c), upon theories of aiding
and abetting, misprison of a felony, or conspiracy, against an individ-
ual who does not actually disclose information unless the government
can prove the "pattern of activities" and the intent and "reason to
believe" elements which are part of the substantive offense of section
501(c). A reporter to whom is disclosed, illegally, the identity of a
covert agent by a person prosecutable under section 501 (a) or (b)
would most likely not be engaging in the requisite course of conduct,
because he would not likely be engaged in a pattern of activities
intended to identify and expose covert agents.
Section 502(c) is intended to make clear that disclosures made
directly to the House or Senate Intelligence Committees are not
criminal offenses.
.Section 502(d) states that "it shall not be an offense under section
501 for an individual to disclose information that solely identifies
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