INTELLIGENCE IDENTITIES PROTECTION-CHAMBER ACTION IN THE HOUSE OF REPRESENATIVES

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP85-00003R000200070006-3
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 38
• Document Creation Date: December 21, 2016
• Document Release Date: July 24, 2008
• Sequence Number: 6
• Publication Date: September 23, 1981
• Content Type: OPEN SOURCE

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CONGRESSIONAL RECORD - DAILY DIGEST D 1121
House of Representatives
G,iainber Action
Bills Introduced: 18 public bills, H.R. 4560-4577; 8
private bills, H.R. 4578-4585; and 1 resolution, H.
Res. 230 were introduced.
Pages H6581-H65$2
Bills Reported: Reports were filed as follows:
H.R. 1352, H.R. 1796, H.R. 1624, H.R. 1977,. and
H.R. 3478, all private bills (H. Repts. 97-246,..
97-247, 97-248, 97-249, and 97-250, respectively);
and
H.R. 4560, making appropriations for the -Depart-,
ments of Labor, Health and Human Services, and
Education,, and Related Agencies for fiscal year
ending September 30,1982-(H- Rept_ 97-251).
Page H6581
Michael Roll Post Office: House passed H.R.
4431, to provide for the designation of the E. Mi-
chael Roll Post Office.
uals who expose the names of covert United States
intelligence agents.
An amendment that sought to penalize anyone
who identifies a United States official abroad as a
covert agent, whether falsely or otherwise, under
circumstances that may- risk human life was with-
drawn.
H. Res. 223, the rule under which the bill was
considered, was agreed to earlier by a voice vote.
Late Report.-., Committee on Appropriations re-
ceived permission to have-until midnight tonight to
file a report-oft H.R. 4560, making appropriations
for the Departments of Labor, Health and Human
Services, and Education, and Related Agencies for
fiscal year ending September 30, 1982.
Page H654i
NSF Authorization: By a yea-and-nay vote of 262.
Page 146504 yeas to 149, nays,.. Roll No. 223, the House passed
H
R
1520
to authorize a
ro
riations for activiti
.
.
,
pp
p
es
ence Identities Protection: By a yea-and- for the National Science Foundation for the f
l
isca
nay vote 6-t334- yeas to 56 nays, oil No. 219, the year 1982.
House passed H.R.-.4, to amend the National Secu- Agreed to. the committee amendment in the
city Act of 1947 to prohibit the unauthorized disclo- nat
r
f
ub
i
d
d 1-
u
e o
st
a s
tute, as amen
e
an amend-y sure of information identifying certain United States ment, as amended (agreed to by a recorded vote of
in ;ence officers, agents, informants, and sources. 245 ayes to 161 noes, Roll No. 221), that reduces the
.,;reed to the. committee amendment in the authorization level to S1.085 billion for fiscal
nature of a substitute, as amended by: year
An amendment that strikes the provision impos- 1982 (agreed to by a recorded vote of 401 ayes to 5
noes, Roll No. 222).
i
ri
i
l
al
i
di
id
l
ng a c
na
pen
m
ty on
n
v
ua
s without previ-
ous access to classified information who, intentionally
identify covert agents and substitutes a provision
that imposes a criminal penalty on anyone who en
gages in a pattern of activities intended to'identify
H. Res. -183, the rule under which the bill was
considered`.was agreed to earlier by a voice vote.
Pages H6541-H6558
Legislative Program: The Majority Leader an-
and expose covert agents with a reason to believe nounced the legislative program for the week begin-
that those disclosure activities would impair or , -; ping September 28.
impede United States intelligence operations Pages H6556-H6557
(agreed to by a recorded vote of 226 ayes- to 181 Referrals: Two Senate-passed measures were re-
noes, Roll No. 217.); and ferred to the appropriate House committees.
who are former officers, agents, and employees -of_
Rejected:
An amendment:hthat sought to except. fromthe
charges of violatio of disclosure the transmitting or
Page H6581
,Amendments Ordered Printed. Amendments or-
'_dered printed -pursuant to the rule appear on page
uorum Calls-Votes: One quorum call, two yea-
and-nay votes, and four recorded votes developed
during the proceedings of the House today and
appear on pages H6530-H6531, H6536-H6537,
.H6540, H6555-H6556, H6557-H6558. - - -
Adjournment: Met at 10 a.m. and adjourned at 8:10
p.m. . -
public sources or -unclassified materials- (rejected by
a division vote of 3-ayes to 38 noes); and -' -
An amendment that sought to .empower district
cor to issue restraining orders or injunctions
ag. any person who is about to engage in any
conduct that would jeopardize the safety of individ-
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CONGRESSIONAL RECORD - HOUSE September 23, 1981
determination to make the most For 24 years Mike Roll led his city
money they can as fast as possible with a vitality not often seen in munic-
while protecting their enormous share lpal government. It was he who pro-
the oil market is also a rational vided the impetus for the postal facili-
ty for a regime whose own future ty, as he did for so many projects in
uncertain. One Saudi professor his city. His achievements are many
claims, "People feel they must race to and it is a fitting tribute that we name
make money before the oil is gone. the post office for him.
They put it outside, in Brazil. in I know of no one in his community
London, New York, so it will grow and who was more loved or respected. He
if necessary they can join it." was always a source of inspiration for
In any case, Saudi oil policy can young people looking forward to a
hardly be viewed as altruistic and de- career in Government and politics,
serving of military favors. If you be- and he was an example of the kind of
lies a that, in the words of the Wall dedicated public leader we strive for in
Street Journal, "you're still waiting Government.
for the tooth fairy." The realization of this honor unfor-
tunately will occur after his death.
E. MICHAEL ROLL POST OFFICE I am very pleased, Mr. Speaker, that
as a result of this bill a post office will
Mr. FORD of Michigan. Mr. Speak- be named in honor of E. - Michael
er. I ask unanimous consent that the Roll-this is a fitting tribute to a great
Service be discharged from further Mr. Speaker, I yield back the bal-
consideration of the bill (H.R. 4431) to ance of my time.
provide for the designation of the E. GENERAL LEAVE
Michael Roll Post office, and ask for Mr. FORD of"Michigan. Mr. Speak-
its immediate consideration in the er. I ask unanimous consent that all
House. Members may have 5 legislative days
The Clerk read the title of the bill. In which to revise and extend their re-
The SPEAKER -pro tempore (Mr. marks, and to include extraneous
PEYsER). Is there objection to the -re- matter, on the bill H.R. 4431,. now
quest of the gentleman from Michi- under consideration.
gan? The SPEAKER pro tempore. Is
There was no objection. there objection to the request of the
The Clerk read the bill, as follows: gentleman from Michigan?
? H.R. 4431 ? - There was no objection.
Be it enacted by the Senate and House of Mr. FORD of Michigan. Mr. Speak-
Representatives of the United" States of er, I have no further requests for time,
4merica in Congress assembled, That, as and I yield back the balance of my
,n as practicable after the date of the en- time.
mment of this Act, the Postmaster General The bill was ordered to be engrossed
(1) ) shat designate the . ~ ? post office located at and .read a third time, was read the
6400 Marlboro Pike, Forestville. Maryland, third time, and passed, and a motion
as the "E. Michael Roll Post Office": and to reconsider was laid on the table.
(2) install in such post office, in a place in
open view of. the public, an appropriate RE-REFERRAL OF EXECUTIVE
plaque indicating the designation of the
post office pursuant to this Act. COMMUNICATION NO. 2099 TO
The SPEAKER. pro tempore. The COMMITTEE ON GOVERNMENT
gentleman form Michigan (Mr. FoRD) OPERATIONS .
is recognized for 1 hour. Mr. FORD of Michigan. Mr. Speak-
. Mr. FORD of Michigan. Mr. Speak- er, I. ask unanimous consent that the
er, I yield such time as he may con- Committee on Post Office. and Civil
sume to the gentleman from Maryland Service be discharged from: the - fur-
(Mr. HoYER). ther consideration of executive com-
(Mr. HOYER asked and was given munication numbered 2099, and that
permission to revise and extend his re- it be re-referred to the Committee on
marks.) Government Operations.
Mr. HOYER. Mr. Speaker, at this - The SPEAKER pro tempore. -is
time I would like to thank the chair- there objection to the request of the
man of my committee, the Committee gentleman from Michigan?
on Post Office and Civil Service, the Mr. WALKER. Mr. Speaker,_reserv-
gentleman from Michigan (Mr. FoRn),. ing the right to object, I take this time
and the ranking minority member of simply to ask the gentleman what the
-that committee, the gentleman from nature of the executive communica-
Illinois (Mr. DERw NSKI), for the cour- - tion is..:
tesies they have extended to bring this Mr. FORD of -Michigan. Mr. Speak-
bill to the floor as rapidly as they er, will the gentleman yield?
have., =:= Mr. WALKER. I am pleased to yield
Mr. Speaker I introduced this legis- to the gentleman from Michigan.
lation calling upon the Postal Service Mr. FORD of Michigan. Mr. Speak-
to name its new facility in District er, the communication, which trans-
Heights-Forestville after the late E. mitted draft legislation extending the
"lichael Roll, the long-time mayor of period for payment of subsistence ex-
strict Heights, Md. I do this because penses to certain Government employ-
vi his tremendous work in the devel- ees, amended provisions of the United
opment of his community. States Code within the jurisdiction of
the Committee on Government Oper-
ations. This request corrects the error
in the referral.
Mr. Speaker, it would actually call
upon us to take action within the ju-
risdiction of the Committee on Gov-
ernment Operations. We are trying to
hand it back to the desk so it would go
to the appropriate committee.
Mr. WALKER. Mr. Speaker, further
reserving the right to object. this is ac-
ceptable to the minority, as I under-
stand it?
Mr. FORD of Michigan- Yes, it is.
Mr. WALKER. Mr. Speaker, I with-
draw my reservation of objection}.
The SPEAKER pro tempore. Is
there objection to the request of the
gentleman from Michigan?
There was no objection.
Mr. MOAKLEY. Mr Speaker, by di-
rection of the Committee on Rules, I
call up House Resolution 223 and ask
for its immediate consideration.
The Clerk read the resolution, as fol-
lows:
H. RES. 223
Resolved, That upon the adoption of this
resolution it shall be in order to move that
the House resolve itself into the Committee
of the Whole House on the State of the
Union for the consideration of the bill (H.R.
4) to amend the National Security Act of
1947 to prohibit the unauthorized disclosure
of information identifying certain United
States intelligence officers, agents, Infor-
mants, and sources, and the first rearing of
the bill shall be dispensed with. After gener-
al debate, which shall be confined to the bill
and shall continue not to exceed one hour,
to be equally divided and controlled by the
chairman and ranking minority member of
the Permanent Select Committee on Intelli-
gence, the bill shall be read for amendment
under the five-minute rule. It shall be in
order to consider the amendment in the
nature of a substitute recommended by the
Permanent Select Committee on Intelli-
gence now printed in the?bill as an original
bill for the purpose of amendment under
the five-minute rule. No amendment to the
bill or to said substitute shall be in order
except germane amendments printed in the
Congressional Record on or before Septem-
ber 22. 1981. At the conclusion of the con-
sideration of the bill for amendment, the
committee shall rise and report the bill to
the House with such amendments as may
have been adopted, and any Member may
demand a separate vote in the House on any
amendment adopted in the Committee of
the Whole to the bill or to the committee
amendment in the nature of a substitute.
The previous question shall be considered as
ordered on the bill and amendments thereto
to final passage without intervening motion
except one motion to recommit with or
without instructions.
The SPEAKER pro tempore. The
gentleman from Massachusetts (Mr.
MOANLEY) is recognized for 1 hour.
Mr. MOAKLEY. Mr. Speaker, I yield
the usual 30 minutes to the gentleman
from Tennessee (Mr. QuiLLE?7) pend-
ing which I yield myself such time as I
may consume.
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September 23, 1981 CONGRESSIONAL. RECORD - HOUSE
H 6505
(Mr. MOAKLEY asked and was they have brought us a good bill that Mr. Chairman, first may I congratu-
given permission to revise and extend deserves our support. late the occupant of the chair (Mr.
his remarks.) Mr. Speaker, I urge the adoption of MOAKLEY) for his explanation of the
Mr. MOAKLEY; Mr. Speaker, House House Resolution 223 so that the rule which brings this bill to the floor.
Resoution 223 Is the rule providing for House may proceed to the considera- Mr. Chairman, H.R. 4, the Intelli-
the consideration of the bill H.R. 4, tion of this bill. gence Identities Protection Act, the so-
the Intelligence Identities Protection b 1045 called names of agents bill, would cri-
Act. It is a relatively simple rule, Mr. minalize the disclosure of the Identi-
Speaker. It is an open rule providing Mt. QUILLEN. Mr. Speaker, I yield ties of undercover intelligence officers
for 1 hour of general debate. It makes myself as much time as I may use. or agents. Different penalties and ele.
in order the committee amendment in (Mr. QUILLE.N asked and was given ments of proof are established depend-
the nature of a substitute as an origi- permission to revise and extend his re- ing on whether the defendant was a
marks.) present or former Government em-
n for the purpose the lannt.- Mr. Q ,LEN. Mr. Speaker, the
And, , Mr. Speaker, because e the I ' ployee who acquires information from
guage in this bill must be written care-. able 'gentleman from Massachusetts authorized access to classified infor-.
fully In order to avoid any constitu- (Mr. MoAxLEY) has not only described mation or whether the defendant de-
tional problems, the Intelligence Com- the provisions of the rule but many, of rived the information disclosed from
mittee thought, and the Rules Com- the major provisions of the bill itself. nonclassified sources.
mittee agreed, that it would be a good The Permanent Select Committee on H.R. 4 has received a great deal of
idea to have amendments printed in Intelligence is highly respected. Each public attention since It first was con-
advance in the RECORD. As a result, the Member of the House appreciates the sidered by the Permanent Select Com-
rule requires that any proposed fine job done by the chairman and the mitteeon Intelligence in the last Con-
amendment must have been printed in ranking member, and in fact by each member of that committee. We have gress. There appears to be public ap-
the CONGRESSIONAL RECORD on or m membproval of those provisions of the bill
before September 22, 1981. - confidence o - in the criminalizing the disclosure of under-1 1. Mr. Speaker, the primary purpose of So today I urge what the they report adoption out. ut rule and when the matter is discussed cover identities flowing from access to
this bill, the Intelligence Identities on the floor of the House, in the Com- classified information.
Protection Act, is to impose criminal mittee on the Whole, I urge the Com- The controversy and criticism center
penalties on those who publish the mittee to go with the full Permanent around the section criminalizing dis-
names of our covert agents. Such ex- Select Committee on Intelligence and closure where the defendant has not
posure, Mr. -Speaker, is a serious of- pass the bill as recommended. has access to classified information.
fense, which poses life-threatening Mr. Speaker, I have no requests for This section, section 601(c), is intend-
risks to the agents themselves, in adds- time and yield back the balance of my ed to reach activities of the Covert
tion to the damage It does to the secu- time. Action Information Bulletin and simi-
rity interests of the United States. Mr. MOAKLEY. ' Mr. Speaker, I lar groups. They claim they can dis-
One would hope, Mr. Speaker, that move the previous question on the res- cover the identities of our undercover
there .would be no need for this kind olution. officers- and agents by diligently study-
of legislation. Unfortunately, that Is The previous question was ordered. Ing previously published diplomatic
not the case. Unfortunately, there are The resolution was agreed to. lists and biographical registers and
those who do seek to impede our intel- A motion to reconsider was laid on comparing and collating the informa-
ligence activities and to endanger our the table. tion contained therein with other pub-
agents. As a result of their publica- Mr. BOLAND. Mr. Speaker, I move licly available Information, having had
tions, there ,have been attacks on that the. House resolve itself into the no access to classified information.
those alleged to be our agents overseas Committee of the Whole House on the They claim it is unconstitutional to
and, in at least one tragic case, the State of the Union for the considera- prohibit their disclosures.
attack caused someone's death. tion of the bill (H.R. 4) to amend the Many newspapers, while denouncing
In an effort to prevent the repeti- National Security Act of 1947 to pro- such articles, have also stated that the
tion of those kinds of circumstances, hibit the unauthorized disclosure of proposed legislation violates the first
this bill imposes penalties on those information Identifying certain U.S. amendment. Unanimously. this com-
who reveal the , names of our covert intelligence officers, agents,. infor- mittee disagrees.
agents. The penalties range. from wants, and sources. H.R. 4 is a carefully crafted limited
$15,000 and 3 years in prison to The SPEAKER pro tempore. The solution to a grave problem. It re-
$50,000 and 10 years in prison, depend- question is on the motion offered by sponds to an evil the Government
ing on the circumstances. They apply the gentleman from Massachusetts clearly has a right to prevent. It is
both to -those who- reveal agents' (Mr. BoI.Mm). narrow and precise in its scope so as to
names after having had access to clas- The motion was agreed to. give notice of. the proscriptions, and it
sified information, and to those who IN THE COMMITTEE OF THE WHOLE does not sweep within its purview any
did not have direct access to classified Accordingly the House resolved activities protected by the first amend- .
information; if the exposure of the Itself into the- Committee of the went.
agents'-. names was done? with the . Whole House on the State of the The Permanent Select Committee
"intent to Impair or impede the for-- Union for the consideration of the bill, on Intelligence has been very sensitive
eign intelligence activities of . the - H.R. 4, with Mr. MOAKLEY, Chairman to constitutional claims. We recognize
United States." . pro tempore, in the chair. the first amendment implications.
The Intelligence Committee recog-' The Clerk read the title of the bill. This committee has spent many hours
nized, however, that in imposing these The CHAIRMAN pro tempore. Pur- reaching our consensus, crafting a bill
sanctions on the publication -of infor suant to the rule, the first reading of that responds to the disclosure prob-
mation, they were legislating in a diffi- the bill is dispensed with. lem without sacrificing constitutional
cult area because of the potential for" Under the rule, the gentleman from rights. We, as well as the Senate Intel-
imposing on people's first amendment- Massachusetts (Mr. BOLAND) will be ligence Committee, have spent over
rights. The committee wanted to try recognized for 30 minutes, and the 21/z years dealing with this issue.
to prevent future danger to our agents gentleman from Illinois (Mr. The initial version of H.R. 4. which
and their missions, but at the same McCLORY) will be recognized for 30 also authorized prosecution of those
time they wanted to be very sure not minutes. with no access to classified informa-
to abridge any constitutional rights. The Chair recognizes the gentleman tion, was introduced on the first day
And, Mr. Speaker, they worked long from Massachusetts (Mr. BOLAND). of this Congress.
and hard to do just that. The commit- Mr. BOLAND. Mr. Chairman, I yield What we have done since then is to
tee has struck a very careful balance; myself such time as I might require. limit the sweep of the provision in
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116506 CONGRESSIONAL RECORD - HOUSE September 23, 1981
order to meet first amendment objec- matur of the Congress, the President, Intelligence, the gentleman from Illi-
tions: It does not inadvertently cover and the American people. nois (Mr. McCLORY).
normal reporting;, it does not cover Such a result benefits no one but Mr. McCLORY. I thank the gentle-
;e investigating and disclosing in- our adversaries. man for yielding.
Bence, agency wrongdoing; nor Mr. Chairman, I am certain that the I just want to make a brief comment.
does it cover a group's efforts to deter- Members are fully aware of the many First of all I want to commend the
mine if any of its members are infor- bills, most of them urgent, which must gentleman from Massachusetts (Mr.
mants. - reach the House floor in the next BOLAND), the chairman of our commit-
The amendments which we adopted weeks. tee, for his very effective leadership,
have ^?. reinforced the committee's . I believe that H.R. 4 is as critical a particularly on this issue, and for the
intent, from the very beginning of our measure as any because of the much manner in which the gentleman has
deliberations to reach those few mis- needed protections it will provide to delineated and described t:,is legisla-
creants who have taken it upon them- the dedicated men and women who tion.
selves to systematically destroy our in- serve in our Nation's intelligence serv- Particularly I want to commend the
telligence community. ices, gentleman on his support of the
Thus, to successfully prosecute an Further, I believe that H.R. 4- is so House version of this legislation
individual who discloses the identities drafted that amendments-be they which, as the gentleman states, has
of undercover intelligence agents but termed strengthening or weakening- been very carefully crafted following
who has had no access to classified in- will unbalance its approach. conversations which took place be-
formation, H.R. 4 requires the Govern- Accordingly, I will oppose all those tween members of our committee and
ment to prove each of the following amendments which I am aware will be members of the House Judiciary Com-
beyond a reasonable doubt: offered- mittee as a result of which we were
That the disclosure was intentional, I urge the Members of the House to able to avoid sequential referral and
That the covert relationship of the consider carefully the matters before thereby expedite the bringing of this
proper- them today, but I urge that that con- measure to the floor of the House.
agent to the United States was
ly classified information and that the cone tion be in full recognition of the I certainly want to express support
defendant knew it was classified; consensus which this bill represents for that position and commend the
That the defendant knew that the and that this amendments defeated. gentleman for his support of it. I
Government was taking affirmative- commend I e th thhe time, Mr. chairman Chairman. the Sub- thank the gentleman for yielding,
very
measures to conceal the agent's rela- committee on Legislation. , the distin- Mr. BOLAND. I appreciate very
to the United States; and guished gentleman from Kentucky, much .the comments of the distin-
That the disclosure was made as (Mr. MnzzoL2), and his colleagues on guished gentleman from Illinois (Mr.
part of an overall effort to identify that committee, the gentleman from MCCLORY).
and expose covert agents for the pur- Georgia, (Mr. FowLER). and the gen- Mr. Chairman, at this time I yield the
pose of impairing or impeding the for- tleman from Indiana, (Mr. HAMILTON), remainder of my time to the distin-
eign intelligence activities of the as well as the ranking minority guished gentleman from. Kentucky,
United States through the mere fact member, the gentleman from Illinois, (Mr. MA2zOLI) chairman of the Legis-
of such identification and exposure. (Mr. McCLORY), and the gentleman lative Subcommittee of the Permanent
bill so narrowly focused threatens from Ohio, (Mr- AsxsROOx). for the Select Committee on Intelligence, who
one's first amendment rights; at diligence and the work and the hours has given so much of his time and
L.ie same time, it is the minimum nec- that all of them have put into this effort to crafting this bill and bringing
essary response to the obnoxious activ- very sensitive piece of legislation. it to the floor today.
ities of those who make-It a practice to- Mr. Chairman,-there will be some Mr. MAZZOLI. Mr. Chairman, I
ferret out and then expose our under- half dozen amendments that will be yield myself 7 minutes.
cover officers and agents for the pur offered to this bill. It is the hope of (Mr. MAZZOLI asked and was given
pose of destroying our intelligence col, the majority of the members on the permission to revise and extend his se-
lection capabilities., Permanent Select Committee on Intel- marks.)
Mr. Chairman, I am. aware that ligence that those amendments-would Mr. MAZZOLI. Mr. Chairman, let
there exists concern among some - be. voted down- But we bring to the me thank the distinguished gentleman
Members about the constitutionality, floor a bill that has the consensus, the from Massachusetts (Mr- Boi.nrrn) for
of section 601(c). near unanimous approval of all of the his very kind words. We in our com-
These -concerns were well expressed members of our committee. It. is a bill mittee have all worked hard, and that
and fully debated in the committee. where consensus has been met with is why-we have a bill today which has
These concerns are-honest ones and our colleagues in the Committee on the near-unanimous support of the
should be heard.. the Judiciary. Last year this bill was committee, of the intelligence commu-
,::While I am not unmindful of them. I referred to the Committee on the Ju- nity, and of the academic community.
have been swayed in favor of H.R 4 by, diciary. This year, because- of the con- I think on that basis it reflects clearly
the precautions which have been sensus between the members of the the leadership of the gentleman from
taken in its drafting and by the conic- Permanent Select Committee on Intel- Massachusetts who was with us when
tion. which I believe is shared by the ligence and the members of the Judici- we began this effort 3 years ago, two
overwhelming majority of the Ameri ary Committee, this bill is brought to -Congresses ago, and he is here today. I
can people, that. the activity, which. the floor without sequential referral. want to thank him for his leadership
section 601(c) proscribes Is a perni- So, Mr. Chairman, I ask. the mem- and his willingness to pay the price for
cious act that serves no useful inform--- bers of this committee to support the the bill.
Ing purpose whatsoever. - - - bill as reported by the committee and Mr. Chairman, I rise in support of
Such activity- does not alert us to- to reject the amendments that will be H.R. 4. the Intelligence Identities Pro-
abuses; It does not further civil lib-.! offered by members, one member on tection Act. It is a carefully crafted
erties; it does not bring clarity to- our committee, and other members piece of legislation which responds in
issues of national policy; it does not- who are concerned about some of the an effective and precise fashion to a
enlighten public debate: and it does provisions, and particularly section problem of tremendous importance to
not contribute one iota to the goal of 601(c) of this bill. - our national security.
an educated and informed electorate. Mr. McCLORY. Mr. Chairman, will The problem, of course, Is the public
Whatever the motives of those en- the gentleman yield? disclosure, . by those who have had
;ed in such activity, the only result Mr. BOLAND. I am delighted to access to classified information, and
the complete disruption of our le- yield to the ranking minority member by those who have not, of the identi-
gitimate intelligence collection pro- of the Subcommittee on Legislation of ties of undercover U.S. intelligence
grams, programs that bear the impri- the Permanent Select Committee on personnel. -
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September 23, 1981 CONGRESSIONAL RECORD - HOUSE
H 6507
Such disclosures have a direct and it received broad bipartisan support in fendent has had authorized access to
harmful effect on vital intelligence the intelligence committee. classified information.
collection activities and on the well- It would establish criminal penalties Section 603 directs the President to
being of the men and women in such for intentional disclosure, to unau- establish procedures to insure the con-
activities. thorized persons, of any information cealment of the identities of covert
The Permanent Select Committee identifying a covert agent. agents. Any department or agency so
on Intelligence has spent a good part The term "Covert Agent" is defined designated by the President must pro-
of the last 3 years studying the issues to include: vide whatever assistance the President
involved with intentional disclosure of Employees of an "intelligence determines is necessary in order to
agent identities. The issues have been agency" (defined as the Central Intel- maintain concealment of the identities
complicated by the dual nature of the ligence Agency, the Intelligence com- of covert agents.
problem. ponents of the Department of De- Mr. Chairman, I urge passage of this
On the one hand, there are former fense, or the foreign counterintelli- important legisation. It represents, I
CIA employees, like Phillip Agee, who Bence or counterterrorism components believe, a vote of confidence by the
have had official access to sensitive in. of the Federal Bureau of Investigation Congress for those dedicated employ-
formation and who disclose the names (FBI), whose identities are classified ees of the clandestine service whom
of their former comrades and other in- and who serve outside the United our Government sends overseas to col-
telligence personnel. There is very States or have so served within the lect vital information.
little, if any, argument against the previous 5 years. It also demonstrates to those foreign
proposition- that such disclosures, by U.S. citizens whose intelligence rela- nationals who wish to aid our Nation's
those who are violating a position of tionships to the United States are clas- cause that the Congress of the United
trust, should be criminal offenses. sified and who reside and act outside States is determined to protect their
These cases are clear. the United States as agents of, or in- confidentiality and secret relationsiiip
Further, there is general agreement formants or sources of operational as- with the United States.
that the Government be required to sistance to an intelligence agency or Mr. McCLORY. Mr. Chairman, will
prove only the fact of such an inten- who are acting agents of or informants the gentleman yield?
tional disclosure. This contrasts with to the foreign counterintelligence or Mr. MAZZOLI. I am happy to yield
current U.S. espionage laws which re- foreign counterterrorism elements of - to the gentleman from Illinois (Mr.
quire that the disclosure be made with the FBI. MCCLORY).
Non-U.S. citizens whose intelligence
intent to harm the United States or Mr. McCLORY. I would like to ask a
that the information disclosed relate relationships to the United States are question regarding the effect of the
classified and who are present or
to the national defense. amendment to section 601(c) adopted
former agents of, or present or former
What is not so clear and where the by the Intelligence Committee.
complications arise are instances sources of operational assistance to, an H .R. 4, as introduced, as I under-
where publications, such as the intelligence agency.) stand it, focused attention on the
"Covert Action Information Bulletin," Under section 601(a), if the defen- intent of the defendant in making a
disclose the names of undercover Intel- dent had authorized access to the in- disclosure. Not at the result caused by
telligence identity which was then dis-
?ligence. agents where the information closed the penalty is a fine of $50,000 it. In committee,.Lhe language "by the
disclosed came from examination of or 10 years in jail, or both. fact of such identification and expo-
public-source documents and observa- Under section 601(b), if the defen- sure" was added to section 601(c).
tion of personnel movements ? rather dent learned, as a result of authorized My question is: Does this new Ian-
than from official access to classified access to classified information, the guage change the focu$ away from the
information. identity which was then-disclosed, the defendant's intent and rather create, a
This vexing problem commanded' a "results test"?
penalty is a fine of $25,000 or 5 years
great deal of. attention of the intelli- in jail, or both. Mr. MAZZOLI. The answer to the
gence committee. And, the constitu- In each case, the Government must gentleman's question is no.
tional issues involved were subjected prove that the information was dig- The gentleman is quite correct in his
to searching scrutiny. .', closed intentionally, that the defen- analysis of H.R. 4 as introduced-that
Because this.was such a controver- dent knew that the information identi- it focused on the defendant's i n t e n t .- sial area, some felt we should avoid fled a covert agent, that the identity The change made to H.R. 4 by the In-
the matter entirely and report a bill of the agent was classified, and that telligence Committee did not alter this -
dealing simply with disclosures made the United States was taking affirma- at all. To have created a results test
by those who have had official access tive measures to conceal the covert would have required changing section
to classified data such as disaffected agent's intelligence relationship to the 601(c) to read:
former employees. - 1:"-- IZnited States. Whoever Intentionally Impairs or impedes
The committee- concluded, however, -Under section 601(c), If the defen the foreign' intelligence activities - of the
that half a solution was really no solu- dent has had no access to classified in- United States by disclosing the Identities of
tion at all -and that the deleterious formation_ prior to a disclosure of covert agents... .
effect of public disclosure of agent covert intelligence personnel, the pen- This we clearly did not do.
identities was just as serious when the alty is a fine of $15,000 or 3 years in In sum, section 601(c) is only con-
perpetrator was one who obtained the jail, or both. - - cerned with what a person intends in.
information from other than classified The Government, in addition to the making a disclosure, not in what may
sources. elements previously mentioned in or may not have been the result of his
Furthermore, the committee could 601(c) cases, has to prove that the dig- 'having done so.
find no beneficial effect or socially or closure was part of an effort to identi- ^ 1100
philosophically desirable results what- fy and expose covert agents and that -
soever to flow from such disclosures. - -this effort was intended to impair or Mr. McCLORY. If the gentleman
Therefore, It was determined to pro- impede the foreign intelligence activi- will yield, I just want to thank the
teed - with legislation that would re- ties of the United States by the act of gentleman for his clarifying state-
spond to both aspects of this difficult such identification and exposure. ment.
problem by means of a narrowly, pre- - Section 602(b) prohibits conspiracy Mr. MAZZOLI. I have exhausted my
cisely, and carefully crafted approach charges or aiding or abetting prosecu- time. I want to thank the gentleman
so to avoid constitutional pitfalls and tions against those who have not actu- from Illinois (Mr. MCCLORY), who is
so to fully protect first amendment ally disclosed information unless an the ranking minority member of our
rights. I intent to impair or impede the foreign Legislation Subcommittee and a very
The bill before the House today is intelligence activities of the United active member of the full committee.
such a carefully crafted measure and States can be proved, or unless the de- Again I would just like to urge the
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CONGRESSIONAL RECORD - HOUSE September 23, 1981
sympathetic attention and unanimous recent Supreme Court decision in Haig agents. However, this bill, would not
support of the House for this very nec- against Agee held that- punish those who make any other
essary piece of legislation. Agee's disclosures, among other things, statements, deliver any other speech-
-. Chairman, I reserve the balance have the declared purpose of obstructing in. es, or write any other articles aimed at
C ty time. telligence operations and the recruiting of impairing such activities-no matter
Mr. McCLORY. Mr. Chairman. I intelligence personnel. They are clearly not how inaccurate or ill-advised.
yield 5 minutes to the distinguished protected by. the Constitution. The mere In other words, Mr. Chairman, this
fact that Agee is also engaged in criticism of bill would in no way affect the activi-
gentleman from Virginia (Mr. RoarN- the government does not render his conduct ties of those who seek to inform, not
SON), the ranking minority member of beyond the reach of law.
the full Intelligence Committee. The goal of the committee has been destroy.
(Mr. ROBINSON asked and was to produce not just a bill that is con- Mr. Chairman. I cannot actually
given permission to revise and extend stitutional, but one that works to find any significant objection to
his remarks.) deter those who want to- destroy our achieving the goals embodied in the
Mr. ROBINSON. Mr. Chairman, I intelligence-gathering abilities. "Intelligence Identities Protection
rise in full support of H.R. 4. It was Mr. Chairman, I join with our distin- Act". The controversy surrounds the
my pleasure to push for the passage of guished - chairman, the gentleman means employed.
similar legislation in the last Congress. from Massachusetts, and the other The approach proposed by the Intel-
when time stalled it, and I am most committee members who have worked ligence Committee-after extensive
pleased that we now have the opportu- so hard to develop a consensus on this hearings, staff work, and committee
nity to take final action on it here on bill-a consensus which very definitely debate-is three tiered. The first two
the House floor. is the product of the Legislative Sub- tiers apply to individuals who gain
I would like to first join the ranking 'committee steered by Chairman MAZ- access to Information Identifying
minority member. the gentleman from zoLu of Kentucky and: ranking member covert intelligence agents through au-
Illinois, BOB McCLORT, in terms of ex- McCLOaY from Illinois, and the- other thorized or quasi-authorized fashion.
pressing my appreciation at the com- members of that subcommittee as al- The third tier, section 601(c), would
plete cooperation, understanding, and ready mentioned by our chairman. punish anyone who discloses an
willingness to help that has been ex- H.R. 4 as reported by the full Intelli- agent's identity. But only if the disclo-
hibited by the gentleman from Massa- gence Committee is a good and a fair sures are made "in the course of an
chusetts (Mr. BOLAND), who is chair- approach to a difficult problem, and it effort to identity and expose covert
man of this committee. deserves your support. agents with the intent to impair or
The time is long passed for the Con- I urge its quick and favorable and impede the foreign intelligence activi-
gress to pass a law to punish those long-overdue consideration. ties of the United States by the fact of
who, with malicious Intent, jeopardize Mr. McCLORY. Mr. Chairman. I such identification and exposure".
our Nation's security by disclosing the yield myself such time as I may con- In the view of the Intelligence Com-
Identities of our undercover intelli sume, mittee, and with this I firmly agree,
gence agents. No other action that we- (Mr. McCLORY asked and was given the Intent requirement of section
could take at this time could be more permission to revise and extend his re- 601(c) provides the Government with
helpful to our dedicated intelligence marks.) a strong and effective new law-while,
-sonnel, our own personnel, than its Mr. McCLORY. Mr. Chairman, -I rise well protecting legitimate journalistic
-ely passage. And, similarly, it in support of H.R. 4, the Intelligence endeavors and avoiding constitutional
would be equally helpful to send a Identities Protection'Act. This legislA objections.
message to those of other countries, tion-which is a direct outgrowth of a In studying section 601(c), it is inter-
who cooperate with our intelligence bill first proposed over 5 years ago by esting to compare it with existirik law.
services, that the United States has fi- the distinguished Republican House As to the crucial issue of criminalizing
nally moved to protect-their identities leader (Mr. MICiEL)-is sorely needed the disclosure of information obtained
as well. You can imagine the Impact to put an end to the activities of those other than from classified sources, sec-
that unauthorized. disclosures have who seek to subvert the security of tion 798 of title 18 prohibits anyone
had . on these. very special -relation our Nation by exposing the Identities from disclosing cryptographic u}for-
ships.. of our' covert foreign intelligence nation or any information obtained
It makes little sense to call for better agents. though communications 'intelligence.
intelligence on one hand and then not Mr. Chairman,. we would truly be And, section 224 of the Atomic Energy
take the steps needed to provide the 'derelict in our duty- as the people's -Act (42 U.S.C. 2274) prohibits disclo-
fundamental protection required by elected Representatives if we allow the sure of atomic energy information.
those who are collecting that intelli- existing abominable situation to go Both of these statutes apply to infor-
gene or working sensitive. covert ac' unrectified. The 1975 assassination .of, mation no matter how obtained.
tions. -Richard Welch in Athens after being Mr. Chairman, there has been much
I was comfortable with the language named as a CIA officer in Counter Spy discussion in the weeks leading up to
of H.R. 5616, as reported last year, as I magazine must not go unanswered- this body's consideration of this legis-
am with the language of H.R. 4 as in- Last year's July 4 machinegun attack lation as to the relative merits of this
troduced this year., which I was on the. house of one U.S. Embassy em- bill's intent standard and the reason
pleased to-cosponsor with our distin- ployee in Jamaica, and the subsequent. to believe standard presently em-
guished chairman. The earlier version thwarted terrorist attack on another bodied in the bill being considered in
has now, been strengthened by- the ad- employee's home a few days later, the other body. After a great deal of
dition of a clarifying. amendment, after each was named as a CIA officer consideration of both bills. I have
which has just. been. discussed for the by Covert Action Information Bulletin found H.R. 4 to provide the most ef-
benefit of my colleagues .through the editor Louis Wolf, must not go unan- fective tool for putting an end to the
colloquy of the gentleman from I11f- swered. And; the terrible harm to our damaging disclosures of the Identities
nois and the gentleman from Ken- national security caused by " the. of covert agents.
tucky, this strengthening, clarifying wanton disclosures by misdirected and H.R. 4 and the bill being considered
amendment that focuses more directly irresponsible individuals must not go in the other body (S. 391) are actually
on those who are callously and system- unanswered. We must act now. very similar. However, while-as has
atically engaged in an effort to do Mr. Chairman, this bill would been noted-H.R. 4 requires that an
great harm to our intelligence oper- punish those who engage in an effort individual be shown to have acted with
ons by "naming names" and "names intended to impair or impede U.S. in- intent to impair or impede the foreign
ch places." telligence activities and who further intelligence activities of the United
Mr. Chairman, this bill meets the that effort by making a disclosure of States, S. 391's version would require a
critical test of constitutionality. A the identity of one or more covert showing that the individual had
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September 23, 1981 CONGRESSIONAL RECORD - HOUSE H 6509
"reason to believe" that such would (Mr. FOWLER asked and was given the publication, Louis Wolf, publicly
occur. permission to revise and extend his re- charged that Richard Kinsman and 14
On balance. "reason to believe", as marks.) other U.S. Embassy officials in Jamai-
in S. 391, is easier to prove than specif- Mr. FOWLER. Mr. Chairman, I rise ca were CIA agents. Less than 48
is intent, as in H.R. 4, for the former is In support of H.R. 4, the Intelligence hours later Mr. Kinsman's home was
an objective test-that is, what would Identities Protection Act, as reported attacked by submachineguns and ex-
a reasonable person believe-whereas by the House Intelligence Committee. plosives.
the later requires proof of the actual While the clear intent of this measure Such disclosures would be reprehen-
state of mind of the person on trial- is to maintain vital U.S. intelligence- sible enough if the harm were limited
that is, what did the defendant, Joe gathering capabilities and to penalize to individual intelligence operatives.
Smith, really intend to accomplish by those who wantonly seek to weaken Row ever, the continuing exposure of
disclosing the agent's name. This, on such capabilities by placing our intelli- the identities of American intelligence
the surface, seems to favor the Senate gence operatives in jeopardy, most of agents has significantly damaged the
standard, but there are serious draw- the concern about H.R. 4 centers on ability of our intelligence community
backs to it-drawbacks which ulti- the bill's potential impact on first to fulfill its primary responsibility of
mately weigh against it decisively. amendment rights.. Therefore, I will supplying policymakers with detailed
Under S. 391 a defendant would try focus my remarks on that area., and accurate information about impor-
to show that a reasonable person- It is my firm belief that H-R. 4 ad- tant developments abroad. This
and, therefore, he-would not have dresses a real and compelling problem, damage results from both the loss of
had "reason to believe" that U.S. Intel- that it successfully passes the strin- experienced agents, through forced re-
ligence activities would be impaired by gent tests which are properly applied tirement or relocation, and the loss of
his disclosure. Because reality is rele- to any attempt, to legislate restrictions confidence among potential sources of.
vant to what a reasonable person- on freedom of expression, that it de- sensitive foreign. intelligence informa-
and, therefore, what the defendant- vises an appropriate and effective re- tion about our ability to protect their
would or would not have "reason to spouse to an identified problem, that identities.
it is not overbroad in its coverage, nor
believe", a valid defense, under the Will it have a chilling effect on public Current law is demonstrably insuffi-
,,reason to believe" standard could in- discussion or criticism of intelligence cient in combating, deliberate disclo-
clude a showing that the activities of operations and policy. sures of U.S. intelligence identities.
U.S. intelligence agencies were sub- NEEa FOR THE LEGISLATION Former Attorney General Civiletti
stantially the same after the disclo- There is general recognition that stated that:
sure prior the agent's identity as they U.S. human intelligence-gathering Existing law provides inadequate protec-
Goavernnme ment to to disclose ose a a great could force deal the of programs have suffered in recent tions to the men and women who serve our
Go nation as intelligence officers. They need-
sensitive. classified information at years. This is partly attributable to ad and deserve better protection against those
trial notwithstanding the passage of ministrative and budgetary decisions who would intentionally disclose their
last year's graymail bill-as the de- .that have attempted to respond to secret mission and jeopardize their personal
fendant would be able to force from changing circumstances and priorities safety by disclosing their identities.
the.Government information In sup- for U.S. intelligence. Human been The most telling proof of the. need
port of his position. For examplef genre-gathering capabilities have been for the legislation before this 'House
also affected by the reaction against
What was CIA doing in country X the abuses of authority within the ex- today lies in the fact that none of the
before the.disclosure?? What Is CIA willful disclosures I just mentioned
ecutive branch which were uncovered have led to indictments under our es-
H.R. there now? by congressional and journalistic in-
H.R. 4's intent standard, on the vestigations in the early seventies. It is pionage and -other laws designed to
other hand, totally ignores the actual not clear what we in the Congress can protect classified information.
effect a disclosure might have had and or should do about these problems. FIRST AMENDMENT QUESTIONS
therefore would not allow for such a But, in the case of a third obstacle to As I stated at the outset, the major
defense because even if the disclosure our human intelligence. -programs controversy surrounding H.R. 4 in-
had no effect on U.S. intelligence ac- there should be far less uncertainty. I volves the issue of freedom of speech.
tivities, this would not serve to dis- am referring. of course, to those in., This is as it should be, because there is
prove the -defendant's intent. This stances where the U.S. intelligence no area requiring greater care In our
would be analogous to a defendant community has been subjected to a duties as legislators than that of free
charged with attempted murder plead- systematic effort, by certain individ- speech, and I would hold with' Jeffer-
ing that the fact that the alleged uals and publications, to expose the son that when we are faced with com-
victim Is still ajive proves that the de- _ Identities of its agents. for the express peting claims . between governmental
fendant did not intend to kill hint. purpose of hampering Its ability to op- authority and a free press we should
I believe that H.R. 4. on its own and erate clandestinely overseas in the in- display a bias toward the latter.'
read in the light of existing law, more terest of our country. .. But no right, not even first amend-
than passes constitutional muster. In To illustrate, former CIA agent ment ones, can exist as an absolute or
the end,, of course, laws, to be fair.. Phillip Agee has written two books- in a vacuum. In the words of that
must be applied fairly. Only a law that "Dirty Work: The CIA in Western great parliamentarian Edmund -Burke:
is fair on its face and in its application Europe" and "Dirty Work 2: The CIA.
can have desired social effects- within In Africa"-which revealed the names Abstract liberty, like other mere abstrac-
constitutional bounds. of over 1,000 alleged' CIA agents. tions is not to be found.... Liberty. too.
H.R. 4,. as reported by, the -Intelli- Agee's magazine Counter Spy had sin must be limited in order to be possessed.
gence Committee, is a good and. fair ilarly sought to expose American Intel- -This viewpoint finds -ample support,
approach to a difficult problem. Both ligence operatives and one of the indi- in a multitude of judicial interpreta-
the CIA and the Department of Jus- viduais it identified, Richard S, Welch,. ?tions of. the first- amendment, span-
tice believe that it can effectively meet who was a CIA station chief in Athens,,. rung the entire history of our country.
the needs of our intelligence communi Greece, was subsequently murdered in - . The document "The Constitution of
ty. It deserves your support, front of his home. the United States of America, Analysis
Mr. Chairman, I urge the House to Covert Action Information Bulletin, and Interpretation," prepared for the
states of the original
d 92d Congress
,
pass H-R. 4-without amendment. - which succeeded Counter Spy an
Mr: MAZZOLI. Mr. Chairman, I which contains a separate section spe- intent of the drafters of the first
yield 5 minutes to the distinguished cifically devoted to naming names of amendment that,
gentleman from Georgia (Mr. covert agents, claims to have disclosed Insofar as there is likely to have been con-
FOWLER), a very helpful member of the names of over 2,000 CIA officers. sensus, it was no doubt the common law
our committee. In July of last year, the coeditor of view as expressed by Blackstone.
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CONGRESSIONAL RECORD - HOUSE September 23, 1981
On the question now at issue Black-
stone wrote:
''he liberty of the press is indeed essential
ie nature of a free state; but this con-
s. _s in laying no previous restraints upon
publications, and not in freedom from cen-
sure for criminal matter when published
. To punish ... any dangerous or offen-
sive writings, which, when published. shall
on a fair and impartial trial be adjudged of
a pernicious tendency, is necessary for the
perservation of peace and good order, of
government and religion, the only solid
foundations of liberty.
Concurring in the case of Whitney
against California (1927) Justice Bran-
deis concluded that free speech rights
could be restricted "if the particular
restriction proposed is required _ in
order to protect the State from de-
struction or from serious injury, politi-
cal, economic, or moral."
In the 1950 case of American Com-
munications Association, CIO against
Douds, the Supreme Court found: -
Although the First Amendment provides
that Congress shall make no law abridging
the freedom of speech, press or assembly, it
has long been established that those free-
doms themselves are dependent upon the
power of constitutional government to sur-
vive. If it is to survive it must have power to
protect itself agaigst unlawful conduct, and
under some circumstances, against incite-
ments to commit unlawful acts. Freedom of
speech thus does not comprehend the right
to speak on any subject at any time.,
The Court provided more specific
guidance in the 1966 case of Elfbrandt
against Russell:. -
statute touching (First Amendment pro-
ted) rights must be "narrowly drawn to
define and punish specific conduct as consti-
tuting a clear and present danger to, a sub-
stantial interest of the state."... Legiti-
mate legislative goals "cannot be pursued by
means that broadly stifle fundamental per-
sonal liberties when the end can be more
narrowly achieved."
Finally, in Broadrick against Okla
homa (1912), the Court declared.
It-has long been recognized that the First
Amendment needs breathing space and that
statutes attempting- to restrict or burden
the exercise of First Amendment rights
must be narrowly drawn and. represent a
considered legislative judgment that a par-
ticular mode of expression has given way to
other compelling needs of society. -
i challenge arl one'to claim that the
systematic disclosure of overseas. intel-
ligence operatives does not present "a
clear and present danger to a substan-
tial interest of the state."
I challenge anyone in this Chamber
to disagree - with the House Intelli-
gence Committee's finding with re-
spect to the disclosures made by these
publications:
The unauthorized disclosure of the names
of undercover intelligence agents.is a perni-
cious 'act that serves no useful information
function whatsoever. It does not alert us to
abuses; it does not further civil liberties; it
does not enlighten public debate; and it does
not contribute one iota to the goal of an
-lucated and informed electorate. What.
,r the motives of those engaged in such
..ivity, the only result is the disruption of
our legitimate intelligence collection pro-
grams-programs that bear the imprimatur
of the Congress, the President and the
American people. Such a result benefits no
one but our adversaries.
TERMS OF THE BILL
The Intelligence Identities Protec-
tion Act addresses the vulnerability of
our overseas intelligence operatives in
two ways. First, it criminalizes the dis-
closure of their identities, and second
it requires the President to develop
more effective methods for preserving
their cover, While the former provi-
sions have drawn most of the atten-
tion, I believe that in the long run the
portions of the legislation concerning
improved cover, and the heightened
attention to this area they will pro-
duce, will prove to be more significant
in protecting our intelligence agents.
With regard to the criminal provi-
sions, H.R. 4 establishes three catego-
ries of offenses for the intentional dis-
closure. of information identifying
covert operatives to unauthorized per-
sons.
The first category includes those
who have had authorized access to
classified information specifically
identifying a covert agent while the
second group involves individuals who '
learn of a covert identity "as a -result.
of having authorized access to classi-
fied information" though not? neces-
sarily to specific information identify-
ing the covert agent. A person in
either of these two categories is crim-
inally liable under H.R. 4 if they in-
tentionally disclose any information
correctly identifying a covert opera-
tive to an individual not authorized to
receive classified information. Fur-
thermore, they must know that the In-
formation will in fact identify: the
agent and that the United States is
making an effort- to conceal that iden-
tity.
Penalties for the first category,
those who have had access to specific
classified information identifying the
intelligence operative, would be a fine
of up to $50,000, imprisonment for up'
tb 10 years, or both. For the secofid
category, the penalties would be some-
what lighter, up to a $25,000 fine and/
of'5 years imprisonment, because it is
assumed that they have violated a
lower level of public trust than those
who had direct, -authorized access to
intelligence identities.
The main controversy surrounding
this legislation centers on the third
category of offense, which covers
those cases where the-offender did not
have authorized access to classified in-
formation. Since this group could en-
compass anyone who revealed the
name of an American intelligence offi?
cial-including journalists-special
care had to be given to protect first
amendment rights of free speech.
The committee did this by limiting
criminal liability in the third category
to those who disclose agents' identities
in the course of an effort to identify
and expose covert. agents, which effort
is intended to impair or impede U.S.
foreign intelligence activities by the
fact of such identification and expo-
sure. In addition, to fall into this cate-
gory an individual would also have to
meet the standards of proof estab-
lished for the first two categories:
That the disclosure correctly identifies
a classified covert identity, that the
disclosure is intentional, that the dis-
closer knows that the revealed infor-
mation will in fact identify the intelli-
gence agent, and that the discloser
knows that the U.S. Government is
taking affirmative action to conceal
the agent's identify.
Penalties for this category of offend-
er are less severe than for the other
two: Up to $15,000 in fines or up to 3
years imprisonment, or both.
Let me be very clear that the com-
mittee's intent in this area was not to
criminalize exposes by legitimate jour-
nalists, nor revelations by whistle-
blowers, nor efforts by newspapert,
churches, or universities to determine
whether, in violation of their own
policy,. an employee is also an intelli-
gence agent. What was intended was
to provide some narrowly constructed
statutory protection for overseas U.S.
intelligence officials against systemat-
ic disclosures by certain publications
who have undertaken to uncover and
publicize wholesale lists of individuals
whose only crime seems to be their as-
sociation with U.S. foreign intelligence
operations.
The two major remaining sections of
the Intelligence Identities Protection
Act define the intelligence operatfle
whose identities are to be protected
and establish the defenses that are
available for an individual charged
under the terms of the bill.
Briefly, -the following intelligence
identities are covered by H.R. 4 protec-
tion` Officers or employees of a U.S. '
intelligence agency whose identity is
properly classified and who are serv-
ing, or have served within the past 5
years, outside the United States; U.S. '
citizens inside the United States whose
identity is properly classified and who
are agents of, informants, or sources
of operational assistance to the for-
eign collnterintelligence or counterter-
rorism operations of the FBI; U.S. citi-
zens outside the United States whose
identity is properly classified and-who
are agents of, informants, or sources
of operational assistance to a U.S. in-
telligence agency; and non-U.S. citi-
zens whose identity is classified and
who are present qr former agents of a
U.S. intelligence agency or who are in-
formants or sources of operational as-
sistance to a U.S. intelligence agency.
- Finally, defenses to prosecution are
established to include:. Cases where
the United States has publicly ac-
knowledged or revealed the intelli-
gence relationship in question; non-
participation in the actual disclosure
of the information identifying a covert
agent, except where the individual
acted in the course of an effort to
identify and expose covert agents with
the intent to impair and impede U.S.
foreign intelligence or has authorized
access to classified information; and
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CONGRESSIONAL RECORD - HOUSE H 6511
cases where the information in ques-
tion is transmitted to the House and
Senate Intelligence Committees.
CONCLUSION
An effective intelligence-gathering
capability is as important as, and in
some cases more important than,
armed forces in protecting our nation-
al security.
Accurate information on events
overseas, whether it involves weapons
developments by potential adversar-
ies or decisions affecting the price and
availability of a critical resource like
petroleum, is an Invaluable aid in for-
mulating our foreign and defense poli
cies. Incorrect information, on the
other hand, can lead us to make costly
and sometimes dangerous mistakes.
As is true of two pieces of legislation
reported recently by the Intelligence
Committee and enacted by the Con-
gress last year, namely the Classified
Information Procedures Act and the
Intelligence Oversight Act, the Intelli-
gence Identities Protection Act is an
attempt to enhance the ability of our
intelligence community to perform its
assigned role in'a manner consistent
with our national interests and values.
I urge a-fa'orable vote on H.R. 4.
O'1130
Mr. McCLORY. Mr. Chairman, I
yield such time as he may consume to
the gentleman from Ohio (Mr. ASH-
BROOK), a distinguished and valuable
member of the .Select Committee on
Intelligence.
(Mr. ASHBROOK asked and was
given permission to revise and extend
his remarks.)
Mr. ASHBROOK. At least before I
say what I am about to say.
Mr. Chairman, a few minutes ago
my ffiend? and colleague, the gentib-,
man from California (Mr. RoussELOr)
said, "Give me a very brief description
of why you are offering your amend-
ments and?the difference -with the
Committee version."
My response to him was the differ-
ence is that my amendment would
knock out of the American Civil Lib--
erties Union compromise in the lan-
guage of this bill. It is just that simple.
I would give the gentleman five good
reasons why. we should not support.
H.R. 4 as it stands now. Five good rea-.
sons why we should support either the
Senate version or my amendments to
bring H.R. 4 up to speed-
First, I. will lay it out flat. The lan-
guage that I object to is American
Civil Liberties Union language. Our
committee, accepted this as a compro-
mise. I understand that. The compro-
mise was necessary, they think, be-
cause we are so anxious to get a bill
that protects the agents that we would
even make that kind of compromise
with the ACLU to get H.R. 4 passed.
I will not make this compromise and
I hope the Members of this body do
not. If anybody wants to take this
charge to task. I can give them chap-
ter and verse, where the language
came from and how it got there. We
have the ACLU internal documents.
There is no doubt in my mind, I will
say it factually, it is not our language,
it is theirs.
The President of the United States
supports and prefers the language
that I have offered and supports the
Senate version which is identical.
I hope most of the Members got the
letter that I sent out last night which
contained the President's own letter.
That letter states that-
Any change to the Senate version would
have the effect of altering this carefully
crafted balance. I cannot overemphasize the
importance of this legislation. I hope I can
have your support In reporting S. 391 with-
out amendments.
The third point I would make is that
the people who know the most about
it, the Central Intelligence Agency,
support and prefers the Senate lan-
guage. A letter is used by the opposi-
tion that indicates the CIA would
accept the compromise language.
True, but read the letter carefully. It
says they prefer Senate 391. The oper-
ative word is "prefer."
For the Association of Former Intel-
ligence Officers, the group that knows
the most, those that are out in the
field and-I fqr one am sick and tired
listening. to people at the top. Listen
to those in the field, listen to those
who live with the. law out in the
trenches. They want S. 391. They-
want my amendments. That is the
fourth reason.
Fifth, talk to the wives, the families
of those who have been out in the
field, who have had their families,
their home, their husbands, attacked
by agents of enemy powers, as* a result
of a disclosure of names of their loved
ones.
*I put a letter, in the RECCIin last
bight-unfortunately it . did not get
printed because I made a mistake, I
put too much extraneous matter in,
which I often want to do.
I included a letter by Mrs. Sheila
Kinsman in my remarks, a three-page
letter, pleading and imploring the
Members of Congress to pass the most
stringent language possible to protect
people like her husband who was the
target. of attack.in Jamaica after the
disclosure of his name by the enemies
of our country, not just the CIA,-who
we are talking about today and trying
to provide good language which will
insure their prosecutors.
Five good reasons why either Senate
391 or my amendments to H.R. 4 are
necessary.' I support H.R. 4 with
amendments. But, to repeat, I see no.
reason whatsoever that the Members
of this body should accommodate
what we think it right to the requests,
the demands or whatever we want to
call it of the American Civil Liberties
Union. We simply should not let Jerry
Berman, and not let Morton Halperin,
have that kind of influence on this
body.
I understand how it was done. I rec-
ognize why it was done. And in my re:
marks, if my colleagues will read my
dissenting opinion in the committee
report, it is very clearly shown exactly
how it happened.
On July 13, 1981, Halperin and
Berman visited the CIA Headquarters
building in Langley to discuss a com-
promise on the names of agents bill in
exchange for modifying the language
in section 501(c) which is now 601(c).
They promised that their supporters
would not try to delay this bill.
Three days later, our committee met
and adopted the compromise as laid
out by the American Civil Liberties
Union. It was done in good faith-I un-
derstand why-because there Is a
desire to protect the agents, there is a
desire to make sure this bill is not
again delayed. Very possibly it would
have been delayed had not that con-
cession been made. We don't have to
ratify that concession and we should
not. .
I did not agree to that compromise. I
did not agree to it then, I do not agree
to it now, and I hope the majority of
this body will support my amendment.
[Mr. ASHBROOK addressed the
Committee. His remarks will appear
hereafter in the Extensions of Re-
marks.] -
Mr. McCLORY. Mr. Chairman, will
the gentleman yield?
.Mr. ASHBROOK. I yield to the gen-
tleman from Illinois.
Mr. McCLORY. I thank the gentle-
man for yielding.
I want to say very forthrightly to
the gentleman, as far as the language
in this legislation -is concerned, I am
not aware of the gentleman's state-
ment of its origin with the ACLU. I do
know that in my conversations with
representatives of the CIA that they
have indicated that they would sup-
port this language, and I?likewise have
a letter from the Association of
Former Intelligence Officers, just
dated yesterday, which states that
they support the early enactment of
H.R. 4.
The CHAIRMAN. The time of the
gentleman from Ohio (Mr. ASHBROOK)
has expired.
Mr. McCLORY. Mr. Chairman, I
yield 1 additional minute to the gen-
tleman from Ohio (Mr. AsHBROOK).
Mr. McCLORY. The letter states
they support the early enactment of
H.R. 4 either with the version in H.R.
4 or S. 391.'
So that I am very anxious to cooper-
ate with them, too, and I feel that
they are satisfied with the language in
the House bill
Mr. ASHBROOK. My colleague very
carefully and properly made a distinc-
tion which I do not make. He said they
support it. He also knows what they
prefer. Will he state to the Members
of this body what they are on record
as saying, what they prefer? They
prefer the Senate language, do they
not, in the same letter the gentleman
received? It indicates they prefer
Senate 391? The gentleman has the
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CONGRESSIONAL RECORD - HOUSE September 23, 1981
letter in front of him, I would say to Mr. MAZZOLI. Will the chairman
my colleague. advise the gentleman from Kentucky
Mr. McCLORY. In the letter that I of the time remaining.
-'e they just state that they are con- The CHAIRMAN. The gentleman
ied about the importance of this from Kentucky (Mr. MAzzoLI) has 11
lcgislation and they urge the early en- minutes remaining.
actment of either S. 391 language or Mr. MAZZOLI. Mr. Chairman, I
H.R. 4 language. yield 1 minute.to the gentleman from
Mr. FOWLER. Mr. Chairman, will Ohio (Mr. ASHBROOK).
the gentleman yield? Mr. FOWLER. If the gentleman will
Mr. ASHBROOK. I yield to the gen- yield further, in response to my friend
tleman from Georgia. from Ohio, I believe that the over-
Mr. FOWLER. I thank the gentle- whelming weight of the testimony
man for yielding. from experts in the field, both consti-
Would my distinguished colleague tutional scholars and those within our
from Ohio not agree-as I think we Nation's intelligence agencies, whom
can agree-that the CIA recognizes we are trying to protect, evidenced se--
the acute nature of this problem, rious concerns that the standard that
which all of us are attempting to ad- the gentleman from Ohio proposes
dress; and the CIA, and all of our de- would not meet constitutional tests be-
fense establishments, prefer that ver- cause it would criminalize disclosures
sion which will stand constitutional of information derived from unclassi-
muster? ? . ? fled sources by people who have not
The CHAIRMAN. The time of the had access to classified information on
gentleman from Ohio (Mr. AsHsROOK) the basis of a negligence standard, a
has again expired. standard most often used for torts. -
Mr. McCLORY. I yield 1 additional 01130
minute to- the gentleman .from Ohio In my statement, I attempted to
(Mr. FOI1V ox). trace the constitutional history, the
Mr. . FOWLER. If the gentleman will
yield further, I would like to refresh case history of precedents requiring
the memory of my colleague in the specific intent when we criminalize
well with the testimony, before our first amendment activity. -
committee of the former CIA counsel, I would simply urge that that it is as
Daniel Silver, and I quote: - a result of the committee's 2 years of
It is from my point of view as a lawyer deliberations on this?matter under the
clear to me that without a specific intent leadership of Chairman BoIAivn and
element a statute that applied to someone subcommittee. Chairman MAZZOLI.
who dealt only with unclassified informa- Mr. ASHBROOK. Mr. Chairman, if
in and phenomena would have serious my colleague will let me take the last
lstitutional problems, but this bill which 15 seconds, we clearly cannot discuss it
,our committee has very carefully drawn in 1 minute. We will under my amend-
avoids those problems. ment.
The specific intent was put in there Mr. MAZZOLI. Mr. Chairman, I
not because of who suggested it or yield such time as he may consume to
who proposed it after 2 years of a distinguished member of our sub-
debate, but to try to meet constitu- 'committee, the- gentleman from Indi-
tional strictures, and that is why a ana (MVlr. HAMILTON).
specific intent standard is preferred by (Mr. HAMILTON asked and was
this committee, the majority of our given permission to revise and extend
committee, rather than "reason to be- his remarks:)
lieve"- Mr. HAMILTON. Mr. Chairman, I
Mr. ASHBROOK. If I may reclaim rise in support of H.R. 4, the Intelli-
my time, laying his opinion against Bence Identities Protection Act.
that of the Attorney General of the Mr. Chairman, most Americans are
United States, the President of the shocked and dismayed when they see:
United- States, the person most'respon- ?' A former IA employee previously
sible for -discharging the law, indicates entrusted with classified material pub-
the Attorney General advises him the licly revealing the names of covert
Senate version of this legislation is le- CIA agents; or
gally sound from a constitutional, When they learn of the various
standpoint. - - groups of our citizens who systemati-
The CIA counsel says it is legally tally try to ferret out and publish the
f tit t nal stand- names of agents in order to harm U.S.
u to
d
would require the Government to
reveal additional sensitive informa-
tion, and thus may itself cause addi-
tional harm to our intelligence capa-
bilities.
The result has been a hesitancy by
the Justice Department to prosecute,
and that unfortunately has led to a
significant increase in the publication
of books, newspapers, and magazines
purporting to disclose the names of
U.S. covert intelligence agents. It has
been estimated that over the past few
years, more than 2,000 such names
have been publicly revealed, and yet
not even one individual has been im-
prisoned for releasing any of them.
Disclosure of the names of agents
may take many forms:
From the disgruntled former CIA of-
ficer who decides to turn or is fellow
workers, to the respected r ,rter who
may identify an agent inci ntally in
the course of a legitimate expose on
newspaper reporters working covertly
for the CIA.
In this bill, H.R. 4, we are not pro-
ppsing that every individual revealing
an agent's identity under any circum-
stances be subject to criminal penal-
ties. Such an across-the-board prohibi-
tion would have a chilling effect on
free speech and would no doubt be un-
constitutional. -
Rather, we are restricting the legis-
lation only to three types of una(lthor-
ized disclosure:
First, disclosure by Government offi-
cials and others entrusted with access
to classified information that identi-
Second, disclosure by those with
access to classified information that
allows them to discern such identities;
and
Third, disclosure by those without
access to classified information who
are in the business of ferreting out
and naming names in order to disrupt
U.S. intelligence activities.
The bill does not apply to casual dis-
cussion, political debates, legitimate
journalism, and the like.
Although the committee wes unified
in pursuing this goal,. it proved ex-
tremely difficult to find precise lan-
gu~.ge to do exactly what we wanted.
The section addressing those in the
business of naming names without
access to classified information, sec-
tion 601(c), presented the major diffi-
culties.,
On. the one hand, we wanted to
rom a cons
soun
point. They indicate both versions. intelligence activities. make the language narrow enough so
I would acknowledge the gentle One such group, publishing the - that we did not also make criminal, for
man's version is and I hope the gentle- Covert Action inform-at on Bulletiii, _exai)aple, the actions of.. legitimate
man will not try -t0 .say S. 391 is not. operates Within a few steps of the Cap- journalists. On the other hand, we did
k +V1 It t
e o0
t
constitutionally sound because all of
the sound authorities, the Attorney
General, the CIA; our staff, virtually
everyone that has dealt with both of
them say both versions are sound. I
hope the gentleman would not try to
,dicate that is not the case.
The CHAIRMAN. The time of the
gentleman from Ohio (Mr. AsxsaooK)
has expired.
o ma e e - -b
itol, and regularly runs a feature titled not want
"Naming- Names," revealing 10 to 20 narrow so that groups- like the pub-
agents per issue.. ushers of the CAI Bulletin could easily
However, Americans are even more sidestep the law by simply redescrib-
shocked and. dismayed when they ing or restructuring what they are
learn that there is basically no crimi- doing.
nal statute to specifically prohibit the The task provided especially trouble-
unauthorized release of such classified some: Since the time the committee
information. Prosecuting under the first took up trying to draft such lan-
general and vague espionage laws guage some 3 years ago, we probably
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September 23, 1981 CONGRESSIONAL RECORD - HOUSE
have seriously considered more than Mr. MAZZOLL Mr. Chairman, if the
15 different versions of this section. gentleman from Illinois will indulge
The versions all involved subtle the gentleman from Kentucky, I
changes in emphasis. We changed the would like to yield 2 minutes to the
language from: distinguished gentleman from Califor-
Talking of patterns of activities to nia (Mr. EDWARDS), and then get back
talking of efforts; Into the regular order.
From talking of harming the effec- (Mr. EDWARDS of California asked
tiveness of covert agents to talking of and was given permission to revise and
harming the effectiveness of U.S. in- extend his remarks.)
telligence activities; and Mr. EDWARDS of California. Mr.
From talking of purposes to talking Chairman, I rise In opposition to H.R.
of intentions. -4. The bill creates three new criminal
The language that we finally agreed offenses. The first two prohibit per-
on In H.R. 4 as reported strikes a rea- sons who have had authorized access
sonable balance, and I believe that to classified information from reveal-
Chairman BOLAND and subcommittee ing the identity of certain covert intel-
Chairman MAZZOLu should be con- ligence agents. -I support the effort to
gratulated. In essence, our final lan- punish those who would abuse their
guage in section 601(c) properly focus- positions of trust to the detriment of
es only on those in the business of the lives and safety of our intelligence
naming names by requiring: agents overseas as well as U.S. nation-
That they must be engaged in a gen- al security interests.
eral effort to identify and expose On the other hand, thAhird catego-
covert agents; ry, section 601(c) of the bill, however
That the disclosure must be inten- well Intentioned In its effort to pre-
tional, consciously and deliberately vent exposure' of our covert agents,
willed; and. tramples on protected first amend-
That they must have a specific ment freedoms. For the first time. in
intent to harm U.S. foreign intelli- American history, the publication of
gence activities by the disclosure. information obtained lawfully from
I believe that this language and the publicly available sources would be
expanded legislative intent in our com- made criminal.
mittee report is a good and reasonable I recognize and applaud the efforts
attempt to include under the law made by the Intelligence Committee ?
those we wanted to include, and ex- to narrow the scope of section 601(c)
elude those we wanted to exclude. No to keep it within constitutional
one would maintain that our language bounds. Nevertheless, - it is my firm
is infallible or that it is precisely what belief, which Is supported by many-
everyone wanted. However, it presents- noted constitutional experts, that no
a reasonable compromise. - amount of tinkering can rehabilitate a
Our full committee accepted it by a slaw which crimirlalizes constitutional-
clear majority vote, and the Judiciary ly protected freedoms of speech, press,
Committee found it acceptable enough and political expression.
not to request sequential referral; Moreover, the bill allows no exeep-
The CIA has found it acceptable and lion Where disclosuyes are aimed at re-
-the Justice Department -says that it vealing illegal activity. Oversight of
could satisfactorily prosecute under it; our intelligence activities, traditionally
Legal scholars -before the- committee exercised by all the American people,
testified that it appears constitutional; the press, and the Congress will in-
add' stead be relegated solely to the two al-
Even outside groups on divergent ready overburdened Intelligence Com-
ends of. the political spectrum who -mittees. Recent events concerning the
publicly murmur about the bill have disturbing activities of the top eche-
said privately: that they could live with Ions of the CIA demonstrate that
it. - - greater accountability is necessary
Today-we will hear criticism'on both rather than less.
sides: Some may argue that we have- The best solution Is to concentrate'
drawn the language too tight; others our efforts to Improve the cover pro-
that we -have not drawn the language . vided the CIA, -and any other covert
tight enough. I believe that we have agents operating on our behalf over-
carefully weighed the alternatives and seas, not to create criminal penalties
that. we have finally arrived at a pro- which stem the flow of Information
posal that strikes a reasonable bal- -only to our own public and do little to
ance: protect our agents from hostile powers
We have drafted language that' overseas.
makes illegal, 'disclosure by those en- -I urge you to vote against this bill.
trusted with access to classified mate- - And, Mr. Chairman, I ask 'unani-
rial or by those in the business of- -rpous consent-to revise and extend my
naming names in order to harm U.S. remarks.
intelligence; and % I firmly believe officers, employees,
We - have carefully avoided being
overzealous and possibly ensnaring un-
intentionally those we do not wish to
catch, that is, legitimate journalists or
whistleblowers.
Mr. Chairman, I urge the adoption
of H.R. 4.
and sources that operate covertly on
behalf of American foreign --intelli-
gence must be protected from harm
and exposure. I share the alarm of my
colleagues arising from callous and ir-
responsible disclosure of names of
covert agents. However, I believe that
H 6513
the goal of maintaining secrecy and
minimizing risk of harm can be
achieved by less onerous means.
The portion of H.R. 4 which I ques-
tion Is section 601(c). This section is
aimed primarily at private citizens and
the press who gain knowledge of agent
Identities from either public or classi-
fied sources. In both instances, first
amendment interests are compro-
mised.
The Intelligence Committee . at-
tempted to alleviate the adverse
impact on the first amendment by
adopting language that narrows the
intent requirement. Criminality hinges
on a finding that -the identification
was made "knowingly." with "an
intent to impair or impede the foreign
intelligence activities of the United
States" and "in the course of an effort
to identify and expose covert agents,"
and by adding a requirement that the
disclosure intend "to impair or impede
the foreign Intelligence activities of
the U.S. by the fact of such identifica-
tion and exposure." While I applaud
the- committee's efforts, I refrain con-
vinced that no amount of tinkering
cart render this section constitutional,
as long as it seeks to criminalize publi-
cation of information already in the
public domain. These judgments all
are highly subjective, thereby leaving
the door open for less cautious offi-
cials to level this provision at a broad
class of individuals, many acting
within the Constitution. -
The requisite intent can be inferred
whenever the publication exposes and
thereby diminishes the effectiveness
of an intelligence agent or activity.
Further, the intent requirement itself
may have "the effect of chilling legiti.
mate critique and debate."
? In gdditton; it is clear that the name.
need not actually be revealed to con-
stitute ":identifying information." In
some circumstances, simply noting the
agent's title and location may be suffi-
cient to reveal his identity. Thus, the
number of details that must be omit-
ted; and the consequent loss -of credi-
bility, is also a vague, expandable con-
cept.
Finally, ~ the concept of "in :. the ?
course of an effort" offers no real pro-
tection. As a Society of Professional
.Journalists -witness noted during the
debate on this bill last year, "a jour-
nalist who is assigned to cover the in-
telligence community on a regular
basis may indeed establish a pattern of
reporting the names of agents or
sources in the course of legitimate cov-
erage-of the CIA."
Furthermore, . even if the revelation
was a single story or.a single incident,
it is not clear that the act of investi-
gating the story and preparing to pub-
lish it are insufficient to meet the
Government's concept of "effort." The
Department of Justice repeatedly has
emphasized that the effort need not
consist of a pattern of disclosure, but
rather may be simply a pattern of acts
with a purpose of disclosing.
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H 6514 CONGRESSIONAL RECORD -- HOUSE September 23, 1981
I am not alone in this view. Distin- of the notion of what constitutes free- prit is the combination of sloppy secre-
guished constitutional scholars from dom of speech and the press by cri- cy procedures and unauthorized dis-
around the country have also criti- minalizing the utterance of publicly closure of classified information.
-'zed section 601(c) and its pred- available information without a show- In other words, section 601(c) of the
assors as being both unwise and un- ing that the national security is at Intelligence Committee bill attacks a
, onstitutional. . stake; indeed, there is no requirement phantom problem-private citizens
Consider this from Stephen Saltz- that any adverse impact be felt by culling through public documents and
berg of the University of-Virginia Law reason of the disclosure in order to sources. It thereby diverts attention
School: constitute a crime. from the real heart of the problem,
When it comes to punishing people.who I am also concerned about the wide which, as the CIA itself admitted, is
have figured out the identity of an agent on range of individuals covered by this "the disclosure of sensitive informa-
* * ?
the basis of Information available to the
public, I think there are enormous problems
to overcome. In fact, they cannot be over-
come when all is said and done.
I recognize that the intent element of Sec-
tion [601(c)] is the thread of hope for
saving the statute, but in my view the
thread is not strong enough. To punish
people who want to impair or impede the
foreign intelligence activities of the United
States is to threaten anyone who favors a
cutback In foreign Intelligence gathering, or
controls on the manner in which informa-
tion is gathered; and it is a threat that
cannot withstand scrutiny under the First
Amendment. If a person does research in
the library or archives and learns that X
has been involved in intelligence work in
Iran or Afghanistan,. and the person be-
lieves that the nature of the work is not
suitable for our government, can this per-
son's mouth be closed by a statute like Sec-
tion (601(c))? Is it really permissible-to pre.
vent people from trying to get the govern-
ment to change its ways by publicly disclos-
ing wiriat has been going on In order to criti-
cize it? I doubt it. The line between an in-
tention-to impair the intelligence activities-
of the United States and an intention to
seek a modification of the intelligence activ-
ities of the United States is one that is too
fine for me to perceive.
Of course, the First Amendment involves
,alancing of interests. The ,need for the
United States to, protect its officers and
agents Is surely real and gfeat, but the First
Amendment Is at its strongest when people
are speaking out against the government,
criticizing what it and its agents are doing.
And I think the balance here will be in
favor of speech:
Section 601(c) prohibits publication
of identifying information even if the
reporter or private individual derived
the identity or identities wholly from
public sources. This includes disclo-
sures based upon- Inferences drawn
from the Government's own nonclassi-
fied documents; it includes the publi-
cation of "common? knowledge" as to
who is a CIA. agent. or source in a par-
ticular area; it includes the revelation
by an organization. such as a mission-
legislation. I believe this overinclusive-
ness adds to the constitutional prob-
lems of this bill.
A covert agent is defined to include
not only intelligence officers or em-
ployees serving covertly outside the
United States, but also anyone who is
a "present or former agent of, or a
present or former informant or source
of operational assistance to an intelli-
gence agency."
"Informant" is defined broadly as
"any individual ,who furnishes infor-
mation to an intelligence agency in
the course of a confidential relation-
ship protecting the identity of such in-
dividual from public disclosure." It is
'Clear, therefore, that thousands of in-
dividuals fit this description, and that
the bill- is primarily a source protec-
tion bill for the CIA and the FBI. Re-
gardless of the merits of their need for
protection, the breadth of the defini-
tion broadens the restraint. of freel
speech. -. -
Furthermore, it is not clear that pro-
tecting the identity of sources, who
may be in no greater peril than any
other law enforcement informants,
weighs as heavily against the need for
open discussion of American foreign
affairs as does the protection of em-
ployee identities. -
Indeed, the original position of the
Attorney General, when this bill's
predecessor was under discussion last
Congress, was solely to protect from
harm the "men and women who serve
our Nation as intelligence. officers."
Likewise, the FBI Director, in seeking
FBI coverage, originally' spoke only of
"employees."
This expanded purpose should alert
?us to the danger of future additions to
the definition of - disclosures that
impair :American - intelligence activi-
ties. Congress could criminalize the
disclosure of many other matters de-
rived from public information, such as
by
tion based on privileged access
faithless government employees * * ' "
This problem can be dealt with by
punishing those employees and former
employees who breach their trust by
revealing Identities or by providing as-
sistance to others in identifying covert .
agents.
Moreover, if indeed it is possible to
glean identities from public informa-
tion or documents, then it is the re-
sponsibility of the CIA and the Presi-
dent to remove those indicators from
the public domain and to improve the
procedures for insuring effective
Cover. Criminalizing disclosures stem-
ming from sloppy secrecy procedures,
on the other hand, will only tend to
lull the Agency into inaction. Surely if
private citizens have been able'to infer
identities from public sources, so, *too,
has the KGB.
As the House Permanent Select
Committee on Intelligence act "com-
plelled to note that provisions for the
concealment of intelligence operative
are not fully adequate. The burden
must be on the executive branch gen-
erally, and the intelligence community
in particular, to remedy this situa-
tion."
-
Accordingly, the committee adopted
a provision requiring the President to
promulgate procedures that will help
to rectify this situation.- I believe this
-course of action will'be more produc-
tive and certainly less destructive of
free speech.
Never before has a criminal sanction
been attached to this kind of speech.
The CIA insists that it is necessary,
but it is the responsibility of Congress,
as well as the courts, to determine
whether such a measure is constitu-
tional or whether a less onerous alter-. .
native will deal adequately with the
problem. ?
In conclusion, I believe this bill is
dangerous not only for what it forbids
.
s, y ulIu1GL1, lacway.v.., va ---j.
based on its own internal investiga- themselves, the methods used, and so directly, but also, for. the precedent it
tion, that some of its members-con- forth. The fact that those activities creates.
trary to the, organization's -policy- may have been in clear violation of Today we ban the disclosure of iden-
have, acted as sources for the CIA; it American law or policy would be no tities. Tomorrow, there will be talk of
includes republication of disclosures- defense. How will the line be drawn banning disclosure of covert actions
made -by others. The limit on =how
public this information must be before
prosecution will is left to the discre-
tion of political appointees.
Moreover, section 601(c) criminalizes
disclosures under a wide variety of cir-
cumstances. Try as the House Intelli-
gence Committee did to limit the bill, I
still believe it will forbid both wanton
tnd callous disclosures as well as those
that serve a socially useful purpose. It
will create an unprecedented dilution
public debate arguably could impair or same-the preservation of effective
impede- intelligence activities or for- foreign intelligence efforts.
eign relations or national defense? If the American. people are denied
For these reasons, I believe this cov- information, they are denied ? the
erage. Is vastly overbroad, and funda- power that the Constitution says re-
mentally at odds with a free society. It sides with them. Preventing that is
is also unnecessary. Section 601(c) what the first amendment is all about.
simply misses the mark-it, aims the Ultimately, it is the respect and pro-
arsenal of the criminal law at the tection we afford free speech that dis-
entire populace. But all the available tinguishes this country from the na-
evidence indicates that the true cul- tions within which the CIA secretly
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September 23, 1981 CONGRESSIONAL RECORD - HOUSE
operates. If a free society is sacrificed
for a better intelligence system, we
have compromised our very goal.
Mr. MAZZOLI. Mr. Chairman, I
thank the gentleman for his state-
ment. I understand the gentleman's
position.
Mr. Chairman, I reserve the balance
of my time.
Mr. McCLORY. Mr. Chairman, I
yield 3 minutes to the gentleman from
Florida (Mr. YOUNG), a member of the
committee.
Mr. YOUNG of Florida. Mr. Chair-
man, I rise In support of H.R. 4.
I will even support it stronger if it
includes the amendment to be offered
by my distinguished colleague, the
gentleman from Ohio (Mr. AssaROOx).
I would like to. Just make a few
points in support of this legislation.
You know, when the Committee on In-
telligence meets In open session which
it does occasionally,. more often than
not, representatives of the. Soviet
Union are there In the room observing
what it Is we are doing and talking
about. On the Appropriation Commit- -
tees dealing with defense, the same
thing happens. In the Armed Services
Committee, the same thing happens.
The point is that the Soviet Union is
able In open sessions to send its opera-
tives into this Congress to get for
nothing information that we' make
available to the general public. They
not only cover the meetings, they
come in to pick up copies of our publi-
catior)s usually without cost., They
visit offices on Capitol Hill and they
learn for nothing things about us that
we have to spend millions of dollars to
learn about them. We have to put peo-
ple's lives at risk to learn about them
and what their plans are for us and
our future.
Our security Is important and the in-
formation that we obtain through
these Intelligence operations are im-
portant to that security.
The point is, Mr. Chairman, that we
have to have an effective intelligence
operation and the protection of the
identities of those people who perform
that vital service is extremely impor-
tant if we are going to succeed.
One of our allied nations sent repre-
sentatives here about a year ago to
meet with members of our committee
to determine what we : believe the
future of our intelligence community
to be Are we going to protect our
agents, are we going to protect secrets?
Their concern was not so much about
how does that affect the United
States, but how does that affect them.
If we let out too much information, if
we allow. agents to be exposed and to
be exposed to this risk, what kind of a
risk are we-creating for them back in
their own countries?
I say, Mr..-Chairman, that it Is Im-
portant that we have the cooperation
of our friendly nations and our allied
nations, because they also have effec-
tive intelligence operations. This legis-
lation is extremely important not only
to the security or our Nation, but to
guarantee the continued cooperation
of our allied nations and the preserva-
tion of an effective intelligence com-
munity.
Mr. Chairman, I would like to close
with this comment.
There are those of us who serve on
the Select Committee on Intelligence
who have different philosophical view-
points from one end of the spectrum
to the other; but I can say, Mr. Chair-
man, that every member of that com-
mittee approaches the responsibility
and the security of our Nation in a
very mature fashion, in a very respon-
sible fashion.
Yes, we do have some disagreements
at times, but -the disagreements are
not political. They are never personal.
Those disagreements are what mem-
bers honestly and truly believe to be
in the. best Interests of the United
States of America and the security of
our Nation and the security of our
people.
I am very proud to have the oppor-
tunity to work with people like the
gentleman from Massachusetts (Mr.
BoLAxn), the gentleman from Ken-
tucky (Mr. MAzzom), the gentleman
from Virginia (Mr. ROBINSON) the
ranking member on our side, and the
gentleman from Illinois (Mr.
MCCLORY), as well as every other
member of our committee.
We bring to you a piece of legisla-
tion that I think deserves the unani-
mous support of this House ofRepre-
sentatives.
Mr. McCLORY.. Mr. Chairman , I
yield 1 minute to the gentleman from
Michigan (Mr. BROOMFIELD).
(Mr. BROOMFIELD asked and was
given permission to revise and extend
his remarks.) - -
Mr. BROOMFIELD. Mr. Chairman,
I want to compliment the gentleman
from Illinois (Mr. McCLORY), the gen-
tleman from Kentucky (Mr. MAZZOLY),
for this excellent- piece of legislation,
along with the gentleman from Massa-
chusetts (Mr. BOLAND) and the gentle-
man from Virginia (Mr. ROBINSON).
This legislation is long overdue. I
think they have done a great job.
I certainly hope the Members will
give ? it the strongest support, because
we need this kind of legislation on the
statute books.
Mr. Chairman, the primary purpose
of this measure is to enhance the pro-?
tection of U.S. intelligence operatives
working under cover. Such legislation
is of compelling urgency as there are
individuals, including former U.S. in-
telligence officials, who are busily and
systematically engaged in efforts to
destroy our intelligence capability by
disclosing the identities of those clan-
destinely employed by the various U.S.
intelligence agencies..
An episode in- Jamaica illustrates
what I am talking about. In July of
last year, the homes of our Embassy's
First Secretary in Jamaica and an AID
employee were fired upon shortly
after the American editor of Covert
Action Information Bulletin claimed
H 6.515
in a press conference that these U.S.
officials and 13 other Americans, as
well as Jamaicans, were connected
with the CIA. Not only were the
names of these individuals disclosed,
but also their home addresses, tele-
phone numbers and auto license tag
numbers. Fortunately, unlike the CIA
station Chief in Athens who was killed
in December 1975 after his cover was
blown in a similar fashion by the mag-
azine Counter Spy, the American offi-
cials and families involved' in the
Kingston attack survived unscathed. It
was a close call, however, as two of the
bullets penetrated the bedroom
window. of one of the children who was
providentially away at the time.
With that as backdrop, it is little
wonder that our human intelligence
collection efforts are in serious jeop-
ardy around the world. Self-preserva-
tion is a very basic instinct and why
should anyone want to be associated
with an intelligence community that
cannot provide adequate protection
for those it asks to undertake danger-
ous assignments of significant national
security import?
In evaluating the merits of this legis-
Iation, I find-former CIA Dil-ector Wil-
liam Colby especially persuasive when
he, while participating in an American
Enterprise Institute panel discussion
of intelligence matters, observed that:
The journalists believe they. should pro-
tect their sources. I think our Nation should
pr~otect its sources. We need a discipline
? o~`!r our employees to make sure that, when
they undertake to keep the secrets they are
going to learn when they go to work for in-
telligence. they darn well keep them. If they
violate that trust, they should be subject to
criminal action. There are thirty-odd stat-
utes in our criminal code that punish gov-
ernment officers for revealing information
they learned during the course of their
work-the Agricultural Department employ-
ee who reveals the crop statistics, for exam-
ple, and a variety of others. - -
Our national secrets and the officers who
serve their country are entitled to that same
protection from someone who reveals them.
The soldier does not mind the enemy shoot-
ing at him, but he certainly does not want a
fellow American shooting at him. The intel-
ligence officer does not mind the threat and
the danger from the enemy or the foreign
country, but he cannot accept the possibil-
ity that some A4nerican can freely reveal his
name and endanger him.
Finally, I. would like- to address brief-
ly the first amendment questions of
this bill that have been raised by some
of my colleagues, especially with re-
spect to criminalizing disclosures of
undercover intelligence identities by
individuals who have never been affili-
ated with the U.S. - Government. Of
special concern in this rggard are jour-
nalists. This bill was drafted with
great care and sensitivity to this issue
and I believe has resolved it in a re-
sponsible and constitutionally accept-
able manner. Such individuals can
only be prosecuted under this legisla-
tion when it can be clearly -demon-
strated that the disclosure occured in
the context of a practice of identifica-
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CONGRESSIONAL RECORD - HOUSE September 29, 1981
tion and disclosures intended to impair stated by the committee is to prevent telligence goals. This is a necessary
U.S. intelligence capabilities. _ the disruption of legitimate, impor- component of effective legislation be-
This means that to be criminally cul- tant intelligence operations, and to cri- cause it would clearly stipulate that
n.e, one would have to be engaged in minalize those disclosures which clear- the outright objective of exposing in-
business of naming names like the ly represent the conscious and perni- telligence personnel is contrary to im-
publishers of the aforementioned cious effort to eliminate the effective- portant national interests.
Covert Action Information Bulletin or ness of U.S. intelligence operations. I have sponsored legislation which
Counter Spy. This approach makes Despite great technological advance- would also provide criminal penalties
eminently good sense and is consistent ments in information gathering by our for anyone who falsely identifies an
with the point made by Justice Oliver intelligence community, a very signifi- individual as an intelligence agent, and
Wendell Holmes (in the famous Espio-" cant portion of information collection I support the inclusion of this provi-
nage Act decision of 1919) that- relies upon live informants. sion. Enactment.of such a measure
The first amendment ? ? ? obviously was This human intelligence effort is in- would put a halt to the insidious ef-
not intended to give immunity for every creasingly threatened by the deliber- forts of anti-intelligence sources to dis-
possible use of language ? * ? the most ate disclosure of the identities of our mantle U.S. information gathering
stringent protection of free speech would undercover agents. Publication of the with the threat of exposure. Further, I
not protect a man in falsely shouting fire in names of these agents not only extin- believe that injunctive relief should be
a theater and causing a panic. guishes the . effectiveness of these
Also very relevant in this connection included in the bill to give the Attor-
Also but endangers- their lives as ney General power to take action to
action to
are the remarks of Zechariah Chafee, _well. . stop imminent publication of such
a leading defender of free speech Recently we have witnessed the identification.
during his 37' years at the Harvard gruesome illustration of the urgent
Law School and the uncle of the dis- need for criminal penalty for this type forts t I applaud
deal dal the sternly with with those their who
tinguished Senator from Rhode Island of disclosure. The most infamous ex- endanger who
who introduced the Senate version, S. ample was the identification in would ethe lives of those who
serve of this bill. In a book entitled "Counter Spy"-published by former in sensitive intelligence posi-
he
.391, ".Free Speech in the United States," CIA employee, Phillip Agee-40f Rich- lions, and urge the House to adopt the
the elder Chafee wrote that: and S. Welch as the station chief for measure.
The true boundary line of 'the. First the CIA"in Athens, Greece. Shortly Mt. McCLORY. Mr. Chairman, will
Amendment can be fixed only when Con- after this divulgence, Welch was assas- the gentleman yield to me?
gress and the courts realize that the princi- -sinated. The most recent example, was Mr. RUDD. I will be glad to yield.
ple on which speech is classified as lawful or Mr. McCLORY. Mr. Chairman, I
unlawful involves the balancing against the identification in 1980 by covert thank the gentleman for yielding.
each other of two very importarit social in- action information bulletin-another The gentleman as a former. FBI
?terests, in public safety. and in the search anti-intelligence publication initiated agent, I am sure, will be interested in
for truth. Every reasonable attempt should with Agee's assistance-of 15 CIA the fact that this legislation also
be made to maintain both interests unim- agents serving Marxist ' Jamaica.
? paired, and, the great interests in free Again, the disclosure precipitated a covers FBI agents who operate under.
speech should be sacrificed only when the machinegun attack on the home of cover when they are engaged in coon-
interest in public safety is really imperiled, the CIA station chief. terintelligence activities. It will secure
and not, as most men believe, when it is it is clear that without some legisla- their protection, as well as our CIA
elk conceivable that it may be slightly agents or other intelligence agents
ected. In war time, therefore, speech tive action to restrict these disclosures, who operate under cover overseas.
should be unrestricted by the censorship or agents will continue to be exposed to RUDD. I sure that as a-
by punishment, unless it is clearly liable to murder as a result of the actions of Mr. cause direct and dangerous interference those bent on total elimination of the tion is of great concern and gives a
with the conduct of the war. Thus.-our intelligence-gathering capacity of the great deal of delight to all the people
problem of locating the boundary.line of U.$. Government. engaged in intelligence activities. I
free where eis words ds will solved. ill It fixed close the Let there be no doubt that this is have sponsored legislation like this
point give rise to unlawful
h every year that I have been in Con-
f
t
suc
ors o
the aim . of the propoga
acts.
In sum, Mr. Chairman, what we publications and supporting organiza- gress. It has been a little more direct
have before us is practical, common- tions. In 1978, a national conference with regard to penalties and punish-
sense legislation that addresses a prob- was held by the campaign to stop gov- ment for violations of the law.
lem of paramount. national security ernment spying, where objectives were Again I want to applaud the commit-
importance while carefully insuring no 'a nxnounced to. continue worldwide pub- tee in their efforts to deal strictly with
genuine civil liberties are Infringed lication of intelligence information, those who would endanger the. lives of
upon. I, therefore, urge its immediate suits directed against government those who serve in sensitive intelli-
passage. It is the least we can do for agencies and private companies whose gence positions on behalf of the secu-
those .who literally put their lives on security departments - cooperate with rity of our Nation.
the line for us. law enforcemept' agencies and intelli-? Mr. Chairman, I urge the House to
Mr. McCLORY. Mr. Chairman, I gence agencies and to make use of the adopt the measure.
yield 3 minutes to the gentleman from. Freedom of Information Act for. Mr. MAZZOLI. Mr. Chairman, I
Arizona (Mr. RtUDD). forced disclosure of intelligence infor- . yield 2 minutes to the gentleman- from.
(Mr. RUDD asked and was given per- mation. New York (Mr. Wxrss).
mission to revise and extend his re- Our Nation's intelligence operations (Mr. WEISS asked and was given
marks.) enable us to provide countermeasures permission to revise and extend his re-
Mr. RUDD. Mr.', Chairman, I would to protect our people, and are thus an marks.)
like to express my deepest apprecia. integral part of our defense strategy. ?- Mr. WEISS. Mr. Chairman, I, want
tion to Chairman - MAZZOLr, to the . We must act decisively to protect our to thank the gentleman for yielding.
ranking minority member, the gentle- intelligence community from assault. I understand the very difficult job
man from Illinois (Mr. MCCLORY), and - and in this vein I am pleased with the that the committee had to assume.
to the chairman of the full committee, swift action of the House Committee They have seen something'that is very
the gentleman from Massachusetts in reporting this legislation; H.R. 4 . reprehensible and attempted to find
(Mr. BoLAND), and to the ranking mi contains provisions which would not an answer. Unfortunately because the
nority member (Mr. RoHIxsoN) and to limit prosecution to those individuals problem they are trying to correct is
all the members of the committee for having or having had direct or indirect so reprehensible, they have over-
) efforts they have made in order to access to classified information, but is stepped constitutional bounds.
this. carefully drawn to include anyone who The gentleman from Ohio says that
Mr. Chairman, I rise in support of deliberately exposes covert agents section 601(c) is the work product of
this bill for which the clear purpose as with the intent of destroying U.S. in- the ACLU. I want to say as one who
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September 23, 1981 CONGRESSIONAL RECORD - HOUSE
usually supports ACLU positions,
whether it is their work product, or
not, I oppose it.
The committee language allows an
incursion on first amendment rights in
section 601(c) which for the first time
in our history would have private citi-
zens prosecuted for disclosing informa-
tion already in the public domain.
That is such a horrendous step toward
violating the first amendment, that no
matter who thought of it, whether it
is the ACLU or the committee or
anyone else, we ought not to have any
part of It. I think if that section were
to be adopted, what happened at Wa-
tergate where the information of prior
CIA identification of some of the bur-
glars was disclosed could probably'be
prosecuted. If section 601(c) is adopt-
ed, you would have members of the
clergy who discovered that people,
within their denomination were CIA
agents prosecuted if they disclosed it,
even if they discovered it quite on
their own because it was a matter of
public information.
I think the thing to do is not to
make this sectionk even worse. The
thing to do is to strike it.
I think that. the gentleman from
Ohio gives the ACLU much more
credit than it deserves. Given what
Mr. Meese has had to say about the
ACLU, to suggest that the ACLU can
walk into the CIA headquarters . and
get them to agree to language which
should be adopted by the House of
Representatives- goes beyond the
realm of reasonable imagination.
I thank the gentleman for yielding
to me.
damage these unauthorized disclo-
sures have had on our human source
intelligence collection capabilities. Di-
rector William J. Casey, of Central In-
telligence, in testimony before the
Senate Judiciary Subcommittee on Se-
curity and Terrorism.in May testified
that-
These unauthorized disclosures have re-
sulted in untold damage, and, if not
stopped, will result in further damage to the
effectiveness of our intelligence apparatus.
and hence the nation itself.
This body's own Permanent Select
Committee on Intelligence in its
report on H.R. 4 attests to the utter
uselessness of these disclosures:
The unauthorized disclosure of the names
of undercover intelligence agents is a perni-
cious act that serves no useful informing
function whatsoever. It does not alert us to
abuses; It does not further civil liberties; it
does not enlighten public debate; and it does
not contribute one iota to the goal of an
educated and informed electorate.
The only purpose It serves is to dis-
rupt- our.legitimate intelligence collec-
tion programs. Effectively, such a
result benefits no one but our. adver-
saries.
Mr. Chairman, as a newspaper pub-
lisher and editor, I bring a special per-
spective to this debate. Opponents of
this legislation have been heard to say
that its enactment. will have a chilling
effect on first amendment rights, In
my opinion, neither the House nor the
Senate version of-this legislation con-
stitutes an assault upon the first
amendment. Indeed, the U.S. Supreme
Court in Haig against Agee found the
conduct proscribed by this legislation
to be "clearly not protected by the
Constitution." The Intelligence Identi-
ties Protection Act would not inhibit
public discussion and debate about
U.S. foreign policy or intelligence ac-
tivities, and would not operate to pre-
vent the exposure of illegal activities
or abuses of authority. Disclosures of
intelligence identities by persons who
have not had authorized access to
such information would be punishable
only under specified conditions, which
have been carefully crafted and nar-
rowly drawn. The act does not apply
to anyone not engaged in an effort or
a pattern of activities designed ? to
ferret out and expose intelligence per-
sonnel. It is instructive to look at all of
the elements of proof required in a
prosecution under subsection 601(c).
The Government would have to prove-
each of these elements beyond a rea-
sonable doubt.
Mr. Chairman, consideration of the
carefully and narrowly drawn prohibi-
without impairing civil
tional rights.
0 1145
Mr. MAZZOLI. I thank the gentle-
man for that statement.
Mr. McCLORY. Mr. Chairman, I
yield 2 minutes to the gentleman from
New York (Mr. WORTLEY).
Mr. WORTLEY. Mr. Chairman, I
rise in support of H. R. 4 the Intelli-
gence Identities Protection Act. I
strongly support enactment of legisla-
tion to provide criminal penalties for
the unauthorized disclosure of the
identities of those who engage or
assist in the foreign intelligence activi-
ties of this country. This Nation's in-
telligence apparatus is our firstline de-
fense. The national security of the
United States depends upon the
strength and vitality of that appara-
tus. This strength and vitality is being
sapped. The very lives of the individ-
uals involved in these activities on
behalf of the United States may be in
jeopardy as a result of the unauthor-
ized disclosure of the identities of our
intelligence officers, agents, and
sources. Legislation of this type is
critically important to deter and
punish .those who make it their busi-
ness to make such unauthorized dis-
closures.
This legislation Is long overdue. Ex-
tensive hearings before the House and
Senate Intelligence and Judiciary
Committees have documented the
Mr. Chairman, I urge passage of this
much needed legislation. '
Mr. McCLORY. Mr. Chairman, I
yield 21h minutes to the gentleman
from Virginia (Mr. WHITEHURST), a
member of the committee.
Mr. WHITEHURST. Mr. Chairman,
I rise in support of the Intelligence
Identities Protection Act, H.R. 4.
Mr. Chairman, each and every day
of the year some of the true patriots
of our country are at work, clandes-
tinely, throughout the world uncover-
ing information necessary to keep our
leaders informed of important world
events-before they happen. They
must toil under extremely difficult
conditions to produce in an extremely
difficult job. And, they do so often at
risk to their safety-indeed, their lives.
Unfortunately, there are a group of
miscreants who have taken it upon
themselves to greatly increase these
risks by exposing the identities of our
covert intelligence agents. V .
Mr. Chairman, what Is needed is leg-
islation designed to act with the preci-
sion of a highly skilled surgeon-to cut
out the malignant cells of Phillip Agee
and others of his ilk while leaving un-
touched the healthy activities of the
fourth estate. The bill reported by the
Intelligence Committee is up to the
task and that is why I have chosen to
support it. ,
H.R. 4 is a good piece of legislation
born of extensive committee hearings,
deliberations, and consultations with
the CIA and Department of Justice.
Both of these agencies believe H.R. 4
to be an effective measure.
H.R. 4 would make it a crime to
engage in an ongoing effort Intended
to impair U.S. intelligence activities
and to further that effort by disclos-
ing the identities of covert agents-
nothing more; nothing less.
This bill would in no way inhibit
free debate over the policies underly-
ing our foreign intelligence activities,
or over the activities themselves. H.R.
4 would not impose sanctions against
those who criticize the CIA, no matter
how unwisely. H.R. 4 simply is de-
signed to protect our covert intellig-
nece agents from having their identi- -
ties publicly brandished by those who
seek to destroy the` security of our
country.
A delicate balance has beeh struck in
this legislation, through long and
painstaking effort.
Mr. Chairman, the reservation of
constitutional guarantees has been
tion in the Intelligence Identities Pro- honored as we strove to reduce the
tection Act, in light of the clear and vulnerability of the lives of our intelli-
present danger to our Nation's intelli- gence officers, agents, and informers
gence capabilities resulting from unau- whose work is essential to the national
thorized disclosures of intelligence security.
identities, leads inescapably to one Mr. Chairman, for these reasons I
conclusion. The legislation we are con- urge support for H.R. 4.
sidering fulfills the urgent need to in- Mr. McCLORY. Mr. Chairman, I
crease our efforts to guard against yield myself the balance of my time.
damage to our crucial intelligence Mr. Chairman, I think the debate on
sources and methods of collection, this measure has been very illuminat-
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H 6518 CONGRESSIONAL RECORD - HOUSE September 23, 1981
ing. I am confident that there is over- (Mr. AsHBROOK) might argue at some Therefore, my plea to the member-
whelming support for the legislation. I point that the CIA prefers other lan- ship of this House is that they back
hope that the discussion of the provi- guage, it is indisputable that they say this bill as we have reported It. It is
ons of 601(c) will not distract us from this language, which is before the backed by the intelligence community.
ne intent of the committee or from House today, will do the job that they The CIA backs H.R. 4. Sure, it prefers
the intent of all who are supporting know has to be done. They have, and S. 391, and I guess the Attorney Gen-
this measure. their colleagues in the intelligence . eral of the United States prefers S.
I disagree with the amendment that community have, fought the good 391, because it would be easier to pros-
will be offered by my colleague, the fight and have been more patient than ecute under S. 391, and that Is the con-
gentleman from Ohio (Mr. ASHBROOK). they needed to be these years, waiting stitutional objection.
I think employing the word "intent" Is for some solace, and waiting for some Mr. Chairman, I would hope that
better, though the expression "reason relief, and this is the relief before us. the membership would follow the
to believe" is a valid one. I think They do want this bill, they do want leadership of the gentleman from
"reason to believe" relates more to the this kind' of relief. I think we can Kentucky (Mr. Mnzzom) and the gen-
subject of negligence than it does to a speed it to them and speed it to the tleman from-Illinois (Mr. MCCLORY),
criminal offense: I think that in a Nation U the House votes up this bill who spent so much time on this bill,
criminal statute suct;- as we have here as we see it before us today. - and defeat all the. amendments that
that we, should use the expression Mr. BOLAND. Mr. Chairman, will were offered to H.R. 4. and we can get
"intent." the geeleman yield? along with a bill which, when chal-
As far as the persons covered by Mr. MAZZOLI. I yield to the gentle- lenged in the courts, will be held con.
this, I think that all persons should be man from Massachusetts. stitutional.
covered. However, we are putting Mr. BOLAND. Mr. Chairman, I want Mr. HYDE. Mr. Chairman, I am
forth this legislation primarily to get to commend the gentleman from Ken-
at those who make a business of dis- tucky and the gentleman from Illinois pleased to rise in vigorous support of
closing the names and the identities of for their summation. H.R. 4, the Intelligence Identities Pro-
covert agents and who capitalize on I have just a couple of points before tection Act.
that and profit from it. And we cer.- we get into the amendment stage. The Committee on the judiciary, of
tainly want to end that promptly. As has been said here, this bill is a which I am a member; coTisiderett the
Now, I do .not think we should consensus reached not alone by meni- predecessor of H.R. 4 last year, follow-
exempt any particular category. Ref- hers of this committee, not alone by ing a sequential referral from the In-
erence has been made to the clergy. I members of the Judiciary Committee, telligence Committee, and favorably
have a great respect for the clergy and but by the intelligence community, by reported that bill by a stunning major-
other professions and activities. But toi the CIA, and also by some distin- ity. I would like to commend the mem-
exempt any particular individual gushed constitutional scholars whose bers of the Intelligence Committee for
merely because of the activity in opinion is that this particular bill, their hard work and thoughtful effort
which he or she happens to be en- H.R. 4, would pass constitutional in connection, with this bill in the last
gaged I think would be a distortion of muster. There is a serious ,question Congress and in this one. After careful
our whole concept of criminal law. among constitutional scholars as to consideration, I am convinced that a
I hope that we can keep our eye on whether or not S. 391, the Senate bill, compelling need has been shown for
he objective. of this legislation and with, the standard of reason to believe. legislation of this nature and I believe
pass it promptly and send it to the would pass that muster. that it is constitutional.
President. Therefore, I would hope that 'the What is the compelling need-the
- Mr. MAZZOLI. Mr. Chairman , I entire membership of the House, those clear and present danger-which this
yield myself. the remainder of my whose staffs are following this debate bill is intended to meet, Mr. Chair-
time. by saying I en- on television, would carry the message man? As my colleagues from the Intel-
I dorse a would ld just ust sum that up was just said en- to their Members that this particular ligence Committee have described so
rything by
the gentleman from Illinois. I believe bill, H.R. 4, is the bill that has reached eloquently, the dangers arising out of
that the House. would do a good serv- a consensus. these disclosures include demoraliza-
ice for the country and for the intelli- I am not sure that it is agreed to by tion within our intelligence agencies,
gence community were it to vote out the ACLU. I think probably Tsn discouragement of potential sources of
the bill exactly as it is before us today WEiss knows more about that than I information, and impairment of our
without any changing amendments. would, and his indication is that he national defense and foreign policy ef-
I have a lot of sympathy for the does not believe the ACLU backs this forts. We must be willing to protect
amendments that will be offered. We bill'. I am not sure it does Itself. our agents and their families with the
debated them carefully in the commit- Mr. WEISS. If the gentleman will most effective methods available to us
tee, as- the gentleman from Florida yield, I did not say that. I said the under the Constitution and I am
(Mr. YOUNG) said. These are offered by ACLU probably feels that if this does firmly. committed to that endeavor.
serious individuals who have the best not happen, something worse will. I Mr. Chairman, the first amendmer
interests of their Nation at heart, as am speaking for myself, saying it is too is not absolute-for any of us. No spe-
they view it. On a given day, under a bad they have accepted it. cial exception .is made for children
given set of circumstances, many of Mr. BOLAND. I accept the correc- who want to pray in public schools or
these could be supportable. But we tion. I think the ACLU would prefer for Members of Congress who want to
have before us a bill which has the this to S. 391. I am sure Morton Hal- give golden fleece awards. However,
input of all sides of the philosophical perin would- prefer H.R. 4 to S. 391, the danger that the bill addresses
spectrum and political spectrum. It the Senate bill. must be distinctly identified and com-
does indisputably help the CIA and But the fact of the matter is that pelling, and the means to combat it
the other intelligence communities some of the distinguished constitu- must be narrowly drawn and neces-
solve a very vexing problem, and that tional scholars, such as Philip-Kurland sary. These tests are best illustrated
is, how do you deal with publications of the University of Chicago Law by Justice Holmes' famous observation
who name names and, therefore, blow School, who specifically states that that no one has the right to yell "fire"
identities and destroy effectiveness of without this kind of specific intent in a crowded theater. By the same
our agents. standard, which is built into H.R. 4, token, Mr. Chairman, no one has the
While the gentleman from Ohio the bill would be unconstitutional. right to risk the lives of our agents
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and our national security by disclosing
the names of covert agents.
Mr. Chairman, after 2 years of work
by Members on both sides of the aisle,
this bill is so finely tuned and narrow-
ly drawn that the Government's
burden of proof Is substantial, as it
should, be. If the defendant has not
had authorized access to classified In-
formation. it must prove, beyond a
reasonable doubt, not only that the
defendant had a special state of mind,
but that the disclosure was made in
the course of an effort to identify and
expose covert agents. No prosecutions
for conspiracy. aiding and abetting, or
misprison of a felony are authorized
unless tho disclosure was part of an
effort. The Government's. public dis-
closure of the covert relationship is a
defense. Finally, the bill provides an
avenue for whistle blowers by exempt-
ing from prosecution communications
to congressional Intelligence commit-
tees.
Is this the least restrictive means
that we can use, Mr. Chairman, to get
at the evil we have identified? I believe
that it is. Our concern is with protect- ,
ing the identities of our agents-the
discloser's employment circumstances
are irrelevant. The damage done is the
same, whether the defendant had au-
thorized access to classified Informa-
tion, or not. There Is, and, or course,
there ought to be, ample room for free
and robust public debate on our intel-
ligence policies without injecting the
names of our covert agents into that
debate. This minimal limitation on
free speech and press is indeed proper
when compared to the overriding and
fundamental national interest to be
served-providing for the common de-
fense. -
Mr. Chairman, If any of my col-
leagues have lingering doubts about
the constitutionality of this bill, I
commend to their attention the recent
Supreme Court case of Haig against
Agee. The respondent In that case was
a notorious discloser of agent's names,
a fact which the court repeatedly em-
phasized in Its opinion. In rejecting
the argument that the first amend-
ment prevented the Secretary of State
from revoking his passport for these
activities, which created a serious
danger to our, national security, the
Court observed:
These disclosures, among other things,
have the declared purpose of obstructing in-
telligence operations and the recruiting of
intelligence personnel. They are clearly not
protected by the Constitution. The mere
fact that the respondent is also engaged in
criticism of the Government does not
render his conduct beyond the reach of the
law. -
Mr. Chairman, an enlightened edito-
rial, which appeared last. year in the
Washington Star, one of the few news-
papers able to see beyond its own
narrow self-interest on this issue, sug-
gested that:
Congress should do whatever is necessary.
taking due but not paralyzing heed of con-
stitutional scruples to protect our covert
? ? ? agents. Otherwise It would be well to
admit that we are too paralyzed by constitu-
tional scruples to conduct an effective for-
eign intelligence system in this dangerous
world, and stop asking- our people to risk
their lives In its service. We cannot have it
both ways.
Mr. Chairman, we cannot have it
both ways. I reject the absolutist ap-
proach to the first amendment which
has been advanced during the debate
on this type of legislation as a threat
to our national security, and ultimate-
ly, to all of our precious liberties- Last
year, we heard suggestions that an
effort to pass this legislation was
merely a hysterical reaction to attacks
upon our agents in Jamaica. Mr.
Chairman, let me emphasize to these
critics, 1 year later, that this is not an
emotional reaction. It Is a firm com-
mitment which some of us have made
to protecting the brave men and
women who serve us so well.
I urge' my colleagues to lend their
support to prompt passage of H.R. 4.
? Mr. FIELDS. Mr. Chairman, as a co-
sponsor of the Intelligence Agents
Identity Act of 1981. I support, the pas-
sage of H.R. 4 as a-means to strength-
en our national intelligence capability.
A crucial element of an effective na-
tional security policy is the ability to
collect and analyze high-quality intel-
ligence Information. The need for a so-
phisticated covert Intelligence infra-
structure becomes hzore critical as U.S.
interests abroad expand. Notwith-
standing the variety of technical com-
ponents used by the intelligence com-
munity, there remains a need to
employ traditional human resources.
Without the human element contrib-
uting to the intelligence system, the
United States would not have the
proper insight into the plans of for-
eign governments it confronts or inter-
national problems it must face. As the
United States seeks to improve its na-
tional security strategy, a network of
clandestine operators to carry out
covert activities in important situa-
tions is a fundamental prerequisite.
Further, the identities of these indi-
viduals must be protected for their
personal safety and to insure the
credibility of the entire operation.
Intelligence agents are faced with
the constant consequences of expo-
sure. Because espionage is a criminal
activity in many countries, our agents
must face the threat of expulsion or
imprisonment. Their safety is further
threatened by terrorist actions direct-
ed against them. -
Last year, on the Fourth of July, ter-
rorists opened fire on the home of
Richard Kinsman, a U.S. Embassy em-
ployee living in Kingston, Jamaica.
Bullets ripped through the bedroom
window of Kinsman's daughter. Fortu-
nately, no one was injured.
This attack came within 24 hours of
an announcement by Louis Wolfe of
the Covert Action Information Bulle-
tin. Wolfe had just disclosed the
names of 15 people he claimed to be
CIA agents. In addition, he revealed
their addresses, phone numbers, li-
cense plate numbers and the type of
car they owned..
Yet not all who are victims of igno-
ble crusaders such as Louis Wolfe are
as fortunate to survive. Richard
Welch, an attache at the American
Embassy in Athens, was gunned down
in 1975 while returning from a Christ-
mas party. This murder followed an
article in the Athens News tagging
Welch as a CIA station chief. The In-
formation in the News story had earli-
er been printed in Counterspy maga-
zine, published by ex-CIA employee
Phillip Agee. _
Like Wolfe, Agee has no qualms
about revealing the identities- of covert
U.S. agents. For Agee, these dis-
closures play a necessary role in his
ongoing struggle for socialism In the
United States.
U.S. intelligence officers are leading
the fight against terrorism on the in-
ternational front. To arbitrarily dis-
close the identities of these Individuals
serves to render American credibility
abroad worthless. These unauthorized
exposures result in a variety of conse-
quences including a loss of expertise in
the intelligence - field, erosion of
morale for the families of these offi-
cers, and a general deterioration in the
quality of U.S. foreign policy.
We as a nation can no longer toler-
ate this breach in national security.
Our responsibility is to the men and
women whose lives are jeopardized
daily in their struggle to protect free-
dom and democracy in the United
States. Regardless of the motivating
forces behind men like Phillip Agee,
the end result is a disruption in the le-
gitimate intelligence-gathering pro-
gram. No longer should these agents
be subjected to additional threats of
violence stemming from arbitrary dis-
closures. The very nature of their pro-
fession mandates a life of adversity
and perilous hazards. Individuals who
have served their country in this dan-
gerous and frequently fatal capacity
should be sheltered from the Misguid-
ed efforts of these ignoble crusaders.
Toward this end. I urge the adoption
of H.R. 4, which will criminalize the
disclosures of intelligence identities.
We must now take firm action to pro-
tect not only the integrity of these
agents but also to protect our national
security from further treasonous dis-
closures.o
? Mr. DERWINSKI. Mr. Chairman, I
support this legislation. We- have de-
layed far too long in providing a law,
first drafted almost 6 years ago, to
protect American citizens abroad from
attack and possible murder. I am re-
ferring, of course, to American intelli-
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- CONGRESSIONAL RECORD - HOUSE September 23, 1981
gence employees and agents-and
their families-who, it has been amply
den'lonstrated, quickly become the tar-
-Vets of terrorists when they are openly
Jentified by their fellow citizens. No
one in my opinion has the right to
mark a fellow citizen for murder.
It is claimed that part of this bill
may be unconstitutional. I do not
think so. In the first place. it is not
the compilation of previously pub-
lished information which would be
outlawed by this legislation, it is the
publicized conclusion that such data
demonstrates an intelligence connec-
tion. As a matter of fact, the bill
would not make it a crime to reveal in-
formation previously published by the
U.S. Government and, in any case, the
law would require that research by
itself would not be sufficient to con-
vict.
This publicized conclusion, It should
be 'remembered, could subject the
person so Identified, accurately or
falsely, to physical attack and could,
at least, negate the work he was sent
abroad by his Government to do. This
is the activity that this bill would
criminalize and only if there were
intent to "impede or impair" the intel-
ligence effort of the United States. No
right is absolute if lives are endan-
gered. This principle has been recog-
nized by the courts.
Even before the attack on the home
of the CIA chief of station in Kings-
ton, Jamaica, on July 4, 1980, Cord
Meyer, a former intelligence officer
himself, wrote of some of the dangers
inherent in the unchecked-open iden-
tification of our intelligence employ-
ees. In a newspaper column dated
June 7, 1980, Meyer described one of
the unfortunate results of the public
exposure of American intelligence per-
sonnel by the Covert Action Informa-
tion Bulletin:
(T)his ongoing exposure of CIA'officials
involves a massive hemorrhage that is far
more damaging than the. potential leakage
of operational details from an excessive
number of congressional committees. The
assassination of the CIA station chief in
Greece, Richard Welch, in 1975, shows how
tragic can be the consequences of the fin-
gering of CIA officials abroad .. .
But even if more assassinations do not
result from the continuing exposures that
the Bulletin plans to make in subsequent
issues, the damage done to the careers and
usefulness of those identified is irreparable.
Meyer pointed out:
For their own protection they can no
longer serve in many corners of the world
where terrorists flourish and many govern-
ments will no longer accept them as mem-
bers of American diplomatic missions once
they have been so openly Identified. -
The author stated, correctly, I be-
lieve-
The real loser Is the American public
whose security will steadily be eroded by
the loss of so much carefully trained talent
from the front lines of the long struggle
with the KGB and its allies.
Meyer concluded:
No other democratic country attempts to
conduct intelligence abroad with so little
protection for its career officers.
This legislation is something many
of us here have favored since the mid-
1970's after Richard Welch, CIA chief
of station, was murdered In Athens,
Greece. Meyer, in his column cited
above, had this to say:
Let us hope that we don't have to wait for
a replay of the Welch assassination to shock
the Congress and the administration into
making the legal and procedural reforms
that seem so obviously necessary.
This was written before the Kings-
ton attack where, fortunately, no one
was killed. That assault, nonetheless,
serves as a reminder of something
which has seemed "so obviously neces-
sary" for so long to so many of us. The
Congress should do the right thing
now and pass this bill.*
? Mr. MICHEL. Mr. Chairman, the
tragic murder of CIA agent Richard.
Welch in Athens in 1976 focused our
attention on the jeopardy that such
individuals are placed. in through
public identification.
Thus, in 1976 and again in 1977, I in-
troduced legislation to provide for the
personal safety of those persons en-
gaged in furthering the foreign intelli-
gence operations of the United States.
In introducing such legislation
during the 95th Congress, I said that
the problem was most urgent and that
we had to take positive actions to pro-
tect the lives of our agents.
I feel as strongly about this matter
now as I did then.
Our intelligence agents have become
the actual or potential victims of what
might be called literary hit men who
use a book or a magazine article to do
their dirty work. It could just as easily
be an assassins bullet, because the re-
sults are tragic.
These literary hit men have put the
lives of American intelligence officials
in jeopardy. Agent Welch died because
of such an exercise in irresponsibility.
I just want to say that I am glad. we
have this chance to protect those
whose work means so much to our na-
tional security.?
The CHAIRMAN. All time for gen-
eral debate has expired. Pursuant to
the rule, the Clerk will now read the
substitute committee amendment rec-
ornmended by the Permanent Select
Committee on Intelligence now print-
ed in the reported bill as an original
bill for the purposes of amendment.
No amendments are in order except
germane amendments printed in the
CONGRESSIONAL RECORD on or before
September 22, 1981.
The Clerk -read as follows:
H.R.4
America in Congress assembled, That this
Act may be cited as the "Intelligence Identi-
ties Protection Act".
SEC. 2. (a) The National Security Act of
1947 is amended by adding at the end there-
of the following new title:
"TITLE VI-PROTECTION OF CERTAIN
NATIONAL SECURITY INFORMATION
"DISCLOSURE. OF IDENTITIES OF CERTAIN UNITED
STATES UNDERCOVER INTELLIGENCE OFFICERS,
AGENTS, INFORMANTS, AND SOURCES
"SEC. 601. (a) Whoever, having or having
had authorized access to classified informa-
tion that identifies a covert agent, inten-
tionally discloses any information identify-
ing such covert agent to any individual not
authorized to receive classified information.
knowing that'the informatiVff disclosed so
identifies such covert agent and that the
United States is taking affirmative measures
to conceal such covert agent's intelligence
relationship to the United States, Shall be
fined not more than $50,000 or imprisoned
not more than ten years, or both.
"(b) Whoever, as a result of having au-
thorized access to classified information,
learns the identity of a covert agent and in.
tentionally. discloses any information identi-
fying such covert agent to any individual
not authorized to receive classified informa-
tion, knowing that the information dis-
closed so Identifies such covert agent and
that the United States is taking affirmative
measures to conceal such covert agent's in-
telligence relationship to the United States.
shall be fined not more than $25,000 or im-
prisoned not more than five years, or both.
"(c) Whoever, in the course of an effort to
identify and expose covert agents with the
intent to impair or impede the foreign intel-
ligence activities of the United States by the
fact of such identification or exposure, dis-
closes, to any individual not authorized to
receive classified information, any informa-
tion 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 con-
ceal such covert agent's intelligence rela-
tionship to the United States. shall be fined
not more than $15,000 or Imprisoned not
more than three years, or both.
"DEFENSES AND EXCEPTIONS
"SEC. 602. (a) It is a defense to a prosecu-
tion under section 601 that before the com-
mission of the offense with which the de-
fendant is charged, the United States had
publicly acknowledged or revealed the intel-
ligence relationship to the United States of
the individual the disclosure of whose intel-
ligence relationship to the United States is
the basis for the prosecntioif.
"(b)(1) Subject to paragraph (2), no
person other than a person committing an
offense under section 601 shall be subject to
prosecution under such section by virtue of
section 2 or 4 of title 18, United States Code,
or shall be subject to prosecution for con-
spiracy to commit an offense under such
section.. - .
- "(2) Paragraph (1) shall not apply (A) in
the case of a person who acted in the course
of an effort to identify and expose covert
agents with the intent to impair or Impede
the foreign intelligence activities of the
United States by the fact of such identifica-
tion and exposure, or (B) In the case of a
Be it enacted by the Senate and House of person who has authorized access to classi-
Representatives of the United States of fied information.
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"(c) It shall not be an offense under sec-
tion' 601 to transmit information described
In such section directly to the Select Com-
mittee on Intelligence of the Senate or to
the Permanent Select Committee on Intelli-
gence of the House of Representatives.
"PROCEDURES FOR ESTABLISHING COVER FOR
INTELLIGENCE OFFICERS AND EMPLOYEES
SEC. 603. (a) The President shall establish
procedures to ensure that any individual
who is an officer or employee of an intelli-
gence agency, 'or a member of the Armed
Forces assigned to duty with an intelligence
agency, whose identity as such an officer,
employee, or member is classified informa-
tion and which the United States takes af-
firmative measures to conceal Is afforded all
appropriate assistance to ensure that the
identity of such Individual as such an offi-
cer, employee, or member is effectively con-
cealed. Such procedures shall provide that
any department or agency designated by the
President for the purposes of this section
shall provide such assistance as may be de-
termined by the President to be necessary
in order to establish and effectively main-
tain the secrecy of the identity. of such'indi-
vidual as such an officer, employee, or
member.
"(b) Procedures established by the Presi-
dent pursuant to subsection (a) shall be
exempt from any requirement for publica-
tion or disclosure.
"EXTRATERRITORIAL JURISDICTION
"SEC. 604. There is jurisdiction over an of-
fense under section 601 committed outside
the United States if the individual commit-
ting the offense is a citizen of the United
States or an alien lawfully admitted to the
United States for, permanent residence (as
defined in section 101(a)(20) of the Immi-
gration and Nationality Act).
PROVIDING INFORMATION TO CONGRESS
"Sec. 605. Nothing in this title shall be
construed as authority to withhold Informa-
tion from Congress or from a committee of
either House of Congress.
"DEFINITIONS
"SEC. 606. For the purposes of this title:
"(1) The term 'classified information'
means information or material designated
and clearly marked or clearly represented,
pursuant to the provisions of a statute or
Executive order (or a regulation or order
issued pursuant to a statute or Executive
order), as requiring a specific degree of pro-
tection against unauthorized disclosure for
reasons of national security.
"(2) The term 'authorized', when used
with respect to access to classified informa-
tion, means having authority, right, or per-
mission pursuant to the provisions of a stat-
ute, Executlve'order, diredtive of the head
of any department of agency engaged in for-
eign Intelligence or counterintelligence ac-
tivities, order of a United States court, or
provisions of any Rule of the House of Rep-
resentatives or resolution of the Senate
which assigns responsibility within the re-
spective House o1 Congress for the oversight
of intelligence activities.
"(3) The term 'disclose' means to commu-
nicate, provide, impart, transmit, transfer,
convey, publish, or otherwise make availa-
ble.
"(4) The term 'covert agent' means-
"(A) an officer or employee of an intelli-
gence agency, or a member of the Armed
Forces assigned to duty with an intelligence
agency-
"(I) whose identity as such an officer, em-
ployee, or member is classified information,
and
"(ii) who,-is serving outside the United
States or has within the last five years
served outside the United States;
"(B) a United States citizen whose intelli-
gence relationship to- the United States is
classified Information and-
"(I) who resides and acts outside the
United States as an agent of. or informant
or source of operational assistance to, an in-
telligence agency, or
"(it) who is at the time of the disclosure
acting as an agent of, or informant to, the
foreign counterintelligence or foreign coun-
terterrorism components of the Federal
Bureau of Investigation; or
"(C) an individual, other than a United
States citizen, whose past or present intelli-
gence relationship to the United States is
classified and who is a present or former
agent of, or a present or former informant
or source of operational assistance to, an in-
telligence agency.
"(5) The term 'intelligence agency' means
the Central Intelligence Agency, the foreign
,intelligence comporlentsof the Department
of Defense, or the foreign counterintelli-
gence or foreign counterterrorist compo-
nents of the Federal Bureau of Investiga-
tion.
"(6) The term 'informant' means any indi-
vidual who furnishes information to an in-
telligence agency in the course of a confi-
dential relationship protecting the Identity
of such individual from public disclosure.
"(7) The terms 'officer' and 'employee'
have the meanings given such terms by sec-
tions 2104 and 2105. respectively, of title 5,
United States Code.
"(8) The term 'Armed Forces' means the
Army, Navy, Air Force, Marine Corps, and
Coast Guard.
"(9) The term "United States'. when used
in a geographic sense. means all areas under
the territorial sovereignty of the United
States and the Trust Territory of the Pacif-
ic Islands.".
(b) The table of contents at the beginning
of such Act is amended by adding at the end
thereof the following:
"TITLE VI-PROTECTION - OF CERTAIN
NATIONAL SECURITY INFORMATION
"Sec. 601. Disclosure of identities of certain
United States undercover intelligence
officers, agents, informants, and
sources.
"Sec. 602. Defenses and exceptions.
"Sec. 603. Procedures for establishing cover
for intelligence officers and employ-
ees.
"Sec. 604. Extraterritorial jurisdiction.
"Sec. 605. Providing information to Con-
gress.
"Sec. 606. Definitions.".
Mr. MAZZOLI (during the reading).
Mr. Chairman, I ask unanimous con-
sent that the committee amendment
in the nature of a substitute be consid-
ered as read, printed in the RECORD,
and open to amendment at any point.
The CHAIRMAN. Is there objection
to the request of the gentleman from
Kentucky?
There was no objection.
H 6521
AMENDMENT OFFERED BY MR. ASHBROOK
Mr. ASHBROOK. Mr. Chairman, I
offer an amendment which has been
printed in the RECORD in accordance
with the rule.
The Clerk read as follows:
Amendment offered by Mr. ASHBROOK:
Page 3, strike out lines 11 through 21 and
insert in lieu thereof the following:
"(c) Whoever, in the course of a pattern of
activitiee intended to identify and expose
covert agents and with reason to believe
that such activities would impair or impede
the foreign intelligence activities of the
United States, discloses any information
that identifies an individual as a, covert
agent to any individual not authorized to re-
ceive classified information, knowing that
the information disclosed so identifies such
individual and that the United States Is
taking affirmative measures to conceal such
individual's classified intelligence relation-
ship to the United States, shall be fined not
more than $15,000 or imprisoned not more
than three years, or both."
Mr. ASHBROOK. Mr. Chairman, I
rise in strong support of this amend-
ment.
But before I present the arguments
for this amendment, let me comment
on the statement of our very fine
chairman, the very distinguished gen-
tleman from Massachusetts - (Mr.
BOI.AND). If there were any doubt
where the ACLU stands, I would be
glad to share with him their draft
memo on our bill and Senate 391. As a
matter of fact, I am inclined to think
Mr. Berman and Mr. Halperin could
almost serve on the Rules Committee.
They have it all figured out. They go
through the whole scenarios.
There game plan scenarios states
"When the Senate Judiciary Commit-
tee considers the Legislation on Sep-
tember 15, a motion will be made to
substitute the House language." Think
of that. Their impertinence In trying
to coordinate the legislative process.
They know exactly what they are
doing. They have it all 1n course-A,
B. C, D, and E. I guess this is part E of
A, B, C, D. and E of their legislative
scenario. They have known what they
have been doing all along.
The only addition I would make
under revisions as to his remarks-
maybe our chairman would like to add
that language-he said this bill r-
-fleets the input of many people. But
what the gentleman forgot to mention
is that it also has the input of the
people who are against not only this
bill but would scuttle our intelligence
activities. It reflects their input, too.
And that is precisely what we are
trying to throw out by the passage of
my amendment.
My amendment is favored by Presi-
dent Reagan. My amendment Is fa-
vored by the CIA. My.amendment is
favored by the Justice Department. I
make those categorical statements
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CONGRESSIONAL RECORD - HOUSE September 23, 1981
Sure, they will accept, can live with,
and will work for the language in H.R.
4 as amended. But they prefer and
`avor the language of the Senate bill
nd my amendment. That is the cru-
cial point.
^ 1200
The amendment that was just read
substitutes the exact Senate language
of S. 391 for the compromise language
of the House Intelligence Committee
report. During the hearings of the
House Permanent Select Committee
on Intelligence on April 7 of this year,
Richard Willard, counsel for the At-
torney General-counsel for Intelli-
gence eolicy, I might add-speaking on
behalf of the Justice Department said
that both House and Senate versions
of the bill-"would pass muster in
terms of both due process and first
amendment constitutionality."
Mr. ASHBROOK. I will be glad to ment, the Justice Department on the
yield.- basis of their statement. My colleague
Mr. McCLORY. I thank the gentle- is not going to try and dilute that.
man for yielding. I would not want to They will accept, what he is talking
concur in the gentleman's state- about, but they prefer this language.
ment--- Mr. McCLORY. If the gentleman
Mr. ASHBROOK. I understand that. will yield further, I do question that,
Mr. McCLORY. As I understand it, and I do question the Senate language.
the only communication _I have seen Frankly, from my study of it-and I
from the White House is a letter- made an extensive study of it-I think
Mr. ASHBROOK. Signed - by the 'the'House language Is preferable, and
President. I tried to find some deficiency in it, or
Mr. McCLORY. Directed to a some loophole. I have not found one.
Member of the Senate in which they for there is not one there.
expressed support for the Senate Ian- Mr. ASHBROOK. Let me recapture
guage. my time, and I will show the gentle-
Mr. ASHBROOK. Right. man the first deficiency. Mr. Willard,
Mr. McCLORY."And without amend- in supporting the Senate language,
ment. But, there was no comparison. I said:
will say quite forthrightly to the gen- The specific intent requirement can serve
tleman that I have conferred by tele- to confuse the issues in an actual prosecu-
phone both with the White House and tion to the point where the Government
with the Deputy Attorney General, could be unable to establish the requisite
Now the hearing of whether or not and I find no expression there with
the Senate language and the language regard to preference for the Senate
I have in this amendment would pass language over our language. As a
constitutional muster has been drawn matter of fact, they are in support of
across this body time and time again, our legislation and our language, and
but the Attorney General believes it Is whatever is resolved in the conference
constitutional. Let me point out some- I think they are going to be satisfied
thing most interesting. For those of with. They are anxious for prompt en-
you on the other side; the Carter Jus- actment of the legislation.
tice Department thought it was consti- I thank the gentleman for yielding.
tutional. The former administration Mr. ASHBROOK. My colleague Is
on the record before our committee of absolutely right, and his last state-
saying that the language of my ment that they do want prompt enact-
amendment and S. 391 is constitution- ment of this language, but he has got
al and, however, they preferred it. So, the letter signed by the President of
I am not springing something on you the United States in front of him. How
out of the well of this House. can he stand before this body and say
Last year, in the House Intelligence that he does not? It Is right over
Committee bill, the language that I there, and I assume the gentleman has
am now offering as a substitute was it.
supported-by your President, your ad- The CHAIRMAN. The time of the
ministration, your Attorney General. gentleman from Ohio has expired.
Ask yourselves, what has changed in (By unanimous consent, Mr. AsH-
the meantime? Certainly we do not BROOK was allowed to proceed for 3 ad-
have a more liberal President in the ditional minutes.)
White House. That is not what has Mr. ASHBROOK. The language is
happened. What has happened is ex- very clear. The President says he pre-
actly what I said; as a part of passing- fers Senate 391. Is there any doubt?
this bill we allowed outside groups to He signed the letter. It is from the
have too much input. I am very un- White House. The Attorney General is
happy at my own CIA Director, Mr. on record as favoring the same thing.
Casey. Why in the world he let those Mr. McCLORY. If the gentleman
two men even come to Langley to talk will, yield further, I do not think the
over compromise language with the at- letter that I have seen says that he
torneys at the CIA-I look upon that prefers S. 391 over H.R. 4. What he
as darn near a security breach. Why in says is, he prefers S. 391, without
the world they made those-concessions amendment over some other variation,
I will never know. ? but it is not a variation which might
. Let us be honest about it; the Carter be in the House bill.
administration, the Reagan. adminis- Mr. ASHBROOK. My friend has
tration, the CIA, the President, every- been around here. He knows exactly
one, the former agents, everyone who what they are talking about Is the lan-
knows anything about this prefers the guage of this amendment. The testi-
Senate language and the language of mony which I will go on to- read, the
this amendment. I say that without testimony all. talks about this- Ian-
contradiction. - guage. We know that. Let us not
Mr. Willard went on to support the
Senate language rather than H.R. 4.
Mr. McCLORY. Mr. Chairman, will
the gentleman yield?
I would say that is about as specific
objection to the language that the
gentleman is now wrapping himself
around as anyone could make. The
specific intent requirement can serve
to confuse the issues in an actual pros-
ecution.
That by the chief officer who is
going to make the prosecution under
either H.R. 4 or S. 391, or a compro-
mise version of both. What could be
more specific than the chief law en-
forcement officer of the United States
saying the gentleman's language could
confuse the issues in an actual pros-
ecution to the point where the Gov-
ernment could be unable to prove the
requisite intent? I agree with him 100
percent, and that Is why I support this
language. -
Mr. YOUNG of Florida. Mr. Chair-
man, will the gentleman yield?
Mr. ASHBROOK. I yield to the gen-
tleman from Florida.
Mr. YOUNG of Florida. Mr. Chair-
man, I think it would be helpful to all
of us to have this letter from the
President, at least one paragraph, read
so that we all know what it is. In this
letter dated September 14, 1981
Mr. ASHBROOK. Fairly recent.
Mr. YOUNG of Florida. President
Reagan signed, it says in the third
paragraph:
Attorney General Smith advises.that the
Senate version of this legislation, S. 391, is
legally sound, both from a prosecution per-
spective and in the protection it provides for
constitutional rights of innocent Americans.
Any change to the Senate version would
have the effect of altering this carefully
crafted balance.
Mr. ASHBROOK. And we are also
talking about a change in H.R. 4. We
are talking about a change; let me
preferred again by President Reagan istrtion wanted, what the Carter At-
on the basis of the letter he signed, torney General wanted, what the CIA
the CIA on the basis of their state- wants, what the Attorney General of
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September 23, 1981 CONGRESSIONAL RECORD - HOUSE
the United States now wants, and
what the President of the United
States wants.
On that I rest my case, and I yield,
back the balance of my time.
Mr. MAZZOLI. Mr. Chairman, I rise
in opposition to the amendment.
Mr. Chairman, first let me, empha-
size to the Members of the Congress
who are here in the House, today, and
those who are monitoring activities,
that the amendment we will vote on at',
some point, that has been offered by
the gentleman from Ohio, is a very im-
portant amendment. It may well de-
termine the general tenor of the rest
of the day toward this bill, so I would
hope that they would monitdr this
particular part with some care.
Let me suggest a few things. One is
that I do oppose the gentleman's
amendment. I am sure it is offered, as
all of his amendments are, in good
faith, and backed up by significant
study, but.-it was considered by our
committee. We were aware of the ex-
istence of the Senate bill with its dif-
ferent standard, a negligence stand-
ard-"reason to believe" that some-
thing might result in injury to United
States intelligence activities. But,
having full knowledge of that, the
committee, I believe with just one nay,
voted in favor of the bill before the
House today.
The gentleman from Ohio suggests
that various administrations, including
the last one, supported the Senate ver-
sion. I would like to quote the former
General Counsel of the Central Intel-
ligence Agency, who, in connection
with the hearings we had, said: -
It is from my point of view as a lawyer
clear to me that without a specific intent
element-
I might parenthetically say that spe-
cific intent element is in the bill 11,
before us today. He goes on--
That without a specific intent element,
statute that applied to someone who dealt
only with unclassified information and phe-
nomena would have serious constitutional
problems. But this bill which your commit-
tee has very carefully drawn avoids those
problems.
Mr. Silver was referring to the HR.
4 of the last Congress, which had a
double intent standard, so I - would
think this statement of his referring
to today's version would certainly
apply.
Mr. ASHBROOK. Mr. Chairman,
will my colleague yield?
Mr. MAZZOLL I will. be happy to
yield.
Mr. ASHBROOK. Is it not histori-
cally correct to say that. we had a
unanimous report of the entire House
Select Committee on Intelligence on
H.R. 5615 last year? -
Mr. MAZZOLI. Yes.
Mr. ASHBROOK. And the language
that was in H.R. 5615 in 1980, which
we unanimously supported, is the lan-
guage which we had before these-
amendments were offered, and
changed H.R. 4. Is that not correct?
Mr. MAZZOLI. It is, and I would
also suggest to the gentleman it has a
specific intent standard which the
gentleman himself supported last
year, and I think the evidence was
very clear that it, and H.R. 4 today,
would solve the problem that was con-
fronting the Intelligence Agencies;
that is, their inability through the De-
partment of Justice, to sanction those
who in their own misguided way want
to "name names." The specific intent
standard does solve that problem. The
gentleman supported it last year. He, I
am sure in good faith, cannot support
it this year.
Mr. ASHBROOK. Is it not the
adding of the phrase, "by the fact of
such Identification," that changed the
language of H.R. 4?
Mr. MAZZOLI. Well,'I would answer
the gentleman, it does not change the
question of specific intent. We still
have to prove in the bill before the
House today, H.R. 4. an effort to iden-
tify and expose covert agents with the
intent to impair or impede the foreign
intelligence activities of the United
States. We have simply added "by the
fact of. such identification and expo-
sure."
Mr. ASHBROOK. Will the gentle-
man yield further?
Mr. MAZZOLI. Certainly.
Mr. ASHBROOK. In listehing to
what my colleague said, maybe we are
in agreement. Maybe he agrees that
the words, "by the fact of such identi-
fication," do not necessarily belong in
H. R. 4, and we can get along without
it.
Mr. MAZZOLI. I did not say that. I
suggested it does not alter the specific
intent. I thank the, gentleman for his
comments. -
Before yielding to our chairman, I
would also further quote from a
former General Counsel of the Cen-
tral Intelligence Agency from this
year, where he referred to an earlier
version of the bill. The same gentle-
man, who was at that time still Gener-
al Counsel, said on September 20 of
this year.
I have personally a great deal of optimism
that a prosecution could be carried forward
successfully under either version of the bill.
The CHAIRMAN. The time of the
gentleman from Kentucky has ex-
pired.
(By unanimous consent, Mr. MAzzoLI
was allowed to proceed for 5 additional
minutes.)
Mr. BOLAND. Mr. Chairman, will
the gentleman yield?'
Mr. MAZZOLI. I yield to the gentle-
man from Massachusetts.
Mr. BOLAND. Mr. Chairman, let me
emphasize again that I would hope the
Members of the House, those who are
present here and those who are moni-
toring this on television, would keep
their eyes on the ball. The bottom line
is with respect to H.R. 4, that this is a
bill which was reached after a consen-
sus with a number of Members and
committees on the House side, and
also with the Intelligence community
and with the people downtown.
H 6523
As the gentleman from Ohio states,
the Senate bill, S. 391, may be pre-
ferred by some to H.R. 4. We under-
stand that. But, the problem I think
that we have before us is whether or
not we are going to get a bill which is
going to pass constitutional muster. As
the gentleman from Ohio has said-
and he says it correctly-indeed last
year H.R. 5615, that bill was not going
to be taken up by the Senate.'So. ,we
had no opportunity at all to get any
bill by last year.
I am sure that if we were in the
same position this year, we would have
the same difficulty, but we are not in
the same position because we have
reached a consensus here, a consensus
which clearly indicates to all of us who
support this bill-and we have spent,
as the gentleman from Ohio knows,
2' years on it, as has the Senate-I
would think the constitutional lawyers
on our committee have a right to their
-own opinion on whether or not our bill
can stand constitutional muster better
than the Senate version. That was the
opinion of the members of our com-
mittee.
Again let me state that we had no
opportunity to pass a bill last year be-
cause the Senate was not going to take
up their bill, S. 191, even though H.R.
5615, our bill, was ready to go to the
House floor. We had no opportunity to
pass a bill last year, and here we are,
arrived at that point in time where we
can get a bill by; and not only do the
members of this subcommittee believe,
the members of the full committee.
but it is the belief of the CIA, the In-
telligence Committee, that this bill is a
bill of the highest priority.,
01215
Well, if it is, we ought to get on with
the business of passing this bill to
which they have no objection. The ad-
ministration prefers the Senate bill, as
the gentleman from Ohio said, and
probably the past administration pre-
ferred the Senate bill. But we are
faced with the problem of whether or
not we are going to get a bill by in this
session of the Congress that is going
to be tested in the courts and where
the constitutionality of the bill will be
sustained.
Mr. Chairman, I think we ought not
to lose sight of that. We ought to keep
our eye on the ball, and I plead with
the. Members of the House to remem-
ber that when we vote on this amend-
ment.
Mr. MAZZOLI. Mr. Chairman, let
me reclaim my time:
I believe I heard the gentleman from
Illinois (Mr. McCLOaY), the ranking
minority member-of our subcommit-
tee, indicate in the colloquy with the
gentleman from Ohio that as early or
as recently as today that the gentle-
man spoke with the Deputy Attorney
General who indicated, I believe, if I
understood the gentleman correctly,
that there is at this point today no
preference expressed by the Depart-
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CONGRESSIONAL RECORD - HOUSE September 2,1, 1981
ment of Justice between the gentle-
man's approach, which is a "reason to
believe," and our approach, which Is
-,cific intent. I would yield to the
;tleman for a clarification of that.
Mr. McCLORY._ _ Mr. Chairman, I
thank thf gentleman for yielding, and
I will state that it is my understand-
ing, that the Attorney General sup-
ports the bill .that we have before us
nods, the language that we have before
us. Insofar as resolving differences be-
tween our language and that in the
Senate -bill, the Attorney General
seems satisfied to have it worked out
by us in conference.
I might say that I do not agree with
the gentleman from Massachusetts
(Mr. BOLAND) as to the language which
we had in the bill in the last Congress.
I think we had the intent language In
the bill in the last Congress. I am per-
sonally strongly in support of requir-
ing that the element of intent should
be contained in the bill, and that such
an intent must be proved.
I think that intent is an appropriate
part of a criminal. statute. The lan-
guage, "reason to believe,' I under-
stand to imply negligence, and this Is
not a negligence-type statute.
Mr. MAZZOLI. Mr. Chairman, I
would like to- yield to the gentleman
from Massachusetts (Mr. BOLAND),
who, I am sure, has something to add.
Mr. BOLAND. Mr. Chairman, I
thank the gentleman for yielding.
. The gentleman from Illinois (Mr.
MCCLORY) states It correctly, and he is
'ght. The point I want to make, the
~portant point I want to make is that
the Senate was not about to take up
any legislation last year in this area,
and that is what we were faced with.
So I would hope the Members would
keep that in. mind when we vote on
this amendment.
The' CHAIRMAN. The time of the
gentleman from Kentucky (Mr.. MAZ-
zoLi) has expired. .
(On request of Mr. AsssRooK, and
by unanimous consent, Mr. MAZZOLI
was allowed to proceed for 3 additional
-minutes.) - ..
Mr. ASHBROOK. Mr. Chairman,
will the gentleman yield? .
. Mr. MAZZOLI. Mr. Chairman, I will
yield to the gentleman shortly, but if I
could have just a few seconds, I~sug-
gest-and really I think the gentleman
from Massachusetts (Mr. BOLAND) has
said It earlier-that we have got to
keep our eye on the ball. The gentle-
man from Kentucky really believes
the "ball" to be the Central. Intelli-
gence Agency and all components -of
the intelligence community, and we
had it clearly set forth in testimony
this year when the bill was before us
that with the language, "specific
intent," it would serve their purpose of
protecting their people abroad.
Mr. ASHBROOK. Mr. Chairman,
will the gentleman yield?
Mr. MAZZOLI. I yield to the gentle-
.an from Ohio.
Mr. ASHBROOKK. Mr. Chairman, I
thank the gentleman for yielding.
Again I want to set the record
straight, particularly as far as the
statement of the gentleman from Illi-
nois (Mr. MCCLORY) is concerned. I
laid in the RECORD specific statements
made in the past week or 2 weeks,
statements in black and white by the
President and the Attorney General__
My friend, the gentleman- from Illi-
nois, is now talking about a telephone
call to an undisclosed person who said
something to him that now givestlim
an understanding of their position.
Note that, just an understanding.
What understanding?
Let me ask the oMembers of this
body which statements they want to
put the most confidence in. What
some undisclosed spokesman said in a
telephone call that my friend from II-
linols, a very honorable gentleman, in-
terprets for us but is not in black and
white or what I put in the REcoRD in
black and white very openly and can-
didly.
Second, let` me address something
my good friend, the committee chair-
man, said, but let me first lay on the
record my admiration for the gentle-
man from Massachusetts (Mr.
BOLAND). I think one of the finest
things the Speaker of this House did
when this Select Committee on Intelli-
gence- was established was selecting a
gentleman, a legislator, and a patriot
like the gentleman from Massachu-
setts, Mr. EDDIE BOLAND, as the chair-
man, and I will back down to no one in
my admiration for him. But one thing
I think my good friend has over-
looked-and I say this with a wistful
feeling-is that one of the problems in
this country when we talk to the
people Is the literal takeover of law-
making by the Supreme Court. Time
and time again we hear people com-
plain about the Supreme Court and
the Federal judiciary.
Every court decision has Indicated
that the Congress of the United States
Is a valid part of the lawmaking pur-
poses, indeed constitutional determi-
nations. The determination of this
body of a constitutional issue carries
weight with the Supreme Court, and
we should not back down simply be-
cause some lawyer or some scholar
from Chicago says this might not be
constitutional. We have the right on
the record to say that we believe our
actions are constitutional.
Past courts of all administrations
have given high priority to what we in
this Chamber determine to be consti-
tutional, and we should not allow our-
selves to be scared on this issue. As a
matter of fact, we ought -to reassert
ourselves.
I happen to think this is an area
where we should tell the court that we
happen to believe this is constitution-
al, we put it in front of you, we believe
you should agree with us, and we be-
lieve you will. So let us not allow that
fear of a constitutional test to prevent
us as legislators from doing what we
think is right. Let us perform our
duties as a coequal branch of Govern-
ment.
The CHAIRMAN. The time of the
gentleman from Kentucky (Mr. MAZ-
ZOLI) has again expired.
1By unanimous consent, Mr. MAZZOLI
was allowed to proceed for 3 additional
minutes.)
Mr. MAZZOLI. Mr. Chairman, I
have asked for permission to proceed
for 3 additional minutes since I did
yield to several Members in order tQ
help them make continuous state-
ments, and I will not ask.for any fur-
ther time.
Let me- just briefly speak to a couple
of points. One is that I agree with the
gentleman from Ohio (Mr. AslisROOK).
I am never one to be stampeded or dis-
posed to act simply because someone
tells me something is unconstitutional.
If I had proceeded without interrup-
tion, I would never have mentioned
the word "constitutionality." My op-
position to the amendment is not
based alone on the question of consti-
tutionality. That is something that we
have to take a stand on and let the
chips fall where they may.
My observation Is based on state-
ments that we had last year. I men-
tioned the Central Intelligence Agen-
cy's General Counsel, and I would
quote the statement from the Deputy
Director of. the CIA in last year's
emergency measure:
Finally, a statute which requires proof
that unauthorized disclosures by those who
have not had an employment or other rela-
tionship of trust with the United States-
And this is the area we are talking
about, section 601(c)-
were made with specific intent to impair or
impede the Nation's foreign intelligence ac-
tivities, this requirement would be for the
protection of those who might claim they
had made a public disclosure for this legiti-
mate purpose, although I believe Congress
did determine if there-are any specific pur-
poses and made a provision for them.
So last year the Deputy Director was
in favor of a specific intent standard.
I would simply say again, to use our
chairman's very apt description, let us
keep our eye on what we are really
trying to do here. We are trying to
pass a bill, first and foremost. We are
trying to pass a bill which solves a
problem; and the problem has been de-
lineated. That is the reprehensible and
heinous . crime - of divulging informa-
tion on people who were posted Under
cover. We want to do it in an effective,
efficient, and, hopefully. trim and
legal way. .
I think that what we have before
the House has done specifically that.
It. has recognized the problem, and we
have moved to answer the problem
with tools which had the broad sup-
port and so-called consensus that any
bill has to have in order to pass. We
need not require only constitutional
muster, but we also must pass this
through the Congress for' it to become
a bill which the President signs.
Mr. Chairman, I strongly urge my
friends in the Chamber and those who
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September 23, 1981 CONGRESSIONAL RECORD -HOUSE H 6525
are monitoring the proceedings with would make any such disclosures in- The CHAIRMAN. The time of the
respect to the amendment offered by tentionally and who would intend to gentleman from Illinois (Mr.
my friend, the- gentleman from Ohio impair or impede our intelligence ac- McCLORY) has expired.
()vSr. Asxsxoox), who is a very valua- tivities in that manner. ? (By unanimous consent, Mr.
ble member of this committee, to I think the language we have here is McCroxY was allowed to proceed for 3
oppose his amendment. preferable, .from the way I have stud- additional minutes.)
Mr. McCLORY. )Vir. Chairman. I fed it, and I believe that sincerely. I Mr. McCLORY. Mr. Chairman, first
move to strike the requisite number of believe that in the last analysis the of all, I want to say that, with regard
words, and I rise in opposition to the conference will decide that this is the to the pattern of activities language, I
,amendment. best and the Attorney General's office was actively involved in opposing that
(Mr. McCLORY asked and was given will decide it is the best and the intelli- language because it could requ~e
permission to revise and extend his re- Bence agenMes will decide it is the proof of repeated discloa~re~. I feel
marks.) best.?But at this moment that is,the. that a person.should be subject to,the
Mr. McCLORY. Mr. Chairman, I decision we have to make. penalties of this statute i1 they dis-
think it is extremely awkward, may I ~.. Chairman, we have heard exten- closed one name-even ii they do it
say, to oppose an amendment offered save debate on this amendment. I have just once. IL should not have to be a
by a distinguished and respected col- tried to debate it directly and meet the pattern. The bill should require just
league, and I do not intend to get into challenges forthrightly. and I think one disclosure, as far as I am con-
any spirited debate. with him or to that we have the good will of all con- cerned, and then it should be pun-
make any charge or to respond aggres- cerned the way , it is. So I hope Lhe fished. ._
lively to any countercharges. amendment is ?defeated. If we leave the language "pattern of
I do want to say that insofar as I-Can ~,. ASHBROOK. Mr. Chairman, activities" in there. we are going to
tell from a letter which he has from will the gentleman yield? have to prove a series of or a pattern
the President of the United States ad- ~. McCLORY. I yield to the gentle- of this type o! activity, and I think
dressed to a single Member of the that should not be in the bill.
Senate, it snakes no reference to H.R. .man from Ohio. Let me just state this further: The
4 and it makes no comparison between Mr. ASHBROOK. Mr. Chairman, I amendment offered by the gentleman
the Senate bill and the bill .that we agree with my friend 100 percent. In from Ohio (Mr. ASm3ROOX) would
have before us now. Lhe areas of difference that the gentle- force the Government to make public
May I state publicly that when a rec- man and I have had over the Years. at the trial morg classified informa-
ommendation comes from the ACLU. I our differences have been very, very tion than is currently required by the
regard it with high suspicion. I am narrow, and this is one of the very language which we have. The amend-
just automatically opposed to some- few. ment would create this problem be-
thing that that organization- might My colleague raised. a question for cause it changes the focus of the bill
recommend for us to act upon. So, Lhe the record, and I think the record from what Lhe defendant intended to
fact that the statement has been made ought to have the other side of it. Ile what he had reason to believe.
that some language here originated raised the question that Lhe reason to As to the "reason to believe" stand-
with the ACLU causes. me to question believe standard is equivalent to a neg-' ard, it becomes relevant as to what
the language which is there. ligence standard. It is the opposite. I effect the disclosure had or would
I have tested this language; .I have think the record .ought to show that, have on our intelligence activities.
challenged it; and I have looked for and I am not continuing with the idea This "results test" necessarily forces
some hidden meaning that might be of engaging in heated debate. the Government to reveal what the
there that is not disclosed on the sur- I think it is not equivalent. If you agent whose cover 'was blown was
face. I have not been able to detect it. examine all the elements of proof re- doing in the .country where $e had
I have subjected it to scrutiny by quired under subsection 601(c), it is been assigned, and what his replace-
counsel, and we have not been able to clear that reason to believe does- not ment is doing there now. However,
detect any hidden, uncertain meaning mean that a negligent disclosure of an this information would not have to be
there that might protect any person identity would be a criminal offense. released, because it would be Irrele-
who would deliberately or intentional- Second, the individual making the vant, under this bill as reported.. .
ly disclose the name of a covert agent, disclosure must know that the infor- , -.. -..
thus jeopardizing his mission or im- oration he discloses does in fact identi- " ._ - ~ .. ^ 1230 _
peding or impairing his intelligence ac- fy a covert agent. .And, last year's "graymail ?bill"
tivities. ~ The person making the disclosure would not solve this problem because
So the language which I have seen must also know that the United States that law only protects irrelevant infor-
and discussed as a representative of ` is taking affirmative measures to con- oration from disclosure at the trial.
the committee with members of the Ceal a covert agent's classified intelli-
Committee ~ on the- Judiciary and I think we have a good, sound bill
which has been worked out and which Bence affiliation. Moreover, the disclo- here, and I hope it can be enacted in
has enabled us to avoid sequential ref- sure must be in the course of a pattern the form as presented by the commit-
erence to the Judiciary Committee- is of activities intended to identify and ~, ~ ~ , ?.::
language which I believe is constitu- expose covert agents. Those are the Mr. FOWLER. Mr. Chairman, I
tional and which will carry out the ob- unportant words, in my opinion.. move to strike the requisite number of
jectives of this legislation Pand which Finally, the person making the dis- words and rise to speak against -the
will enable us to move forward to closure must have "reason to believe" amendment. '.
punish those who disclose. the names that his activities would impair or I take the floor not to prolong this
of covert agents who operate in behalf .impede foreign intelligence- activities .debate but I want to rise to support
of our intelligence agencfes, and I be- -~ the United States. ~ . _=:' ..the opposition of the gentleman from
lieve that.wewill provide: for the quick A11 of these elements must be . Illinois (Mr. McCtoRY), to this amend-
and prompt punishment of persons Proved. An individual making an unau- _ment and to try to point out some spe-
who violate ~ the provisions of this thorized disclosure under these cir- cifics that I think have been over-
measure: ? ~ - ? .. _ cumstances can hardly claim negli- looked in this debate. -
I do not. think anybody should be Bence. - =: _ I frankly do not see the relevance of
exempted or that anybody should be I would say that, Mr. Chairman, In what the other bocly did or the Senate
excused. While it is directed primarily all honesty, without engaging In committee did or what they might not
at scrubby publications which under- heated debate, in response to what my have done: what is significant is what
take to make it their business to de- friend, the gentleman from Illinois Lhe House in our deliberations over
literately disclose the names of covert (Mr. McCi,oRY), has said as a very val- the last 2 years has done, working
agents, it would affect anybody who uable presentation. closely together, not as partisans but
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working closely to try to do one thing
and that is the terribly difficult task
of balancing the need to protect our
inteltigence agents abroad and the
?ed to so draft the legislation that we
ill protect first amendment rights,
~k-otect people who have no access to
classified information. who might, for
whatever reason, somehow reveal the
name of an intelligence agent of this
country and, therefore, be crimina-
lized under this legislation.
The amendment before my col-
leagues that we have been arguing,
submitted by the gentleman from
Ohio (Mr. Asxsxoox) does not deal
with the first category, those people
who have had authorized access to
classified information. None of those
are covered by the Ashbrook amend-
ment.
The Ashbrook amendment does not
cover the second group of individuals
in our bill who learn of a covert identi-
ty as a result 'of having authorized
access to classified information. That
is not covered.
The only thing that the Ashbrook
amendment attempts to do is to
change the standard on people who
have had no access to classified infor-
mation, who may be revealing unclas-
sified information, but who, iP inad-
vertently or in jest name the name of
someone who happens to be in the
employ of our country In a covert ca-
pacity, could be prosecuted under this
section.
I could be at a cocktail party under
the Ashbrook amendment and just say
-t jest, "John Ashbrook is a covert op-
rative of the CIA." If there was a
John Ashbrook operating in the, covert
intelligence service of this country and
I got it right accidentally, under the
Ashbrook amendment, if we adopt it, I
could be prosecuted, assuming the
other elements oP the bill were proved,
because under a negligence standard
as the gentleman from Illinois (Mr.
McCLORY> has eloquently pointed out,
I could be prosecuted if I aught to
know, if I ought to have a reason to
believe that a John Ashbrook was in
the employ of our country. That could
not happen under a specific Intent
standard.. There would be no specific
intent shown if I had made that state-
ment.
Mr. ASHBROOK. Mr. Chairman,
will be gentlerilan yield?
Mr. FOWLER. I will be glad to yield
to the gentleman from Ohio (Mr. Asx-
BROOK ). -
Mz. ASHBROOK. The agent from
Ohio would like to point out that my
good friend, when he speaks, I listen,
but I think he has missed the first five
words of the amendment. The point
that he has not made is it says, "Who-
ever in the course of a pattern of activ-
ities."
Now, you could not just be at a cock-
tail party and make one statement iP
there were not a pattern of activities.
pattern would include seeking out
.~e information, endeavoring to get it.
You just caT~not make one quick state-
ment and that would not suffice for a
pattern of activities. The cases, the
language is very clear. It has to be a
part of a course of action or a pattern
of activities. So a casual statements of
that type standing alone, without the
pattern that showed there was Agent
Ashbrook getting the information, he
sought it out, he got it illegally, he got
it illicitly. an entire pattern that
would have been developed before
that language would cover that exam-
ple. -
The CHAlRMAlr The time of the
gentleman from Georgia has expired.
(By unanimous consent Mr. FowL?x
was allowed to proceed for 3 additional
minutes.)
Mr. ASHBROOK. If my colleague
will continue to yield, I hope my col-
league will acknowledge that point.
That is the way it was written.
Mr. BOLAND. Mr. Chairman, will
the gentleman yield?
Mr. FOWLER. I yield to the chair-
man of the committee, the gentleman
from Massachusetts (Mr. BOLAND).
Mr. BOLAND. On the very point of
negligence, which .has been -raised by
the gentleman from Ohio and by the
gentleman from Illinois and the gen-
tleman from Georgia, let me read
from the hearings a statement of
'Richard K. Willard, who is counsel to
the Attorney General for Intelligence
Policy. My distinguished friend and
colleague from Ohio (Mr. ASHBROOK)
likes to quote Mr. Willard. Let me
quote him with respect to this area.
The gentleman from Georgia rx
was allowed to proceed for 3 additional
minutes)
Mr. FOWLER. Again we are not
talking about people who have had
any access to classified information.
We are going to get them and get
them good under this bill, which I sup-
port and the gentleman supports. But
if the Ashbrook amendment carried,
we are talking about either unclassi-
fied information in the public domain
or from the mouth of somebody who
has never had any access to any classi-
fied information. Therefore, the of-
fender would not have to intend a bad
result. He would not even have to
know that a bad result might occur.
But the gentleman's standard is that
he should have known that a bad
result would occur.
Mr. ASHBROOK. If it were a part
of a pattern of activities.
Mr. FOWLER. I do rot think we
ought to look at prosecutorial stand-
ards. Of course, the easiest way to get
into court is not what we are looking
for here. What we are looking. for here
and what the gentleman is looking for
is a constitutional standard that pun-
ishes the wrongdoer and yet protects
an individual who has never been in
the CL9, who has never had any access
to any classified information, who may
be repeating a name he has heard by
picking up one of those journals that
w?e are trying to do something with.
To apply a "reason to believe," negli-
gence standard, I submit to the gentle-
man from Ohio; whose record in sup-
port to constitutional measures I not
only recognize but ad.?nire, would
simply seriously jeopardize the plight
of those that have no part in being
covered by this bill.
(At the request of Mr. Asxsxoox
and by unanimous consent Mr.
FOWLEx was allowed to proceed for 2
additional minutes.)
Mr. ASHBROOK. If my colleague
will yield, in talking about .both the
constitutional tests that must be mus-
tered and talking about the standing
of intent and the reason to believe, the
most recent decision of the Supreme
Court, June 29, 1981, Secretary of
State 13aig against Agee, accepted the
very standard I am talkin6 about.
On page 29 let me read nine lines of
what the Court says in a direct quote:.
O 1245 -
Long ago, however, this court recognized
that "No one would question but that a gov-
ernment might prevent actual obstruction
to its recruiting service or the publication of
the sailing dates of transports or the.
number and location of troops."
Citing Near against Minnesota, 1931.
Mr. FOWLER. That is classified in-
formation.
Mr. ASHBROOK. I quote:
Agee's disclosures. among other things,
have Lhe declared purpose of obstructing in-
telligence operations and the recruiting of
intelligence personnel. They are clearly not
protected by the Constitution. The mere
fact that Agee is also enKaged in criticism of
the government does not render his conduct
beyond the reach of the law.
They apply the "reason to believe"
standard, not the "direct intent"
standard.
I am inclined to think either one is
constitutional, either one- passes
muster. I go back to the Department
of Justice and what they have said,
prosecutions and probably convictions
would be much easier to obtain if we
have the standards that I have.
I believe the standards of my col-
league, the gentleman from Georgia,
are fine. I think they are too prescrip-
tive. And all I am saying is that both
would meet the constitutional stand-
ard. -
The Supreme Court has recently ac-
cepted the standard I am talking
about, has done it time and time
again. Let us not make it more diffi-
cult. That was the last point that the
gentleman made. The gentleman did
not want to make.. it more difficult.
And I would suggest to my friend, the
gentleman from Georgia, he is making
it more difficult, and I say that most
honestly.
Mr FOWLER If I may attempt to
But I submit there Is a whole history
of the cases, distinguLshed from the
Haig case because they were talking
about classified information:
Elfbrandt against Russell, 1966:
A statute touching (first amendment pro-
tected) rights must be "narrowly drawn to
define and punish specific conduct ..."
The CHAIRMAN. The time of the
gentleman from Georgia (Mr. FowLEx>
has expired.
(By unanimous consent. Mr. FowLEx
was allowed to proceed for 2 additional
minutes.)
Mr. FOWLER. Broadrick against
Oklahoma. 1972:
It has long been recognized that the first
amendment needs breathing space and that
statutes attempting to restrict or burden
the exercise of first amendment rights must
be narrowly drawn and represent a consid-
ered legislative judgment that a particular
mode of expression has given way to other
compelling needs of society.
Why? Because we are talking about
John Q. Citizen, who has not been in
the employ of our country ir1 a clan-
destine or covert operation, who has
not had any access to any Confidential
or classified information. And that is
why, in the amendment that the gen-
tleman from Ohio (Mr. Asxsaoox) has
offered, you have got Lo have specific
intent in this section.
You could make an argument in the
first two sections of the bill that are
almost persuasive. But there is no
room under the Constitution, and
there is no quarrel with the CIA, there
is no issue of liberalism rersus conserv-
atism or ACU's versus ACLU's. We are
trying simply to balance the equity of
John Q. Citizen in being able to speak
out a-ithout the danger of being
hauled into court when he has had no
access to any classified information
whatsoever.
Mr. EDWARDS of California. Mr.
Chairman, will the gentleman yield?
Mr. FOWLER. I yield to the distin-
guished gentleman from California.
(ZVIr. EDWARDS of California asked
and was given permission to revise and
extend his remarks.)
Ivir. EDWARDS of California. I
thank the gentleman for yielding, and
I compliment the gentleman from
Georgia on his lawyerlike and scholar-
ly presentation. I agree with him and I
urge that the Ashbrook amendment
be defeated., -
I have indicated in my earlier re-
marks my opposition to H.R. 4. That
opposition is premised upon my firm
belief that any legislation which seeks
to criminalize the publication of infor-
wind up, I say to my friend, the gen- mation which is already in the public
tleman from Ohio, that I would be domain is unconstitutional.
almost persuaded-it-is a great hymn; - -The efforts of the Intelligence Com-
I will not sing it for you-almost per- mittee to narrow the criminal intent
suaded, if you were applying your - required for criminal prosecution are a
standard to 601 , not 601(a), because he is doing
things now that he dtd not learn when
he was an agent of the Central Intelli-
gence Agency.
But I believe it is important, as our
chairman has said, to keep our eye on
the ball, what it is that we are doing
here today. And what it is that we are
doing today, Mr. Chairman, is an-
nouncing, for all of Lhe world to see, a
declaration of this Congress, and that
is that we are going to protect the se-
curity of ottr Nation, that we are going
to do it by protecting the security of
those who serve our Nation. And that
is what we are doing in H.R. 4, and
that is what we would do with H.R. 4,
as amended by the gentleman. from
Ohio (Mr. Asxsxoox).
Now, there are different opinions as
to which one is the stronger approach.
I tend to believe that the Ashbrook
language is stronger. The DireCYor Of
the Central Intelligence Agency be-
lieves the . Ashbrook language is
stronger. The President of the I7nited
States believes the Ashbrook language
is stronger. A spokesman, a Mr. Ren-
frow, from the Carter administration,
believed that basically the Ashbrook.
language was stronger. Dr. Roy
Godson, an associate professor of gov -
ernment at Georgetown University
and the director of the Consortium for
the .Study of Intelligence in a paper
prepared for publication believes the
Ashbrook language is stronger and
constitutional and should be support-
ed: His and other expert opinions sup-
port the stronger language. -
I think it is important that we make
that declaration as strongly as possible
today, that we intend to protect those
who are protecting us. We make that
declaration not only to Our adversaries
in the world but also to our allies who
are working with us as we attempt to
If there is anything we could do for
the morale of the people who serve us
in these operations believe me, this
declaration on our part today is it. It
will Rio an awful lot to improve and to
boost ?that morale, to make them will-
ing to go out and do the things they
need to do to risk their lives, to take
chances, in the protection of our great
country. I believe we are going to
make that declaration today whether
we go with H.R. 4 as written today, pr ?
with H.R. 4 as amended by Mr. Asx-
sxoox. But I believe we make that dec-
laration much stronger if we adolrt the
Ashbrook amendment. put in -the
strong language: It is constitutional
and it is supported by those who
would be affected by this law. And, re-
member, eve are not talking about the
person at the cocktail party who inno-
cently and even mistakely might men- ?
tion someone's name in jest or in
joking. We are talking about the Phil-
lip Agees of the world who for the pur-
pose of removing the influence of the
United States of America from the in-
ternational scene is doing his utmost
to identify agents, to reduce their abil-
ity to do their jobs. -
Mr. DORN.~hT of California. Mr.
Chairman, I move to strike the requi-
site number of words, and I rise in sup-
port of the Ashbrook amendment.
(Mr. DORNAN of California asked
and was given permission to revise and
extend his remarks)
Mr. DORNA.~T of California. Ivlr.
Chairman, I rise to vigorously support
the amendment offered by the gentle-
man ? fTOm Ohio (Mr. Asxsxoox). I
would like to give a little historical
background as to why I believe this
stronger Ashbrook amendment is
needed.
I appreciate the scholarly and the le-
galistic approach in this body to any
issue that involves the .greatest of our
rights, the first amendment to the Bill
of Rights, freedom of speech.
But what we are talking about now
is also alife-and-death issue. We are
speaking about bringing before the
bar of justice American citizens who
actually work to get fellow Americans.
murdered.
Isn't it obvious that the Phillip
Agees of this world are so clever that
in the future they will read weak stat-
utes and then not speak themselves
but get some young man or young
woman, a U.S. citizen, corrupted in
protect ourselves. But I think it is ex- their early years by any of the false.
tremCly important, Mr. Chairman,' -ideologies that we see touted across
that we make that declaration today
for the agents, the men and women
who serve in the intelligence commu-
nity, for.. their families, for .their
spouses, for their children, for those
people who do not care what the
intent vas, they do not care about all
of the international politics; what
they want most is the protection of
the husband or wife who is involved in
protecting our country. That is what
we have got to do today, to make that
strong declaration.
our country, and use that person as a
cat's paw to do their dirty work-some-
one who has no background dealing
with classified information or who has
never even been in a government job
where they would have had the oppor-
tunity to come across classified infor-
mation. Then, that young traitor
"plays dumb" about releasing informa-
tion to get American intelligence offi?
cers murdered.
When I came to this Congress 5
years ago, on the first occasion I had
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to go over to the CIA headquarters telligence agents simply fade into is what I find is most annoying in the
building in Langley I noticed several oblivion. Pentagon. When new defense ideas
impressive things. (And, frankly, I am Of course Richard Welch's name is ~ come before the Pentagon planners, if
surprised that the overwhelming ma- up on the wall, his gold star of honor it is not an idea originated by someone
jority of my fellow colleagues have among those of his colleagues, and We on the-Pentagon payroll, they react
never been over there to the CIA for know beyond a doubt he was fingered "sorry, not invented here."
information.) When you approach the for murder in Greece by the cowards ~Ve should not have that attitude
CIA building through the main en- we intend to stop with this strongly here in Congress. Those of us not on a
trance, you can't help but see a statue worded Ashbrook amendment. given committee can sometimes im-
out in front of a young American who, This debate today as scholarly as it measurably strenghten committee bill
205 years ago yesterday, gave his life, may be, reminds me of many debates language.
the full measure of devotion, serving we have had in this House, by the I think the language of the gentle-
his country as an intelligence officer. good men and women who serve here, man from Ohio (Mr. Asxsaoox) does
He was a Yale graduate only 21 years who in trying to protect freedom of jt,tst that. This ugly new type of
of age. Capt. Nathan Hale was cap- speech, soften the law so badly as to American traitor who betrays our
tured by his foes in one of the very give the criminals virtual immunity agents in the field whether that trai-
first intelligence missions of our coon- thereby destroying the intent of what for serves in the Government or not,
try during our Revolutionary War. we were debating about in the. first or had access to information or riot,
This statue on the CIA grounds is place. must be stopped. I believe Phillip Agee '
one of three exact copies of the one Let me give several instances. We ~ a hazd core traitor, every bit as de-
standing in "the yard" at .Yale. An- passed unanimously in this House, in serving of disgriECe as Benedict Arnold.
other is in front of the New York City my first year, a bill to do .something
Hall, the. fourth right here in front of about the particular offensive crime of When he uses some young man or
our Justice building out ,on Constitu- child pornography. But we so crippled woman to do his dirty work for him.
tion Avenue. Many of us drive by that what we were trying to stop by putting we should be able to bring that person
memorial to Nathan Hale every morn- on so called first amendment protec- to justice.
ing. It reminds me whenever I gaze bons- I asked the former CIA Director,
upon it of the most striking memorial The CHAIRMAN. The time of the and the current Deputy Director of
over at CIA headquarters. The Roll gentleman from California who is servinS outside the United
States or has within the last fiti~e years
served outside the United States:
"(B) a United States citizen whose past or
present intelligence relationship to the
United States is classified information and-
"(i) who resides and acts outside the
United States (or who resided and acted
outside the United States) as an agent of, or
informant. or source of operational assist.
ante to, an intelligence agency, or
"(ii) who at the time of the disclosure is or
was at any time acting as an agent ot, or in-
formant to, the fomign counterintelligence
or foreign counterterrorism components of
the Federal Bureau of Investigation; or
Mr. SOLOItiiON. Mr. Chairman, first
of all, let me Just say to the committee
chairman, the subcommittee chair-
man, and our ranking minority mem-
hers on this side of Lhe aisle, as well as
all the members of our committee,
that I just want to commend them for
an excellent Job. I think this is Long
overdue, and we should. here passed
this legislation long ago.
However, I do feel that there is one
inequity that we really must deal with.
If we are going to put some teeth back
in our CIA, if we are going to have a
counterintelligence operation which Ls
going to be as strong as our potential
enemies, I think we have to do ev~ry-
thing in our power to give- them that
opportunity.
0 2413
Mr.' Chairman, this amendment in
no way expands the scope of this legis-
lation. It does not add or subtract
from the constitutionality of the bill.
What it does is put our.. CIA on an
equal' or superior basis with any other
foreign intelligence operations in this
world. I thinY we owe it to the Ameri-
can people to give them this kind of
protection. I would certainly hope all
of our colleagues would support this
legislation. '
The committee has not "acted firmly
enough to protect the identities of
former intelligence agents and opera-
tives from unauthorized disclosures.
My amendment would extend the pro-
tective coverage of this legislation to
include former agents and operatives
of the intelligence community:
The majority of these former agents
have already served the IInited States
at considerable personal risk, and to
my mind, there is absolutely no possi-
ble justification for exposing them to
danger at this _point by excluding
them from the protection. provided by
this legislation. .
There are also persuasive counterin-
telligence reasons for maintaining the
cover of former agents. In many in-
stances the individual's contacts and
sources may still be in place and
active. Such a network may have been
was not supported nor requested by
any of the intelligence agencies, nor
by the Justice Department. We of
~^~irse, in connection with the kind of
persons with whom we are deal-
? vho make these revelations,
wanted to be sure we approach that
problem, and made sure they were acts
of commission, but at the same time
do it in a way that would not cause
people to believe that we have taken
illegal action. We therefore consulted
the Pentagon Papers case, Mear
against ltQinnesota, all of the cases of
consequences that have been decided
in the United States on prior restraint,
and crafted our bill. within those
bounds_
With respect to the gentleman,.. it
would appear that having studied the
amendment, it would push the bill
beyond tho.5e bounds into what could
be possibly an unconstitutional prior
restrauit, and I think it would jeopard-
ize the bill's opportunity to do the
things which we want to do, that is, to
penalize those people who insist on dt-
vuiging the names of our undercover
agents.
Mr. bIcCLORY. Mr. Chairman, will
the gentleman yield?
14ir. MA7,ZOLI. I yield to the gentle-
man from Illinois.
Mr. 1`1cCLORY. Mr. Chairman, I
thank the ~~rtleman for yielding, and
I want Lo concur with- the gentleman's
statement. Although the amendment
of the gentleman from Florida is well
intended, I thlnk it would not passthe
-ne constitutional scrutiny which
aer provisior5 of the bill. will..I
think that it is not a good amendment,
and I wir,h rt luctance oppose it.
Ivir. BF.NNETT.. Mr. Chairman, will
'the gentleman yield?
'- Mr. ivIA?ZOLI. I yield to the gertle-
man from F".orida. ~ ~ -
The CHAIRMAN: The time of the
gentleman .from Kentucky .has ? ex-
pired. '
(At-the request. of Mr.'.B~v~ and
by unanimous consent PJi:r. PdnzzoLr
was allowed to proceed for 2 additional
'minutes.) _
Mr. BEI+rNETT. As far as the desire
of the CIA is concerned, they were the
ones that sent me this..I did- not write
this language myself. It came from. the
CIA-not officially,' but .came years
ago. from the CIA as something they
wanted. As far as the legality of it is
concerned. I have cited- 'a .Supreme
Court case 'and a Federal supplement
case...The gentleman has cited no case:
This amendment provides no unusual
procedure. It is done many times.
Furthermore, if thLs particular pro-
vision of. the law would fail,. just this
.provision of the law would fail; it is in
no way connected with: the rest. of the
bill, so if it is unconstitutional it would
fail alone_
Second, I have cited Supreme Court
visions and the gentleman has cited
. ~.hinK-
Third, it does come from the CIA.
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passed on to the individual's successor
and should the former agent's rela-
tionship be revealed, the entire net-
work may be compromised. According-
ly, in those cases where such a rela-
tionship remains otherwise concealed
and where the United States continues
to take affirmative measures to keep it
concealed, unauthorized disclosures of
such relationships should warrant at-
tachment of criminal liability.
By protecting former agents, my
amendment will strengthen this legis-
lation in three vital ways:
First, it will protect former agents
from possible harm as a result of the
disclosure of their true identities and
even save their lives.
Second, it will protect active opera-
tives ~vho may have assumed the
former agent's position; and
Third, it will protect the entire Intel-
ligence network which may have been
established by a former agent and
passed on to the former agent's succes-
sor.
? The Central Intelligence Agency
would like to see my amendment en-
acted and in response to my request
for their comment on my bill H.R.
?400, which contained an identical
provision as the amendment; at hand.
the agency counsel said:
Through efforts such as yours we hope to
strengt)zen and improve the intelligence ap-
paratus that is so vital for the protection of
our Nation's security. As you know, the CIA
has been engaged In a consistent effort to
have each of the various proposals of your
bill enacted into law.
Mr. PdcCLORY. Mr. Chairman, I rise
in opposition to the amendment.
Mr. Chairman, I rise in reluctant op-
position to the amendment. I know
the amendment Is well intended but I
might say that in the 3 years of hear-
ings that we had on this legislation
this amendment was never even pro-
posed. It seems to me that this goes
far beyond the scope of the legislation
as we have intended it here and would
create a new type of crime which the
Federal Government would be in-
volved in. -
What we are trying to do here is to
protect the identities of covert agents
who are operating on behalf of o~u'
country and to protect them against
assassination or against their identity
being disclosed because our national
security 3s involved. 1t seems to me
that with that intent and with that
purpose of this legislation ?we should
limit the scope of the legislation. to
covert agents who are operating in
behalf of our CIA or other intelligence
agencies or, FBI agents who operate
under cover with regard to their coun-
terintelligence activities.
I have full sympathy for former in-
telligence officials and I think we
should protect them.. I am sure that
they are protected under many laws-
local, State, and Federal laws-that tive
have now. But to include them in this
legislation, it seems to me, diverts ot-r
attention from what we are undertak-
ing to do here and would establish a
new criminal statute that would
impose obligations on the Federal
Government ~oith regard to an activity
which is beyond the scope of the legis-
lation.
Mr. SOLOMON. Mr. Chairman, will
the gentleman from Illinois yield?
Mr. McCLORY. I yield to the gentle-
man from New York rtury in the event that their names
were disclosed.
The gentleman's amendment, the
point that the gentleman pushes with
his amendment came before the com-
mittee and I think, as the gentleman
from Illinois (Mr. McCtoaY) has said,
we had in the 3 years I have worked
on this bill no real strong evidence
that former officers, retirees, people
who; as the gentleman said; served
abroad and have come back home are
in a position of Jeopardy or danger
that we certainly understand is the
case of those who are currently work-
ing actively and are involved in foreign
assignments under cover.
So we, by matter of choice, and with
an effort to limit the coverage of our
bill to make sure we go against the
people a-e really want to go against, we
limited the coverage of the bill to
active officers and U.S. citizen agents.
In the case of intelligence employees
as the gentleman knows, "covert
agent" includes those who serve over-
seas and have come back home within
the last five years. So if the individual
is a U.S. citizen and he is an actual em-
ployee of an intelligence agency and
has had a post abroad and comes back
home, his identity is protected for 5
Ye~-
In the event of a person who is with
the Central Intelligence Agency who is
in the normal run of things retired,
the committee. felt that that would
not normally reach the situation of
danger in the event of his name being
disclosed.
TVIr. SOLOMON, Mr. Chirman, will
the gentleman yield?
Mr. MAZZOLI. I yield to the gentle-
man from New York.
Mr. SOLOMON. I understand what
the gentleman is talking about, but I
wish the. gentleman would just look at
page 2 of the bill on line 18 where we
talk about "the United States is taking
affirmative measures to conceal." if _
the gentleman looks over on page 3,
line 7, it ~ continues that languages,
that "the United States is taking af-
firmative action to conceal." Line 18 it
continues. I do not change that fan-
. guage. ~ _ .. _ . ._ -
What I am saying ~is that if the
United States is still taking action to
conceal that former CIA agent's iden-
tity, then it ought to be a crime the
same as it is if he is an agent or If he
falls within that 5 years, because
sometimes the cover can continue
much longer than the 5 years. All my
amendment does is include them
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Mr. MAZZOLI. I would certainly
' accept the gentleman's general de-
scription. Imean that irl the sense
that it makes us discuss a problem.
But in the 3 years w?e have worked
with this, and I have been on the sub-
committee each time, I really cannot
recall that the intelligence agencies
said that this was really something
that was a problem. What was a prob-
lem was Welsh in Athens and what
has been a problem was what hap-
pened in Kingston, Jamaica, and what
has been a problem has been what oc-
cured in Mozambique, but not agents
who have come back home and who
have retired and who were in a sense
doing other things.
Obviously there are at least two
former CIA agents now who are in the
headlines fbr having gone on to other
things. I would certainly suggest that
those people, if they were acting
under cover at some point, should not
have any kind of further protection
from the government for what they do
now.
What I would like to comment upon
is the gentleman's remarks about net-
works. The contention is that when
you reveal, you may endanger the net
work. You know that within the cover-
age of covert agents we have included
a non-U.S. citizen who is in the United
States now and did occupy a covert po-
sition for us abroad, who has, for ex-
ample, family that is still in the old
country, or vulnerabilities in returning
home if exposed. That person can be
protected; that person does come
under the coverage of the bill. So we
are not Immindful of that kind of net-
work problem.
.But we felt, and I think correctly so,
that we needed to limit the scope to
that kind of network and to eliminate
as being too extensive the coverage of
retired CIA or other irteliigence per-
sonnel. Those people are, or were, pro-
fessionals. They use clandestine trade-
craft to conceal their recruitment and
running of agents. Revealing the iden-
tity is unlikely, therefore, to expose
any network of agents.
Mr. ASHBROOK. If my colleage will
continue to yield for one point, lie
might convince me to relax my con-
cern. Is it my colleague's understand-
ing that it is the intention of this leg-
islation, where the U.S. Government
endeavors to protect the identity of a
former agent who has retired, to pro-
tect this agent? It is important not
only to protect the agent but the
assets and the work that he might
have accomplished or have been en-
gaged in throughout the world. Wher-
ever the Government has endeavored,
to protect that agent, even though he
is retired, is that that situation cov-
ered by the bill the gentleman from
Kentucky has written?
Mr. MAZZOLI. Yes, but I am not
sure that answers the problem.
Mr. ASHBROOK. Because if it is, it
would easily answer most of the ques-
tions my colleague has raised.
The CHAIRMAN. Time of the gen-
tleman from Kentucky has again ex-
pired.
(By unanimous consent Mr. MAZZOIs
was allowed to proceed for 2 additional
minutes. )
Mr. MAZZOLI. Certainly where the
United States is taking affirmative
measures to conceal an agent's identi-
ty, that certainly works in behalf of
saying that that agent still had an
active role to play, some active connec-
tion with the U.S. Government. But it
was not the committee's intent, in
candor to the gentleman, that we con-
tinue this relationship indefinitely 11,
for example, the method of maintain-
ing the cover here or maintaining the
security of this information is just
simply something out at Langley,
some sort of a book. I think there has
to be an active relationship that still
exists between a U.S. citizen and the
U.S. Government before that individu-
al would stiA qualify as a covert agent
who would then come under the cover-
age of the bill in the event that that
information is disclosed.
But, again, if the Government is
taking active steps to maintain the
sanctity of that information, then that
could well establish the fact that this
individual has a continuing relation-
ship with the Government. But, again,
I do not think that would extend to a
retiree, to a person who once had a
clandestine role in intelligence, who
had just come back home to retire.
lair. ASHBROOK. I thank my col-
league for that very honest answer.
'I'liat would have been my appraisal,
too. It is one of the reasons that, on
balance, I would favor the amendment
of the gentleman from New York, be-
cause Ithink it is very important to
protect the former agents, to protect
the assets and, contacts that he had,
the ongoing work that he had that
was not necessarily terminated simply
because of his retirement. We should
vote yes on the Solomon amendment
to help complete the job we started by
the adoption of my stronger language
just a few minutes ago.
through ~,llch time as the United
States is taking affirmative action to
conceal, and that is what they want.
Mr. MAZZOLI. Without saying my
atement would be inclusive, I would
;Iggest that in most cases where an
indivii3ual's identity is still being pro-
tected and where the Government is
taking affirmative measures to conceal
such agent's identity, that person
probably has an active role and in-
volvement with the agency at this
time, in which case that person should
be included, and is included, as a
covert agent.
In the true case of retirement they
probably. have outlived the purpose
for which they were originally posted
abroad or at home.
Mr. ASHBROOK. Mr. Chairman.
will the gentleman yield?
Mr. MAZZOLI. I yield to the gentle-
man from Ohio (Mr. AsxBROOK).
Mr. ASHBROOK. I would say to my
-colleague I understand how we want
?to move this bill along. I agreed earlier
not to present an amendment because
? the subject matter can be taken care
of later, and also because it would
have expanded what we are trying to
accomplish here. On that agreement I
withdrew. We have an immediate need
for legislation for an urgent need in a
narrow legislative action.
I think we are not really expanding
the basic coverage in this amendment
by the gentleman from New York (Mr.
SOLOMON). As a matter of fact, let me
pose a question. I happen to believe we
?light have an ambiguity in the bill
;hich we did not intend to be there.
In the bill we talk about current intel-
ligence officers. We should also talk
about protecting former CIA officers.
Quite oftep we are also talking about
protecting their assets. One might
expose a former agent who was a CIA
operative in Paris and the simple fact
of exposing him, even though he is a
former agent, would automatically
.. trigger problems for his assets, the
people he met with, the people he had
..lunch with every day.
We should cover that situation. But
the way the language is written it is
almost atwo-stage operation.. Ii you
expose a former CIA officer, you also
have to show that in doing that you
. are exposing his assets or an agent or
someone he worked with overseas.
. The CHAIRMAN. The time of the .
gentleman from Kentucky has ex-
pired.
(At the request of Mr. AsImROOK
and by unanimous consent Mr. MAZ-
zol.>< was allowed to proceed for 2 addi-
tional minutes.)
Mr. MAZZOLI. I yield to .the gentle-
man.
Mr. ASHBROOK. I understand the
position of the majority that we do
not want any amendments to the bill.
I am just wondering if our colleague
?rom New York has not pointed out
~mething that is very important and
.f we do not, in fact, have an arnbigu-
Ity in the bill.
^ 1430
I think my colleague from New York
has a very good amendment and a
very good point.
The CHAIRMAN. The question is on
the amendment offered by the gentle-
man from New York (Mr. So1.onloN).
The question was taken; and on a di-
vision (demanded by Mr. MAZZOIa)
there were-ayes 25, noes 14.
xEECORnEn voxs '
Mr, MAZZOI.,I. Mr. Chairman, I
demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic
device, and there were-ayes 313, noes
94, not voting 26, as follows:
[Roll No. 213)
AYES-313
Akaka Anderson Anthony
A2bosta Ardrew~s AAPIeKate
Alexander Annunzio Archer
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CONGRESSIONAL $ECORD -HOUSE H 653?
Ashbrook
Gibbons
Moorneaa
Atkinson
Gilman
Morrison
AuCuin
Gingrich
Mottl
Badham
Cinn
Murphy
Befalls
Glickman
Murtha
Bailey
w;den
Dymally
Mitchell (MD)
Yates
Edgar
Ottinger
NOT VOThTG-23 -
BolllnQ Frenzel Pashayan
Carney Ifollznbeck Raisback
Collins (1L) Hoyer Rina;do
Counter Lowery (CA) SA4aiie
Danielson McC'.oskey jcheuer
Daub Dioffztt Ssjandzr
Derwinski Nelson Weber (OA3
Fart' Nichols
^ 1515
The Clerk announced the following
pairs:
On this vote:
Mr. Nelson for, with Mrs. Collin3 of Illi-
nois against.
Until further notice:
Mr. Nichols with NIr.