PROPOSALS TO CRIMINALIZE THE UNAUTHORIZED DISCLOSURE OF THE IDENTITIES OF UNDERCOVER UNITED STATES INTELLIGENCE OFFICERS AND AGENTS HEARINGS BEFORE THE SUBCOMMITTEE ON LEGISLATION OF THE PERMANENT SELECT COMMITTEE ON INTELLIGENCE HOUSE OF R

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January 31, 1980
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Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 PROPOSALS TO CRIMINALIZE THE UNAUTHORIZED DISCLOSURE OF THE IDENTITIES OF UNDERCOVER UNITED STATES INTELLIGENCE OFFICERS AND AGENTS HEARINGS SUBCOMMITTEE ON LEGISLATION PERMANENT SELECT COMMITTEE ON INTELLIGENCE HOUSE OF REPRESENTATIVES NINETY-SIXTH CONGRESS U.S. GOVERNMENT PRINTING OFFICE 63-2130 WASHINGTON : 1980 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 PERMANENT SELECT COMMITTEE ON INTELLIGENCE (Established by H. Res. 655, 95th Congress, 1st session) EDWARD P. BOLAND, Massachusetts, Chairman CLEMENT J. ZABLOCKI, Wisconsin J. KENNETH ROBINSON, Virginia BILL D. BURLISON, Missouri JOHN M. ASHBROOK, Ohio MORGAN F. MURPHY, Illinois ROBERT McCLORY, Illinois LES ASPIN, Wisconsin G. WILLIAM WHITEHURST, Virginia CHARLES ROSE, North Carolina C. W. BILL YOUNG, Florida ROMANO L. MAZZOLI, Kentucky, NORMAN Y. MINETA, California WYCHE FOWLER, JR., Georgia THOMAs K. LATIMER, Staff Director MICHAEL J. O'NEIL, Chief Counsel PATRICK G. LONG, Associate Counsel JEANNE M. MCNALLY, Clerk SUBCOMMITTEE ON LEGISLATION MORGAN F. MURPHY, Illinois, Chairman ROMANO L. MAZZOLI, Kentucky ROBERT McCLORY, Illinois WYCHE FOWLER, JR., Georgia JOHN M. ASHBROOK, Ohio EDWARD P. BOLAND, Massachusetts BERNARD RAIMO, Jr., Counsel IRA H. GOLDMAN, Counsel Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 CONTENTS Wednesday, January 30,1980_______________________________________ 1 Thursday, January 31,1980________________________________________ 105 LIST OF WITNESSES WEDNESDAY, JANUARY 30, 1980 Testimony of Hon. James C. Wright, Jr., a Representative in Congress from the 12th Congressional District of the State of Texas ------------ 3 Testimony of Hon. Frank C. Carlucci, Deputy Director of Central In- telligence, accompanied by Mr. Daniel Silver, General Counsel, Central Intelligence Agency, and Mr. Frederick P. Hitz, Legislative Counsel, Central Intelligence Agency_______________________________________ 11 Testimony of Mr. Robert L. Keuch, Associate Deputy Attorney Gen- eral------------------------------------------------------------ 28 Testimony of Floyd Abrams, Esq., Cahill, Gordon & Reindel; chairman, Committee on Freedom of Expression of the Litigation Section of the American Bar Association________________________________________ 45 Testimony of Mr. Jack Blake, president, Association of Former Intel- ligence Officers; and former Deputy Director for Administration, Central Intelligence Agency--------------------------------------- 59 Testimony of Mr. Morton Halperin, director of the Center for National Security Studies; Mr. John Shattuck, director, Washington office, Amer- ican Civil Liberties Union; Mr. Jerry J. Berman, legislative counsel, Washington office, American Civil Liberties Union___________________ 66 Testimony of Mr. Ford Rowan, visiting associate professor of journalism, Northwestern University and former correspondent for "NBC Tele- vision News"--------------------------------------------------- 84 Testimony of Mr. M. Stanton Evans, journalist and commentator, former editor, Indianapolis News_________________________________________ 98 THURSDAY, JANUARY 31, 1980 Testimony of Hon. Charles E. Bennett, a Representative in Congress from the Third Congressional District of the State of Florida-------------- 105 Testimony of Mr. William H. Schaap, coeditor, CovertAction Informa- tion Bulletin, accompanied by Ms. Ellen Ray, coeditor, CovertAction Information Bulletin and Mr. Louis Wolf, coeditor, CovertAction In- formation Bulletin_______________________________________________ 111 Testimony of Mr. William E. Colby, Reid & Priest, former Director of Central Intelligence______________________________________________ 126 APPENDIXES Appendix A, material submitted for the record by Mr. Robert L. Keuch, Associate Attorney General_______________________________________ 138 Appendix B, letter to Representative Romano L. Mazzoli from Floyd Abrams, Esq---------------------------------------------------- 141 Appendix C, prepared testimony of Senator Lloyd Bentsen__ ___________ 149 Appendix D, H.R.3356-------------------------------------------- 151 Appendix E, H.R.3357-------------------------------------------- 152 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 IV APPENDIXES-Continued Page Appendix F, H.R.3496-------------------------------------------- 152 Appendix G, H.R.3762-------------------------------------------- 153 Appendix H, H.R. 4291 -------------------------------------------- 154 Appendix I, H.R. 5615 and section-by-section analysis----------------- 155 Appendix J, Department of Justice draft bill entitled, "Foreign Intel- ligence Identities Protection Act" and section-by-section analysis-_---- 159 STATEMENTS Hon. James C. Wright, Jr., a Representative in Congress from the 12th Congressional District of the State of Texas------------------------- 4 Hon. Frank C. Carlucci, Deputy Director of Central Intelligence accom- panied by Daniel Silver, General Counsel, Central Intelligence Agency; and Frederick P. Hitz, Legislative Counsel, Central Intelligence Agency_ 11 Mr. Robert L. Keuch, Associate Deputy Attorney General------------- 28 Floyd Abrams, Esq., Cahill, Gordon & Reindel; chairman, Committee on Freedom of Expression of the Litigation Section of the American Bar Association----------------------------------------------------- 45 AFTERNOON SESSION-PAGE 140 \Ir. Jack Blake, president, Association of Former Intelligence Officers; and former Deputy Director for Administration, Central Intelligence Agency--------------------------------------------------------- 59 Mr. Morton Halperin, director of the Center for National Securities Studies accompanied by Mr. John Shattuck, director, Washington office, American Civil Liberties Union, and Mr. Jerry J. Berman, legislative counsel, Washington office, American Civil Liberties Union-- 66 Mr. Ford Rowan, visiting associate professor of journalism, Northwestern University; and former correspondent for "NBC Television News"_ - 84 Mr. M. Stanton Evans, journalist and commentator, former editor, Indian- apolis News---------------------------------------------------- 98 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 PROPOSALS TO CRIMINALIZE THE UNAUTHORIZED DISCLOSURE OF THE IDENTITIES OF UNDERCOVER UNITED STATES INTELLIGENCE OFFICERS AND AGENTS WEDNESDAY, JANUARY 30, 1980 U.S. HousE of REPRESENTATIVES, PERMANENT SELECT COMMITTEE ON INTELLIGENCE, SUBc0MMITTEE ON LEGISLATION, Wa8hington, D.C. The subcommittee met, pursuant to notice, at 9:04 a.m., in room H-405, the Capitol, Hon. Romano L. Mazzoli presiding. Present : Representatives Mazzoli, Fowler, Boland (chairman of the full committee), McClory, Whitehurst, and Young. Also present : Thomas K. Latimer, staff director; Michael J. O'Neil, chief counsel ; Patrick G. Long, associate counsel ; Bernard Raimo, Jr. and Ira H. Goldman, counsel ; Annette H. Smiley and Herbert Romerstein, professional staff members ; and Louise Dreuth and Diane Kennedy, secretaries. Mr. MAZZOLI. The subcommittee will please come to order. We have the pleasure of having with us the chairman of our full committee, the gentleman from Massachusetts, Mr. Boland, who has a statement. The gentleman from Massachusetts. Mr. BOLAND. Thank you, Mr. Chairman. First of all I want to welcome all of you here this morning to what I am sure will be interesting hearings, today and tomorrow. In the past several years, the intelligence activities of the U.S. Government have been exposed to the light of public scrutiny to a degree never before witnessed in this or any other country. Presidential commissions, congressional committees, judicial de- cisions, investigative reporters, have all, at one time or another, given us a detailed glimpse of the day-to-day practices of our intelligence agencies. To an unfortunate degree, some of these practices were found want- ing, wanting in terms of their compatibility with American values, morals, laws and constitutional precepts. We have now, I believe, taken the painful but necessary steps to bring to a halt such practices and to insure that they do not occur again. All of this has not been done without rancor, divisiveness, and heated debate among our people and within the Government. Significantly, however, both sides of the debate have always pro- ceeded on the unquestioned assumption that it is both necessary and proper for this country to possess a clandestine intelligence service. The simple and obvious fact is that a clandestine service cannot function if the identities of its undercover officers and agents are con- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 tinually being subjected to the public gaze. And this, we are told, is exactly what is happening today. No matter how hard I may try, I cannot come up with a sensible political, moral, or legal reason for American citizens to intentionally disclose the names of this country's undercover agents. The only argu- ably acceptable reason I can come up with, disclosure of abuses or illegal activity, does not seem to be in the minds of those who publish whole lists of names of alleged agents, with no reference at all to any possible illegal actions. Furthermore, we have now established honest and responsive mechanisms such as the congressional intelligence com- mittees, to look into charges of intelligence agency abuses. We are thus left in the position, I believe, where a criminal statute is necessary. The bill under discussion today, H.R. 5615, is offered by this committee as a narrowly focused and effective solution to the dis- closure problem. I recognize that some of its provisions are controversial and touch on first amendment questions. Neither I, nor I am sure, the other members, are wedded to every section, and I look forward to an open and frank discussion of the sensitive constitutional and legal issues involved. I fully expect that our final product will demonstrate that an ef- fective intelligence collection capability is compatible with the values upon which our democratic society is based. That is the thrust of the Intelligence Identities Protection Act. Thank you, Mr. Chairman. Mr. MAZZOLr. I thank the gentleman from Massachusetts, our chairman. And does the gentleman from Illinois, the ranking member, have a statement? Mr. MCCLORY. Yes, Mr. Chairman, thank you very much. I want to applaud the chairman in calling this hearing which I strongly sup- port. The identities of CIA intelligence officers and agents must be kept secret, and legislation to protect this secrecy, it seems to me, is ex- tremely important. In other words, we.must not only protect the in- telligence collection capabilities of our Nation, but also the liveli- hoods, and in some instances the very lives of those who are involved clandestinely in securing information vital to our Nation's security interests. The damage to our security caused by misguided disclosures is clear and the jeopardy to the safety of the individuals involved is clear. What is not so clear, however, is the horrible impact this has on the people who are involved. Mr. Chairman, consider, for instance, a CIA case officer. First he spends months training, away from his family, sometimes in language study, and he has physical, intellectual and emotional demands placed upon him. In many cases he is sent off to a faraway country to perform services vital to our national interests. On top of all this, the CIA officer must hide his or her true work from his friends and relatives, even from his own children. This often goes on not for a matter of years, but for many, many years; in some instances, even after a person retires, he must main- tain his secrecy about his service in the CIA. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Think of the impact that the wholesale disclosure of secret identities has on the lives of these people. Consider also the patriotic American businessman or woman who engages in international transactions. While wanting to assist our foreign intelligence effort, he or she is fearful of losing an entire business if word of cooperation with the CIA comes out. How can we ask for such cooperation unless we are willing to lessen the chances of disclosure? And without being able to call on those Americans who have significant foreign contacts, our country is truly hurt. For these reasons, too, congressional action is sorely needed. Mr. Chairman, I am very happy to join in the support as a co- sponsor of this legislation which has strong bipartisan support. It seems to me that this is a piece of legislation which needs prompt ac- tion, and I am happy that we have been able to call early hearings on the measure. Thank you, Mr. Chairman. Mr. MAZZOLI. I thank the gentleman from Illinois, and I would recognize the gentleman from Georgia, a valuable member of our committee. Mr. FOWLER. It has been pretty much covered, Mr. Chairman, ex- cept to say that this is one of the most important issues that we have addressed, attempting to balance our Nation's security needs and protecting individual liberties. There is no question that the continued exposure of our undercover agents operating in the service of this country is a threat to our na- tional securityy. At the same time, when we talk about putting people in jail for releasing unclassified information, we have to tread very carefully in legislative waters. I believe, as we did last year with the Foreign Intelligence Surveil- lance Act, that we will be able to balance these ofttimes competing ends, and I look forward to the expert testimony of our witnesses, and appreciate the bipartisanship with which the bill has been drafted, and hope that we will be able to perform this function. Mr. MAZZOLL I thank the gentleman from Georgia. The gentleman from Kentucky, the acting chairman of the com- mittee today, has a statement, but in deference to the time constraints of the gentleman from Texas, our first witness, the acting chairman will defer stating that opening statement. I would at this point, though, like to mention that-and I am sure all of my colleagues join me in expressing best wishes to the permanent chairman of our subcommittee, Morgan Murphy, the gentleman from Illinois, who is ill and unable to be with us today, but whose leader- ship on the committee and on this particular issue has been on the record for a long time. We are honored today to welcome to our committee our first witness. Hon. Jim Wright of Texas, the distinguished majority leader of the House of Representatives. Mr. Wright is the chief sponsor of H.R. 3357, which is one of sev- eral bills before the committee. Mr. Wright's bill seeks to protect the identities of undercover CIA agents and officers. Majority Leader Wright has been among the earliest and most persuasive forces in Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 the House urging legislative protection for undercover intelligence personnel. We appreciate your being here today, Mr. Majority Leader. You can proceed as you wish, to summarize, to state your case, and to get back to the important business of majority leadership. STATEMENT OF HON. JAMES C. WRIGHT, JR., A REPRESENTATIVE IN CONGRESS FROM THE 12TH CONGRESSIONAL DISTRICT OF THE STATE OF TEXAS Mr. WRIGHT. Thank you very much, Mr. Chairman. I regard this particular bill as a significant part of the important business of the majority leader's job, just as it is a significant part of the congressional agenda. I want to congratulate you, first of all, upon the initiative you have demonstrated in calling these hearings. I hope they will result in the prompt presentation of a bill to the House so that we might pass it. I want to appear here today to underline and to stress the im- portance which we attach to President Carter's request for a revitalization of the CIA and our Nation's intelligence-gathering ap- paratus. I think we all recognize that for several years now we have been undergoing an orgy of self-recrimination, even self-flagellation. It has become chic in some quarters to disparage and to belittle the CIA. But to make the Nation's intelligence apparatus the object of scorn is damaging. It is bad because of the deleterious effect that it exercises upon the morale of those who must perform this delicate, dangerous and dif- ficult task for the United States. And I have been told in conversations with members of that Agency and with agents that it has had a very bad effect upon morale and that many of them now look forward only to retirement. They have lost their zest simply heeause they haven't been able to feel that the public, that the United States appreciated their efforts or was behind them. But worse is being done than that, of course, and it is the worst that these bills attempt to approach. Some zealots have carried their hatred for the CIA one dangerous step further. They have taken it upon themselves to expose the identity of American CIA agents throughout the world, thus endangering their lives and deliberately drying up their intelligence sources. The prime example, of course, is the former CIA agent become rogue, a man named Philip Agee, who along with associates has been publishing a magazine with the stated purpose of exposinn CTA agents and operations whenever and wherever they are found. Now, that is just an absolute outrage. It is unthinkable that n nation mould tolerate this kind of depredation, willfully committed against those whom it entrusts to carry out so delicate and difficult a mission for the people, for the country. That kind of practice, of course, needs to be stopped. And It was with that in mind that I, along with other Members of the House and of the Senate, last year introduced proposed legislation to out- law that kind of activity. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Now, the bill that I introduced, in conjunction with Senator Bent- sen of my State, would make it a crime pumsliabie in Federal courts by up to a $10,000 tine and 10 years in jail 'for any person such as Agee publicly to disclose information which could endanger the lives of Americans engaged in the difiicuit, dangerous task of gathering essential information for this country. Now, that bill of mine is certainly not the last word, and I know that the committee will perfect and improve that language and prob- ably will add other provisions to whatever legislation comes out of this committee. But I should like to stress that the bill which I and others introduced doesn't interfere in any way with press freedom. Its penalties would apply only to those who have come into authorized possession of specific information and then decide on their own to betray their oaths of office and to betray their former colleagues, and indeed, to betray their country. I think the comments of Judge Gessell, in ruling negatively upon the power of the Secretary of State to deny a passport to this man Agee, was significant in that he suggested that the response of the Secretary of State might be likened unto using a fly swatter when in reality it seemed to him-a judge not known in any means for being insensitive to civil rights- that the appropriate action might be a charge of treason. And so it seems to me. The mortal danger to our Nation's personnel abroad is not just theoretical. We all know, of course, that in 1975 CIA Athens station chief Richard Welch was murdered shortly after a magazine article listed him as a CIA agent. That, in turn, has had another effect which I am sure can be ad- dressed much more knowledgeably by the witnesses who are here today to speak for the Agency. It has poisoned the wells from which our agents have drawn vital information in the past. It has become much harder, I am told, to get foreign sources to cooperate with us. The feeling seems to be that if we can't protect our own, well, we darned well can't protect them, or won't. And so they have quit dealing with people who are involved in our intelligence-gathering operation. If the identity of our intelligence agents is publicly known, then obviously those who would be their contacts abroad are going to be extremely wary of passing information to them or being seen in their presence, and their value as agents is largely destroyed. Of course, I am not talking of permitting the CIA to breek the law. That isn't even involved in this legislation. CIA personnel, just like all other Americans, like members of the FBI, Members of Con- gress, the President, and everybody else, must observe the law. There's nobody in this Nation who is above the law. But we do live in a real world, and it is sometimes a dangerous world, and some of this world's inhabitants plot and intrigue against us, against our Nation and our welfare. Certainly it is in our interest to know of their intrigues and to blunt their plots, and so we need to have a professional capacity to anticipate what is likely to happen in remote parts of the world. Of course, we were surprised. as were many neople tl,rou&'ont the world, at the forces which brought about the collapse of the Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Government of Iran, and that is very much on our minds in these days of trouble in the Persian Gulf. We can only speculate as to the danger and jeopardy in which the world peace and our national interests would be put if something similar to that, God forbid, were to occur in Saudi Arabia. To avoid such surprises in the future and to cushion our Nation from their effects is the very work of our intelligence agencies, and it is legitimate work. We need to respect it and we need to protect those who perform it for us. And I believe that there would be overwhelming and enthusiastic approval in the Congress and throughout the Nation, and a salutary effect throughout the world, if we act expeditiously and affirmatively on this legislation. Mr. MAZZOLL I certainly thank the majority leader for his thought- ful statement, and I would ask my colleagues, because of time con- straints, to limit our questions to the 5-minute rule, and that includes the acting chairman. Mr. Wright, you mentioned early in your statement that this bill seems to be on the agenda for the Congress for the second session of the 96th Congress. Can I take that to mean that this is one of the pri- ority, items on that agenda, and the Democratic leadership and the White House are committed to the achievement of some kind of a bill like this in this session? Mr. WRIGHT. Mr. Chairman, I most emphatically would answer in the affirmative. Yes, this is a priority item. It is one of the few things that the President of the United States asked us to do, to revitalize the CIA and our intelligence-gathering apparatus. I don't know of any better way to do it than through this bill. I don't mean to suggest that this is the only thing we need to do in that direction, but it is a good first step, and yes, if this committee reports the bill, we in the leader- ship will certainly be responsive to the requests of those handling the bill on behalf of this committee for early scheduling. We will make it a priority item. Mr. MAzzoLI. Thank you. I would follow that up with one thing, Mr. Majority Leader. This bill is controversial, and despite the effort of this subcommittee and the full committee, the end product will probably be controversial. It will not please one side nor the other entirely. Is the gentleman from Texas willing to suggest that he will put his forensic powers to work as well as his nose-counting powers to work in order to find a balanced approach to this significant issue? Mr. WRIGHT. Mr. Chairman, I trust the judgment of the members of this committee and I think you could be reasonably well assured that the leadership would give its support to the product of this committee. Of course, everything in this world is controversial. I suppose we could find some controversy to almost any conclusion we would want to state here today. But that, after all, is the warp and woof of the Congress. That is our business and we shouldn't shrink from it. Perhaps it is controversial. There may be some who don't feel that we should have any intelligence-gathering apparatus. But I think those people are few, and I am satisfied they do not speak for the American public. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Certainly there are legitimate concerns with regard to constitutional rights, free speech, but I don't believe that free speech extends to the right to put in jeopardy the life of somebody who is serving the United States in a very dangerous task any more than it would extend to the right of someone to divulge American troop movements in time of war. I think constitutional rights are pretty well understood in that re- gard, and I don't believe that the abuse of freedom is necessary to its maintenance. Mr. MAZZOLI. Thank you, Mr. Majority Leader. The Chair's time has expired. The Chair recognizes the gentleman from Massachusetts, Mr. Boland. Mr. BOLAND. Mr. Wright, I think there is no question about the fact that there is general agreement that legislation in this area must be strictly limited to protecting what is in fact secret, and what is in fact damaging to the national security. Your bill and the bill that Senator Bentsen, your colleague from Texas, has introduced, I think is drawn in that fashion, in that manner, in that narrow a way, is it not? Mr. WRIGHT. Yes; it was our attempt to draw it so. I don't have any pride of authorship. I shall not quarrel with the chairman or with the committee about the words that are used in drafting the legislation. Yes, Senator Bentsen and I made an earnest attempt to draw the legislation with some specificity, so as to protect and respect all con- stitutional rights of all Americans, but expressly to define as a fed- erally punishable crime the disclosure of information to which a person had gained authorized access, and then in violation of his oath to his country and in derogation of the rights of those Americans who faith- fully continue to serve the country, sought to use it to expose them and place their lives in jeopardy, and to put in jeopardy, indeed, the Nation's capacity to gather vital information. Now, we tried to draw it carefully, but I have no doubt that the committee can improve upon it. Mr. BOLAND. Your bill is a little narrower than the committee bill and also a little narrower than some of the other proposals that have been presented to the committee. Your bill would target on those who had authorized access to classi- fied information containing the identity of undercover agents and then disclose the identity without authority. The committee bill targets in on anyone, anyone who discloses it with specific intent to impair or impede the foreign intelligence activities of the United States. What do you think of the committee bill vis-a-vis your own? Mr. WRIGHT. Mr. Chairman, I would have no difficulty whatever in wholeheartedly supporting the language you have just described as contained in the committee bill. Mr. BOLAND. Thank you very much, Mr. Wright. Thank you, Mr. Chairman. Mr. MAZZOLI. I thank the gentleman. The gentleman from Illinois, Mr. McClory, is recognized. Mr. McCLORY. Well, thank you very much, Mr. Chairman. I am very pleased to know about the new directions of the Presi- dent with regard to the intelligence agencies, his present desire to revitalize the CIA and other intelligence agencies, because previously Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 he ordered the elimination of 820 positions, clandestine service cut- backs, in the CIA, and those jobs were eliminated as a result of his direction. Also in the last Congress we enacted the so-called Foreign Intel- ligence Surveillance Act, which limits and restricts the CIA in its intelligence-gathering capability by requiring that with regard to the securing by electronic surveillance of foreign intelligence, they must go to a special court and get a court order before we are even permitted to secure intelligence in this way, notwithstanding that the foreign agents can secure Intelligence against us through such means. The question that occurs to me is this : I understand that the present Hughes-Ryan Act is more limiting and more restricting with regard to securing the cooperation of foreign intelligence agents to help us, or even the willingness of some of our present intelligence agents to secure information for us, and yet the President is not, as I understand it, supporting enactment of revision of the Hughes-Ryan Act except in the context of a so-called intelligence charter. But the charter bill would further hamstring the intelligence agencies and would not liberate it from the restraints that are presently on it. I am really perplexed. I hope, and I believe from the President's state of the Union message that he is moving in new directions with regard to our national security militarily. But even more imporantly, I think our intelligence capability is more impor- tant to our national security than even our military. And I assume that what you are telling us today is that the President is in strong support of this and that he will also give support to other measures which would strengthen our intelligence capabilities. Do I understand you correctly? Mr. WRIGHT. Mr. McClory, I don't have any credentials to speak for the President. I am sure he can speak for himself and his ap- pointees can Mr. MCCLORY. But you mentioned President Carter's demand for revitalizing our intelligence agencies. Mr. WRIGHT. I think the gentleman was there the same night I was and heard the same speech. Now, I think the very last thing we would want to do, Bob, would be to turn this into a forum of partisan disagreement. Mr. McCLORY. Well, you mentioned the President and you men- tioned his support of revitalizing the intelligence agencies. Mr. WRIGHT. Yes; I think this is one way to do it. Mr. McCLORY. And he supports this measure? You assume that he supports this one? Mr. WRIGHT. I do assume that he supports this measure. I support this measure, and I am, here to speak for Jim Wright, and I am here to speak for what I perceive to be the will of the majority in the Con- gress of the United States and their desire that we have legislation of this type on which to act. I would say this, if I may, concerning President Carter. One of the first things he said to some of us in the leadership, in the very early weeks of his Presidency, at one of our meetings, was to express his great concern over leaks that had occurred in vital stategic informa- tion, and to request the creation of one committee of the Congress to Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 whom these intelligence agencies might report rather than having such a proliferation of committees with multiple opportunities for leaked information. That was one of the first things he asked us to do. Mr. MCCLORY. He has expressed his support for that? Mr. WRIGHT. Well, he did very early on, almost 3 years ago. Mr. McCLORY. Don't you think we could consider that as separate legislation without tying it in to the charter legislation which would further hamstring it? Mr. WRIGHT. As a matter of fact, it was in response to that sugges- tion that this committee was created in 1977. So the President has not been lacking in a sincere interest in protecting the integrity of the information to which the intelligence agencies are privy, nor in asking the Congress to support this kind of legislation. Mr. MAZZOLI. The gentleman's time has expired. The gentleman from Georgia is recognized. Mr. BOLAND. We indicated it would be a little controversial. Mr. FOWLER. Well, not to debate my distinguished colleague from Illinois at this time, but I do think that it ought to lie said as we begin these hearings that, in echoing the excellent pres(StAtion of the ma- jority leader, obviously this committee will be considering numerous pieces of legislation that have been offered by both bodies, which deal in strengthening the capability of our intelligence-gathering appara- tus, and that all the missiles in the world and all the defense expendi- tures in the world are not sufficient security protection if we have decimated our early warning system by what we have done to our in- telligence-gathering apparatus. I believe that this committee and the similar committee in the other body, in considering any legislation surrounding Hughes-Ryan, any legislation in rewriting the charter, the graymail legislation that we marked up yesterday to enable use to proceed judicially in areas of classified information, and this legislation, that we are all trying to get off this pendulum effect of the last decade where we swing away, swing to one side of total restrictions on our intelligence-gathering ap- paratus, to a call from some quarters to remove every restriction and almost eliminate any oversight, which could have as ill-advised an ef- fect as the other swing of the pendulum. And I think that, again, we will be able to balance in the national interest these competing interests to accomplish both purposes. And I want to thank the majority leader for his mental prowess as well as his well-known forensic and persuasive prowess. Mr. WRIGHT. The gentleman has just perjured himself. Mr. MCCLORY. Would the gentleman yield ? Mr. FOWLEi. I am trying to make it through the whole 5 minutes before the famous, the well-known McClory-Fowler debates begin. I yield to the gentleman from Illinois. Mr. MCCLORY. I just wanted to ask if you would include in the strengthening of the intelligence capability the elimination of the re- quirement to report to eight separate committees of the Congress, over 180 members plus the staffs, as an important way of securing better and more information without the danger of leaks to which you made reference? Mr. FOWLER. I would be happy to associate myself with that. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. BOLAND. And so does the President, of course. He has time and again indicated that that is his position. Mr. MAZZOLI. The gentleman's time has expired. There is another gentleman with us today, a valuable member of our committee, though not a member of this subcommittee, the gentle- man from Virginia, Mr. Whitehurst. If he wishes to ask a question within the 5-minute rule? Mr. WHITEHURST. Only to say that I am delighted to be here and pleased to see this committee take this action. I am delighted to have the great persuasive powers of the majority leader on our side on this. Mr. MAZZOLI. Mr. Majority Leader, thank you very much for your time. Mr. WRIGHT. Mr. Chairman, thank you, and good luck to you. Mr. MAZZOLI. Thank you. I think the gentleman, the acting chairman, will now exercise his prerogative in making the opening statement. The Subcommittee on Legislation meets today to receive testimony on legislation which has been drafted to address a particularly dis- turbing current practice, and that is the deliberate disclosure of the names of undercover U.S. intelligence officers and agents. Such disclosures have been on the increase in recent years and are coming at a time when an effective intelligence collection capability is as necessary to the safety, security, and well-being of our Nation as never before in our history. It goes without saying that divulging the identity of intelligence agents serves to destroy this capability. Not only are lives threatened, but legitimate intelligence collection activities are rendered useless, the careers of dedicated intelligence officers are ruined, service morale is lowered, foreign policy is dis- rupted, and the taxpayers' money is wasted. Some of the individuals who publicly identify undercover intelli- gence personnel -claim to be guided by patriotic impulses and a desire to end the illegal activities committed by the intelligence services. I cannot judge their claimed patriotism nor their claimed altruism. But I can state without equivocation that they are dead wrong; I can state that their actions damage our Nation's legitimate national security interests, and I can state that they are endangering the lives of their fellow Americans. While there are statutes on the books which deal with the subject of unauthorized disclosures of sensitive and classified information, I am persuaded that clear, specific, and effective legislation must be crafted by this Congress to stem the rampant, intentional disclosures of the identities of undercover intelligence agents. Now, I believe the bill before us today, H.R. 5615, which has been cosponsored by every member of this subcommittee, is a positive first step in developing such a piece of legislation. I am not unmindful, as has already been stated this morning, I am not unmindful of the constitutional requirements affecting this sub- ject area. These hearings will assist the subcommittee, and then, I trust, the full Intelligence Committee, to report a bill which addresses the serious problem posed by unauthorized disclosure of names of agents without impinging in any way on the constitutional guarantees enjoyed by every American citizen. In the final analysis, it is precisely Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 these guarantees which distinguish and exemplify the American way of life and which elevate it above that afforded to any people in any other nation on the face of this Earth. We will now proceed to the next witness whom we would invite to walk forward and join us at the witness table, the Deputy Director of Central Intelligence, Hon. Frank Carlucci, who will be joined by Mr. Fred Hitz and by Mr. Dan Silver of his staff. As this committee knows, Ambassador Carlucci has served his coun- try in a varied and important list of Government posts, most notably as Under Secretary of the Department of Health, Education, and Wel- fare, and as Ambassador to Portugal. . His frequent appearances before this committee make him no stranger whatsoever to this committee. We thank him for his past help, and we certainly welcome him today to speak to the several bills which we have before us. Ambassador, you can proceed in whatever manner you wish. We of course have other witnesses. You may want to summarize your state- ment, but you are welcome to read it entirely. We thank you and we welcome you. STATEMENT OF HON. FRAM C. CARLUCCI, DEPUTY DIRECTOR OF CENTRAL INTELLIGENCE, ACCOMPANIED BY DANIEL SILVER, GENERAL COUNSEL, CENTRAL INTELLIGENCE AGENCY ; AND FREDERICK P. RITZ, LEGISLATIVE COUNSEL Mr. CAMUCCI. Thank you, Mr. Chairman. I want to thank you and the other distinguished members of this committee for the opportunity to discuss legislation which I consider to be urgently needed and vital to the future success of our country's foreign intelligence collection efforts. I have with me today my General Counsel Daniel Silver, and my Legislative Counsel Fred Hitz, both of whom have been intimately involved in our efforts to obtain statutory protection for officers and employees of the intelligence community who serve under cover, and for our foreign agents and sources whose relationships with the in- telligence community are intentionally concealed. I start this morning from the premise that our efforts to collect in- formation about the plans and intentions of our potential adversaries cannot be effective in a climate that condones revelation of the means by which those efforts are conducted. Indeed, the impunity with which misguided individuals can disclose our undercover officers and em- ployees and our foreign agents and sources has had a harmful effect on human intelligence collection and other aspects of our intelligence program as well. Equally significant is the increased risk and danger such disc]o-nres pose to the men and women who are serving the United States in difficult assignments abroad. It is outrageous that dedicated people engaged or assisting in U.S. foreign intelligence activities can be endangered by a few individuals whose avowed purpose is to de- stroy the effectiveness of activities and programs duly authorized by the Congress. Mr. Chairman, recent world events have dramatically demonstrated the importance of maintaining a strong and effective intelligence ap- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 paratus. The intelligence community must have both the material and human resources needed to enhance its ability to monitor the military activities of our adversaries and to provide insights into the political, economic, and social forces which will shape world affairs in the 1980's. It is particularly important that every effort be made to protect our intelligence officers and sources. It is imperative that the 96th Con- gress clearly and compellingly declare that the unauthorized dis- closure of the identities of our intelligence officers and those allied in our efforts will no longer be tolerated. The President has expressed his determination to increase our efforts to guard against damage to our crucial intelligence sources and our methods of collection without impairing civil and constitutional rights. Legislation in this area must be carefully drafted. It must safeguard the Nation's intelligence capabilities without impairing the rights of Americans or interfering with congressional oversight. Attorney General Civiletti has recognized the need for identities legislation. Speaking earlier this month on intelligence and the law at Fordham University Law School, he said, and I quote : This is an important time to be aware that the unfinished agenda of lawmaking in intelligence includes some important items for the legitimate protection of our intelligence activities. Existing law provides inadequate protection to the men and women who serve our Nation as intelligence officers. They need and deserve better protection against those who would intentionally disclose their secret mis- sion and jeopardize their personal safety by disclosing their identities. Public comment and criticism of intelligence activities and specific operations is proper. Revealing the identities of particular intelligence personnel and placing them in danger, on the other hand, serves no legitimate purpose. Our proper concern for individual liberties must be balanced with a concern for the safety of those who serve the Nation in difficult times and under dangerous conditions. This committee and other Members of Congress have for some time recognized the inadequate protection to which the Attorney General referred. Representative Michel of Illinois and Senator Bentsen of Texas introduced bills to protect intelligence identities in the 94th and 95th Congresses respectively. Nine identities bills have been introduced thus far in the 96th Congress, including bills by Senator Bentsen and by Representative Charles E. Bennett of Florida, both of whom will be testifying at these hearings. The introduction of H.R. 5615, the Intelligence Identities Protection Act, by the entire membership of the Permanent Select Committee on Intelligence last October was, of course, an extremely significant devel- opment, and an impressive demonstration of this. committee's deter- mination to maintain the effectiveness of our Nation's foreign intelli- gence activities. Last week, the committee's bill was introduced in the Senate as sec- tion 4 of S. 2216, a bill cosponsored by Senators Moynihan, Jackson, Nunn, Chafee, Danforth, Wallop, and bomenici. I believe these efforts reflect a growing feeling that we, as a government, must come to grips with this problem and determine where the public interest lies. I do not believe there is any justification or excuse for the deliberate public dis- closure of the identities of personnel having concealed employment or other relationships with the intelligence agencies of the U.S. Govern- ment. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 The distinguished chairman of this committee eloquently expressed the essence of the problem in a recent letter to the editor of the New York Times. Chairman Boland wrote as follows : The operating heart of any service is the use of undercover agents and offi- cers overseas to collect intelligence information. Obviously, if the names of these people are spread upon the public record their usefulness is ended and the ef- fectiveness of the clandestine service is destroyed. Unauthorized disclosure of the names of undercover intelligence agents is a misguided act that serves no useful informing function whatsoever. It does not alert us to abuses ; it does not bring clarity to issues of national policy ; it does not enlighten public de- bate; and it does not contribute one iota to the goal of an educated and in- formned electorate. What it does do is place lives in danger and cripple our efforts to collect timely and accurate intelligence, the sina qua non for the ef- fective conduct of foreign affairs. Whatever the motives of those engaged in such activity, the only result is the complete disruption of our legitimate intelli- gence collection programs, programs that bear the imprimatur of the Congress, the President, and the American people. Such a result benefits no one but our adversaries. Mr. Chairman, those who seek to destroy the intelligence activities of the United States have propagated a number of fallacies. Unfor- tunately, some of these have found their way into discussions of H.R. 5615 in the press and elsewhere. One of these fallacies is that accurate identification of CIA per- sonnel under cover can be made merely by consulting publicly avail- able documents-like the State Department's Biographic Register- and therefore the bill would impinge on discussion of information that is in the public domain. This is untrue. There is no official un- classified listing anywhere that identifies undercover CIA officers. The biographic register and similar documents cannot be used, without additional specialized knowledge and substantial effort, to make such identifications accurately. It is only because of the disclosure of sen- sitive information based on privileged access and made by faithless Government employees, such as Philip Agee and John Marks, with the purpose of damaging U.S. intelligence efforts, that the public has become aware of indicators in these documents that can, and some- times do, distinguish CIA officers. This, however, is not the full extent of the problem. A substantial number of the identifications made by such avowed enemies of U.S. intelligence activity, as the publishers of CovertAction Information Bulletin, have been accurate. This indicates that they are based on extensive investigation, using many of the same techniques as any intelligence services uses in its counterintelligence effort; in effect, spying on the United States. The second fallacy is so ridiculous that I would not mention it except that it has cropped up repeatedly in discussion of this matter : That is, that someone may engage in good faith in the public disclo- sure of intelligence identities in order to improve the security prac- tice of our intelligence agencies. This is like saying that a person might shoot members of Congress for the sole purpose of strengthen- ing Capitol security by demonstrating shortcomings. Any patriotic citizen who believes that he has detected weakness in the cover arrange- ments used by a U.S. intelligence organization can serve the inter- est of improving security only by discreetly bringing that infor- mation to the attention of the organization itself, the President's In- aq-91a n - en - 2 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 telligence Oversight Board, or this committee or the Senate Select Committee on Intelligence. The third fallacy is that those who seek the destruction of the Na- tion's intelligence activities cannot be distinguished from sincere critics of the CIA or other intelligence agencies and activities. The best answer to this is the one given by Attorney General Civiletti : Public comment and criticism of intelligence activities and specific operations is proper. Revealing the identities of particular intelligence personnel and plac- ing them in danger, on the other hand, serves no legitimate purpose. It is noteworthy in this regard that the Church and Pike committee investigations, the Rockefeller Commission Report, and related press disclosures, as well as the subsequent oversight activities of this com- mittee and its Senate counterpart, all have managed to encompaV ex- tensive public and congressional scrutiny and criticism of intelligence activities without recourse to wholesale disclosure of the names of un- dercover intelligence personnel in the categories covered by H.R. 5615. I believe that this committee and the Congress will find that we need to effectively put an end to the deliberate disclosure of the iden- tities of our covert intelligence personnel for any reason. That the unauthorized disclosure of the identities of individuals engaged or assisting in the foreign intelligence activities of the United States has damaged our Nation's foreign intelligence-gathering ca- pabilities is beyond question. Obviously, security considerations pre- clude my confirming or denying specific instances of purported identification of U.S. intelligence personnel. Suffice it to say that a substantial number of these disclosures have been accurate. The de- structive effects of these disclosures have been varied and wide- ranging Our relations with foreign sources of intelligence have been im- paired. Sources have evinced increased concern for their own safety. Some active sources, and individuals contemplating cooperation with the United States, have terminated or reduced their contact with us. Sources have questioned how the U.S. Government can expect its friends to provide information in view of continuing disclosures of information that may jeopardize their careers, liberty, and very lives. Nearly all major foreign intelligence services with which we have liaison relationships have undertaken reviews of their relations with us. Some immediately discernible results of continuing disclosures in- clude reduction of contact and reduced passage of information. In taking these actions, some liaison services have explicitly cited disclo- sures of intelligence identities. We are increasingly being asked to explain how we can guarantee the safety of individuals who cooperate with us when we cannot pro- tect our own officers from exposure. You can imagine the chilling effect it must have on a source to one day discover that the individual with whom he or she has been in contact has been openly identified as a CIA officer. The impact in this regard is twofold : First, there is a substan- tial adverse impact on the Agency's ability to collect intelligence, sec- ond, some of our foreign sources who must remain in place in spite of the disclosure may be subject to severe sanctions. The professional effectiveness of officers so compromised is substan- tially and sometimes irreparably damaged. They must reduce or break Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 contact with sensitive covert sources. Continued contact must be cou- pled with increased defensive measures that are inevitably more costly and time consuming. Some officers must be removed from their assign- ments and returned from overseas at substantial cost. Years of irre- placeable area experience and linguistic skill are lost. Reassignment mobility of the compromised officer is impaired. As a result, the pool of experienced CIA officers is being reduced. Such losses are deeply felt in view of the fact that, in comparison with the intelligence services of our adversaries, we are not a large organization. Replacement of officers thus compromised is difficult and in some cases impossible. Once an officer's identity is disclosed, moreover, counterintelligence analysis by adversary services allows the officer's previous assignments to be scrutinized, producing an expanded pattern of compromise through association. Such disclosures also sensitize hostile security services and foreign populations to CIA presence, making our job far more difficult. Finally, such disclosures can place intelligence personnel and their families in physical danger from terrorist or violence-prone organizations. Mr. Chairman, I am prepared to discuss in executive session indi- vidual cases which exemplify the damage done to our intelligence- gathering capabilities. Most significant, however, is the fact that the collection of intelligence is something of an art. The success of our officers overseas depends to a very large extent on intangible psycho- logical and human chemistry factors, on feelings of trust and confi- dence that human beings engender in each other, and on atmosphere and milieu. Unauthorized disclosure of information identifying indi- viduals engaged or assisting in foreign intelligence activities destroys that chemistry. While we can document a number of specific cases, the committee must understand that there is no way to document the loss of potential sources who fail to contact. us because of lack of con- fidence in our ability to protect their identities. In a time when human sources of intelligence are of critical impor- tance, there can be no doubt that unauthorized disclosures of the iden- tities of our officers, agents and sources constitute a serious threat to our national security. Current law has proved to be inadequate in deterring these un- authorized disclosures, and they continue to be made with virtual im- punity. The net result is a damaged intelligence capability and reduced national security. Mr. Chairman. I believe that legislation in this area. to be effective, should contain certain key distinctions and elements. First, it should hold current and former employees and others with authorized access to protected information to a, higher standard than persons who have not had such access. Such individuals. because of their employment re- lationships or other positions of trust, can legitimately be held ac- countable for the deliberate disclosure of any identity they know or have reason to know is protected by the United States. Second. the legislation should require proof that a disclosure is made with culpable knowledge. or with knowledge of sufficient facts to make the average person aware of the nature and gravity of his actions. This is an important element because it must describe a state of mind which will support the attachment of criminal sanction, while at the same Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 time be capable of proof in those disclosure cases which have been dam- aging. If a person discloses a protected intelligence identity with knowledge or reason to know that the United States takes affirmative steps to conceal the intelligence relationship involved, that person has acted with culpable knowledge. This knowledge can be demonstrated when the person making a disclosure states awareness that a cover em- ployment or other concealed relationship is involved. Finally, a statute should require proof that unauthorized disclosures by those who have not had an employment or other relationship of trust with the United States were made with the specific intent to im- pair or impede the Nation's foreign intelligence activities. This re- quirement would be for the protection of those who might claim they have made a public disclosure for a legitimate purpose although I be- lieve Congress should determine if there are any such purposes and make provision for them. For example, if the Congress finds that current. requirements and procedures for reporting allegations of illegal or improper activity by intelligence employees may not be sufficient to discover such an ac- tivity, it could provide in statute for direct reporting to the Congress, or to the Attorney General, or even to the President. In this way it could be made clear that there is no justification for the public dis- closure of protected intelligence identities. In my view, H.R. 5615 goes a long way toward meeting these cri- teria. It is a carefully drafted, crafted and narrowly drawn measure which comes to grips with the full extent of the problem. The com- mittee's bill would go far toward safeguarding vital intelligence capa- bilities without impairing the rights of Americans or interfering with congressional oversight. In the opinion of the Agency's lawyers, the bill would make possible prosecution of those who seek to destroy the intelligence capabilities of the United States, while leaving untouched legitimate criticism of the intelligence community or its activities. There are, however, several improvements to the bill which I would urge you to make. First, the Department of Justice, in its comments on the bill, has suggested that persons who are not present or former intelligence employees should be covered whenever the disclosure is based on classi- fied information. We do not think that this formulation would ade- quately cover all cases, since in many of the most ezregious current cases, a nexus to classified information would be difficult to prove be- yond a reasonable doubt. Thus, I cannot support this formulation as a substitute for section 501 (b). On the other hand, I am persuaded by the Justice Department's arguments that there may be some cases in which the specific intent to impair or impede U.S. intelligence activi- ties would be difficult to prove, but in which a nexus to classified in- formation would not. In order to provide full coverage, therefore, I would propose that section 501(b) be revised to provide two alterna- tive bases for liability. One would be the disclosure with the specific intent to impair or impede the foreign intelligence activities of the United States; the other would be the disclosure of identities based on classified information. A second area requiring improvement relates to the prosecution of accomplices and conspirators. As now drafted, H.R. 5615 would bar Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 such prosecution in all cases unless the alleged accomplice or conspira- tor possessed the specific intent to impair or impede the Nation's for- eign intelligence activities. I understand and agree with the advis- ability of requiring such a specific intent in the case of an accomplice or conspirator to violate section 501(b) of the bill. On the other hand, I see no reason to immunize persons who assist or conspire with current or former employees or others having authorized access to classified information in the commission of an offense under section 501(a). With respect to this latter group of accomplices and conspirators, there should not be a specific intent requirement. H.R. 5615 does not cover disclosure of the identities of former officers or employees of an intelligence agency or members of the Armed Forces formerly assigned to duty with an intelligence agency. To be effective, the legislation should extend to these categories of persons. Many officers and employees retire or are separated under cover for a variety of reasons. Disclosure of their former intelligence agency affili- ation may place them or their families in physical danger or may sub- ject them to harassment or threat of bodily injury. Moreover, there are very real counterintelligence reasons for maintaining cover. In many instances, the individual's contacts and sources may still be in place and active. Such a network may have been passed on to the former officer's successor. Should the former individual's relationship be re- vealed, the entire network may be compromised. Accordingly, in those cases where such relationships remain otherwise concealed and where the United States continues to take affirmative measures to keep them concealed, unauthorized disclosures should warrant attachment of criminal liability. Mr. Chairman, there is a pressing need for effective legislation to discourage unauthorized disclosures of intelligence identities. The credibility of our country in its relationships with foreign liaison services and agent sources, the personal safety and well-being of patriotic Americans serving our country, and the professional effec- tiveness and morale of our country's intelligence officers are all at stake. As matters now stand, the intentional exposure of covert intelligence personnel with impunity implies a governmental position of neutral- ity. It suggests that U.S. intelligence officers are fair game for those members of their own society who take issue with the existence of CIA or find other perverse motives for making these unauthorized dis- closures. Specific statutory prohibition of such action is critical to the maintenance of an effective foreign intelligence service. It is impera- tive that a message be sent that the unauthorized disclosure of intelli- gence identities is intolerable. I sincerely appreciate your genuine concern about our intelligence capabilities and wholeheartedly support your efforts to deal with this serious problem. I encourage you to proceed to report legislation that will provide an effective remedy. I believe effective legislation to pro- tect intelligence can and should be made a key part of the founda- tion for the revitalization of our Nation's foreign intelligence capabilities. We have supplied the committee with some suggested drafting changes in H.R. 5615. Mr. Silver and Mr. Hitz and I will be happy to Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 18 discuss these matters in greater detail or to answer any questions you may have on them. Thank you, Mr. Chairman. Mr. MAzzou. Thank you very much, Mr. Ambassador. You were here this morning when our majority leader spoke on be- half of his bill, on behalf of this whole subject area, and you heard him say that this was a very important part of the Democratic agenda for the second session, it was a bill to which the President had committed his support. And, of course, there was a lot of discussion back and forth and using terms, "outrageous" and "unconscionable" and this sort of thing, and I wonder, are we overstating the case? Are we overkilling here? Could you as a professional member of your organization have stated the case as persuasively as you did this morning half a year ago or a year ago? Ambassador CARLUCCr. Mr. Chairman, let me say that first of all, I am not a professional CIA man'. I have been with the organization a little over 2 years. I am a professional foreign service officer who has dealt with the organization for some 20 years. And I think I under- stand it fairly well without being an integral part of it. I think it is fair to say that since I have been in the CIA at least there is nothing that has been more damaging to morale and to the effectiveness of the Agency than this kind of activity, that is to say, the unauthorized disclosure of the identities of our CIA personnel and their agents. I had some personal experience when I was Ambassador to Portugal. I watched one of these so-called exposes name people in the Embassy that I then headed. Not only did they name them, but they provided the addresses and such details as "second apartment to the right after you get off the elevator," a clear incitement to violence. I watched the careers of able and dedicated officers being ruined. We had to transfer people. Sources began to dry up. Since I have been with the Agency I have seen this occur around the world. I happened to arrive in one country on a trip about 7 or 8 months ago and was greeted at the airport by a young officer who had that very morning been exposed in one of these so-called bulletins, CovertAction Information Bulletin. He was an able young officer who had worked for 8 or 10 `ears to conceal his identity. He had valuable assets in the country. All of that was now worthless. His assets were unwilling to have contact with him. He would have to be transferred, his career potential clearly diminished. We have had cases where Ambassadors have said, we cannot accept this assignment because this person has been exposed. Clearly this has been highly damaging to our intelligence capabil- ity overseas. It was damaging 2 years ago. The longer it goes on, the more damaging it becomes. Mr. MAZZOi r. Mr. Ambassador, you have your legal expert with you. Perhaps you could address this question, or perhaps he could. Can current law-and there is a range of statutes on the books today which deal with unauthorized disclosures and sensitive information-do the job today, properly enforced? Ambassador CARLUCCI. I will ask my legal expert, General Counsel Mr. Silver, to address that in detail, but let me just make a comment. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Since I have been with the Agency we have held detailed discus- sions, lengthy discussions with the Department of Justice in an effort to cope with this situation under current law. We have looked at the possibility of criminal suits. we have looked at the possibility of civil suits, and while in some cases that may be theoretically possible, I think it is fair to say that as a practical matter, current law does not enable us to get at these activities. But let me ask Mr. Silver to address that in more detail. Mr. SILVEn. I can't really add very much to what Mr. Carlucci has said. I think the proof of the issue is the fact that despite valiant ef- forts on our part and on the part of the Department of Justice, we have not found a practical way to apply the current statutes on the books, whatever their theoretical coverage may be, to the situation we face. Certainly, looking at H.R. 5615, there is a portion of the activity covered there that seems to me clearly to be covered under present law, but the statute would remove some difficulties of definition and inter- pretation that now exist. There is another area'of activity, that covered by section 501 (b) that it would be very difficult to apply current law to, but which is, from our point of view, an extremely serious problem. Mr. MAZZOLI. Well, my time has expired, and we perhaps will have time for a second round of questions. The gentleman from Massachusetts, Mr. Boland. is recognized. Mr. BOLAND. Mr. Carlucci, I want to thank you for what I think is an exceptionally fine statement in this area. If anyone knows what the problems are with respect to the intelligence community, the Director of Central Intelligence and his Deputy of course, recognize it better than most people. You have had extensive experience in the Government. You have served with distinction in a number of capacities. I presume that one of the most important ones with respect to the problem that we have before us today was being Ambassador to Portugal, and I presume that in many, many instances you had contacts with our agents, chiefs of stations in various countries and particularly in the country that you served as Ambassador, and because of that, I presume you have a more definitive recognition of the danger to the collection of intelli- gence when names of agents are disclosed. Did I hear you say that there was information with respect to agents or assets or chiefs of stations that was disclosed in the countries where you served as Ambassador? Ambassador CARLUCCI. Yes; there was the so-called expose of CIA personnel in Portugal when I was Ambassador there. Mr. BOLAND. How serious an impact was that on our ability to collect intelligence? And that was a very important area at that time, at the time you were serving there. Ambassador. CARLUCCI. Mr. Chairman, it is difficult for me to go into detail in public session. Let me say that it had a significant impact on our ability to collect intelligence. We had to rotate a number of people. That, of course, has an impact on their sources of information, when somebody new has to come in. Let me also say that the identifications that were made in this instance were not 100 percent accurate, and that people who were not Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 intelligence officers were implicated, and that was damaging to their careers as well. Mr. BOLA\D. In your statement you take pains to point out that names of agents cannot be gleaned'from merely reading biographic registers and other lists. You state that it also takes extensive investi- gations, interviews, and other techniques. Of course, you recognize, as all of us do, that it is not illegal to engage in these latter activities which are open to any member of the public. Now, my question is twofold. Isn't it true to say that some names of intelligence agents can be obtained, can be obtained from publicly available sources without the use or disclosure of classified information? Ambassador CARLUCCI. The names, per se, cannot be obtained from any single individual source. If I may, this is a very important point, Mr. Chairman, and let me elaborate on it. I said in my statement that what is involved here is essentially spying on the United States. There are groups who are engaged in fairly sophisticated counterintelligence techniques. These techniques involve gathering information from a wide variety of sources. Much of the information that any intelligence agency gathers is unclassified at the outset. It is only when it is put together with other pieces of information and certain conclusions drawn that it becomes classified. Now, using sophisticated techniques, people can try and identify the location in the embassies, look at travel orders, look at the pattern of assignments, try to obtain embassy telephone books, try to obtain copies of the "States Department Biographic Register," which is now a classified document, look at individuals' personal backgrounds, indeed, maybe even look at their patterns of activities in a given country; using all of these techniques, most of which would be from unclassified sources, they can *come to a logical conclusion, not with 100-percent accuracy, but with substantial accuracy. So what we have involved here is not somebody simply going to the Library of Congress and opening a book and seeing John Doe has a certain designator therefore he is a CIA man. What we have are people who have developed highly sophisticated techniques, which in some cases have been learned within the Agency, and are applying these techniques to impede the effective activities of our intelligence agencies. Mr. MAZZOLL. The gentleman's time has expired. The gentleman from Illinois, Mr. McClory. Mr. FOWLER. Would the gentleman yield for a followup question, and then I will give you some of my time. Mr. MCCLORY. Certainly I will yield. Mr. FOWLER. Mr. Ambassador, is the Agency asking us to legislate as illegal the activity that you describe, no matter how sophisticated and how deductive in its reasoning, if that information was gleaned solely from unclassified sources? Ambassador CARLUCCI. We are asking the committee to legislate as illegal activity which pinpoints the names of our personnel or our agents when affirmative steps have been taken to conceal their identity, and when we can prove an intent to impede the intelligence activities of the United States. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. FowLER. Well, the key to that would be, would it not, what constituted the intent then ? Ambassador CARLUCCI. That is correct; we would have to demon- strate intent. Mr. MCCLORY. Why don't you continue and I will take the next 5 minutes. Mr. FOWLER. Just to follow that through, do ,you want to describe to us what you foresee as the criteria to prove intent, when the defend- ant could show that all sources from whence the revelation came were gleaned from unclassified material? Ambassador CARLUCCI. Well, activities, such as are contained in this publication called CovertAction Information Bulletin, are avowedly for the purpose of impeding the intelligence collection activities of the U.S. Government. Mr. FOWLER. I don't think there would be any question about that, but let's say I am a jackleg reporter for a great metropolitan news- paper, and I decide that I want to-that I see somebody engaged in what I think to be suspicious activity, for whatever reason, maybe after a narcotics bust, or I may be after a spy in my hometown. But I go and ask some questions of the military and find from public docu- ments where he has served; I can trace pretty much in an unclassified manner where he has served in the Army and what Government posts he may or may not have had. I could follow him around for a while and see that he wears trenchcoats and went to strange places after hours, even took notes on rolled-up Time magazines, and I put to- gether-I am not really being facetious, but as a good investigative reporter, I might then conclude that this man was a spy and write that in a story, that such and such, in my opinion, was a spy for the Soviet Union. And maybe I just happen to be right. Could I be prosecuted under the legislation that you are Ambassador CARLUCCI. Well, certainly not for identifying some- body who is a spy for the Soviet Union. We don't- Mr. FOWLER. I'm sorry; the other way around, a spy for us. Ambassador CARLUCCI. Well, if you identify him as an employee of a U.S. intelligence agency-first of all, I would go back to my orig- inal comment that it seems to me there is no redeeming social purpose in doing this. It doesn't help with the oversight process, and if some person believes there is an abuse being created, there are plenty of chan- nels to report those abuses, including this committee. Mr. FOWLER. Let me interrupt you, Mr. Ambassador, because we all agree, as you know, on the need to protect our sources and our agents, but with the Agency coming in and asking to legislate, the question that I think is going to have to be determined is whether or not in the unclassified field, whether the remedy is in the legislative branch or in the Agency to tighten its own procedures. But under the examples again, that has to be dealt with specifically. whether or not a journal- ist, in reporting what he perceives to be intelligence-gathering activity by an employee of our Government which all could be gleaned from unclassified sources, whether you are asking/us that that ought to be legislated a violation of the security laws of our country. Ambassador CARLUCCI. Mr. Fowler. I am not a lawyer, and I will ask our General Counsel to address this. It seems to me that in, the Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 example that you have described, if somebody were to publish one newspaper article saying I think John Doe may work for the CIA, and there is no evidence in that article of intent to impede or impair the intelligence activities of the U.S. Governmment, that that would not fall under the legislation as we interpret it. However, if this individual should embark on a crusade which, the purpose of which is obviously to impair the effectiveness of our intel- ligence activities, say, he should visit 10 or 20 other cities and go over- seas and conduct a counterintelligence operation on a crusade to iden- tify the names of CIA personnel or their agents, then I think that would be a different thing and it would fall under the statute. Let me ask Mr. Silver to address it in some detail. Mr. SILVER. I would like to make one comment, and that is to draw an analogy to statutes that are on the books that prohibit such things as the photographing of fortifications, passage of information about the movements of troops, and a variety of other things in time of war that are not in themselves classified. You cannot classify the external appearance of a U.S. Government facility that anyone can see. Those statutes have an element, and that is the specific-intent element, and it is that very element which courts have relied upon to determine that those statutes are constitutional. It is, from my point of view as a lawyer, clear to me that without a specific-intent element, a statute that applied to someone who dealt only with unclassified information and phenomena would have serious constitutional problems. But this bill, which your committee has very carefully drawn, avoids those problems and I think would be completely inapplicable in the example that you cite. Mr. FowLER. My time has expired, Mr. Chairman. Mr. MAZZOLL. We will have a second round. Mr. FOWLER. Let me conclude my thought. As you all know, we are all cosponsors of this legislation. We see the need for it and we just have got to be very careful that we don't-especially with these new amendments that you have added in the unclassified field-that we are not crafting this legislation specifically to deal with the Agee problem and the Agee problem alone, because that is a blatant, obvious example, and I would like to pursue that further. Mr. MAZZOLI. The gentleman from Illinois is recognized for 5 minutes. Mr. MCCLORY. Thank you, Mr. Chairman. I want to commend personally and publicly Mr. Carlucci for his distinguished and his courageous and effective service. I did have the opportunity to visit with Mr. Carlucci in Portugal at the time when he was serving our Nation there, and I have personal knowledge of his tremendous and important service to our Nation, and I am grateful indeed that we have von. Mr. Carlucci, in the position in which you are now as the Deputy Director of CIA. Ambassador CARLL'CCT. Thank you, Mr. McClory. Mr. MCCLORY. I am also encouraged by the statement from the majority leader, and I am clad to know about the Democratic priority which is being placed in this area. I would say that President Carter appears to be adopting positions which the Rerublicans and which I have been advancing for several years, and there seems to be an Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 awareness of the great danger militarily which we are experiencing now which apparently he wasn't fully aware of before. But the point that concerns me now is with regard to these new directions to strengthen our intelligence agencies and their capabili- ties. Is the administration giving you support? Are you-we have a divergence of points of view here which are being presented this morning on the part of the Department of Justice and the CIA, and I would like to know, where is the administration position? Where is the administration backing? That seems to me to be extremely important as far as our action is concerned. Ambassador CARLUCCI. Mr. McClory, let me say that the administra- tion recognizes this as a very serious problem. I have on a number of occasions heard the President address himself to it. We also recognize, as Mr. Fowler has pointed out, that there are sensitive issues at stake here, first amendment rights, and that the legis- lation has to be well crafted. We have some differences with the De- partment of Justice as to the best way to approach this problem. We naturally happen to think our approach is more effective, but we think that this committee which has the basic responsibility for report- ing the bill, ought to hear both points of view and reach its own conclusion. Mr. MCCLORY. You feel, do you not, that it is vital that we include persons outside the Central Intelligence Agency, outside of your agency in this legislation? Ambassador CARLUCCI. Yes, sir, I do. Mr. MCCLORY. Now, I wonder about this. Since you do work with the FBI as far as counterintelligence is concerned, certainly wouldn't it likewise be important for us to have the FBI covered so that their covert operations, their persons operating under cover would be pro- tected by the same legislation ? Ambassador CARLUCCI. Mr. McClory, the FBI will have to speak for itself, but we in the CIA would have no objections or problems with that. Mr. MCCLORY. Now, with respect to section 505(6), you feel, do you not, that that can be changed as you have indicated in your testimony. How do you feel about it being changed to include members of the business. community who travel overseas and who share information with the CIA upon returning to the United States? Ambassador CARLUCCI. You are talking about the definitions? Mr. McCLoRY. This would be people outside of the intelligence community. Ambassador CARLUCCI. Agent, informant, and source of operational assistance. Mr. MCCLORY. Just people, American people, but they share infor- mation and they do it covertly. Ambassador CARLUCCI. I personally wouldn't have any problem with that. It would seem to us that people in the United States such as businessmen who cooperate with us-and that cooperation is very valuable-are not exposed to quite the same degree of risk as people overseas, but should the committee want to include them, that would not trouble us at all. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. MAZZOLI. The gentleman's time has expired. I think we have time, and since the Ambassador is very important to the legislation, does the gentleman from Massachusetts have a followup question? Mr. BOLAND. Yes; paralleling the question I asked with reference to the obtaining of information without disclosing classified material, you indicated that through sophisticated mechanisms and brilliant investigative reporting, it is possible to pick up information which may be in the public domain. I don't take it that you would consider it to be in order to consider it a crime to disclose what was obtained from public sources? Ambassador CARLUCCI. Well, I am not sure of the burden of your question, Mr. Chairman. If an individual puts together from public sources information that leads to the identification of agents or CIA personnel overseas, and once again, we can prove intent to impede or impair the effectiveness of our intelligence collection activity, then I would favor it being included. Mr. BOLAND. Well, that puzzles me a little bit. It seems to me that what you are saying is that the investigative reporter or the statis- tician or the person who uses sophisticated techniques to put together all this information, that he ought to be, in putting together an indica- tion that a particular agent or chief of station is a member of the intelligence community, that after all of what he has done he comes to this conclusion, but he has picked it all up from public sources, I take it that you think that Ambassador CARLUCCI. May I pose an extreme example, Mr. Chair- man, just to illustrate the point? Supposing you have an embassy in country X, and a group of mis- guided people wants to identify the CIA people in that embassy. They could conceivably take a number of people and put them in that country and follow some of the people they suspect on all their activities- physical surveillance, so to speak. They might even arrange for some electronic surveillance. None of that would be classified. But over a period of time they could conclude that the pattern of activities was such that this individual worked for the CIA. There would be a clear intent here to impede or impair the intelligence collection activities of the T.S. Government. I think the bill ought to cover that kind of activity. Mr. BOLA-\D. Well, that is an area that we have to wrestle with, of course. But in any event, I am glad to get your opinion on it. Ambassador CARLLCCI. If I may, Mr. Chairman. I think possibly you and I are talking at cross purposes here because we are satisfied with the basic structure of the committee bill, H.R. 5615. as regards people who expose CIA personnel and a(Tents when there is an intent to conceal that identity by usinn unclassified information, and I would underscore that here the committee draft reouires the proof of intent to impair the intelligence activities of the T.S. Government. Mr. BOLAND. I understand that; but whether or not it is in the committee bill, should it be a crime to disclose what was obtained from public sources? Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 25 Ambassador CARLUCCI. If the U.S. Government is taking affirmative steps to conceal the identity of those individuals, and if there is an in- tent to impair or impede the intelligence activities of the United States, we would favor making it a crime, yes, sir. Mr. BOLAND. Thank you, Mr. Carlucci. Mr. MAZZOLI. The gentleman's time has expired. Let me take my additional time here at this point and refer you, Mr. Ambassador and Mr. Silver, to page 18 of your statement where you suggest that if Congress finds that current requirements and pro- cedures for reporting allegations of illegal or improper activity by in- telligence employees may not be sufficient to discover such activity, it, the, Congress, could provide in statute for direct reporting to the Con- gress, or to the Attorney General, or even to the President. In this way it could be made clear that there is no justification for the public dis- closure of protected intelligence identities. Would it be, your feeling and is there any basis in law for suggest- ing that if we were to put something like this in a bill, reaffirming the intent of Congress to provide an avenue for the appropriate dis- closure to the authorities or to Congress where wrongdoing is taking place, where overreaching has occurred, that that would then make the burden of proof of suggesting an intent to impede or impair na- tionsi security a little easier to make, and a little more clear cut, and would satisfy some of the problems you see developing in 501(b) ? Ambassador CARLUCCI. As a nonlawyer, it would seem to me that it would, but let me defer to the lawyer. Mr. SILVER. Well, there is another provision in the bill that pro- vides that the mere fact of disclosure cannot be used as a basis for drawing an inference of intent. so I think even with the change that you have suggested. Mr. Mazzoli, the Government would have to find some additional evidence of intent other than the mere act of dis- closing, but we would heartily endorse any measure that makes it clear that the purpose of this legislation is not to cut off or stifle criticisms or exposure, through appropriate channels, of alleged impropriety. Mr. MAZzoLI. I guess what I am driving at, if you offer one avenue for people who have right-minded concerns about where our intelli- gence agency is going, and that avenue is not pursued, then the pur- suance of the other which leads to disclosure of names would then not alone be intent, but would certainly evince something about the per- son's intent. Would that be a fair statement, from a lawyer's standpoint? Mr. SirvF.R. I think that would be correct. Mr. M AZZOra. I thank you, and my time is expired. The gentleman from Illinois, 5 minutes. Mr. MCCLORY. Thank you. I don't know that I need 5 minutes, but I would like to get some good support for a couple of things that I covered before, and one is : Do I understand you would support amendments that would include the FBI? Ambassador CARLUCCI. I indicated that the FBI would have to speak for themselves, but we would have no problem with them, and my ow,. iudryrn-nt. would he that it is perfectly appropriate. Mr. MrICLORY. And. likewise. I am swaree that there have been tre- mendous pressures to exclude journalists from cooperating with the Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 CIA. And, I think representatives of multinationals are very wary now because if they cooperate clandestinely, this fact could be blown and it would do damage not only to their company and their careers but even to our country. So could I get a clear under- standing from you that where business personnel or any other person-including journalists, for that matter, I don't care who the individual is, an American presumably-cooperates with you to pro- vide information covertly, without the identity being known, should not that individual citizen-he may not be paid, may not be an actual informant, but he is a source of information vital to our country, he is a volunteer-but should not he be protected by this legislation just as, well as a CIA agent operating under cover, or a former agent, or whomever it happens to be that is otherwise covered in the legislation? I would like to have your support of that proposition. I think it is important to the American people. I think it is important to you get- ting cooperation from these kinds of individuals who, in my view, can be so extremely helpful. Ambassador CARLUCCI. I would agree to their inclusion in the bill, Mr. McClory. Let me point out, though, that with regard to the coop- eration of the American business community, it is not the exposure of United States-of identities that has been a problem as much as it has been the Freedom of Information Act, and of course we can address that in another forum. Overseas, this kind of activity, exposure of identities, has had very pronounced impact. It has had less impact on cooperation with American citizens here. But subject to review by our lawyers, I would certainly see no harm, and I would see some benefit in including it. Mr. MCCLORY. Well, I agree with you entirely; I think we need to amend the Freedom of Information Act, too. I think it is just out- rageous that foreign agents are getting information by virtue of that legislation, and that convicted felons are getting information about the informants or witnesses against them and such things, so that I am sure we should do that; plus, of course, amendment of the Hughes- Ryan Amendment and other measures. So in a sense this is just a start. We have got a lot to do in order to revitalize and strengthen the CIA so that it can do the full, necessary job we need for our national security. Ambassador CARLUCCI. I agree, Mr. McClory. Mr. MAZZOLI. The gentleman's time has expired. The gentleman from Georgia is recognized for 5 minutes. Mr. FOWLER. Mr. Ambassador, while you are reviewing with your competent lawyers the suggestion of my friend from Illinois, the way I hear Mr. McClory's suggestion-and I would not impugn his mo- tives, I know we are all trying to protect, again, our sources and our agents-but what I heard from that suggest ion which you are going to review with your lawyers, is that an American businessman, who has never had any contact with the CIA, could care less about Ameri- can intelligence, who happens to stumble upon the fact in country X, or somebody tells him or he hears it at a dinner party. that employee X of an American company abroad has a contract in the CIA, if our man just picks this information up casually and reveals it, he could be prosecuted. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Ambassador CARLUCCI. No; I think you misunderstood the intent of Mr. McClory's suggestion. I think his suggestion is directed at pro- tecting the exposure of an American businessman who cooperates with the CIA. That is to say that they would be entitled to the same pro- tection as an agent of ours overseas. Mr. FowLER. No ; I am right, because under the legislation what you are proposing is the mere fact of his disclosing the name of the man that has the contract with the CIA. Ambassador CARLUCCI. No; I respectfully disagree, Mr. Fowler. Mr. FOWLER. Well, correct me where I am wrong. That is all I am trying-I am not cross-examining you. The statute says if you reveal the names of our agents overseas. Ambassador CARLUCCI. But Mr. McClory was talking about in- cluding U.S. persons in the definitions category. Mr. FOWLER. Well, let's leave Mr. McClory out of it for a minute. Ambassador CARLUCCI. Section 505(6) ? Mr. FOWLER. Another example : If I casually find out at a dinner party-I am an American businessman; I go to country X and I hear this and then I mention it: I am revealing the name of a man that has a contract with CIA. Could I be prosecuted? Ambassador CARLUCCI. Once again, that would depend, once again, on two factors, Mr. Fowler. It would depend on whether you were aware that the U.S. Government has taken affirmative steps to conceal that relationship, and second, it would depend on your intent, or the intent of that businessman. And if the intent is to impede or impair the intelligence collection activities of the U.S. Government, then yes; he would be covered by the statute. Tf he is casually revealing it as cocktail party gossip, I think that is deplorable, but it would certainly not be covered under the statute. Mr. FOWLER. All right, let me leave that for a second just for the sale of time. How difficult would it be, do you perceive it to be, for the Govern- ment to prove an intent, to quote the statute, "to impair or impede the foreign intelligence activities of the United States," if the accused is a journalist? Ambassador CARLUCCI. I think with regard to journalists, that is it very substantial threshold, but let me defer to my General Counsel. Mr. SILVER. I would think-it depends what you mean by journalist. Anyone who cranks out multiple copies of the same piece of paper could be characterized as a journalist. Mr. FOWLER. Just for the sake of argument, take the New York Times and the Washington Post. Mr. SILVER. If you take the New York Times and the Washington Post, in my judgment it would be virtually impossible to prove such an intent, absent circumstances that, as far as I am aware, do not exist, that is, if the journalist in question were to go around the com- munity boasting of the fact that he was on a personal vendetta or crusade against the Agency. yes, that would provide evidence from which his intent could be derived. Mr. FOWLER. Well, a lot of people-again. I am playing devil's advocate. There are a lot of people who think that there ought not to be any foreign intelligence activity by this country. period. They are protected in that opinion by the Constitution of the United States. Approved For Release 2008/10/31 : CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003ROO0200080008-0 If a journalist happens to be one of those and publishes articles, again based on unclassified information, I assume that you could make a case that that would show intent to impair or impede the foreign intelligence activities of the United States, especially when he says we ought not to have any foreign intelligence activities. Ambassador CARLUCCI. Well, in fact, people who purport to be journalists are doing just that under CovertAction Information Bul- letin. Anybody can pick up the rubric of a journalist by writing a few articles. If that is what you are talking about, I question whether re- sponsible news organizaions such as the New York Times or the Wash- ington Post, which we were discussing-they would have to speak for themselves, but I question whether they would embark on some kind of a crusade deliberately to impede or impair the intelligence activities of the United States. Mr. MAzz0LI. The gentleman's time has expired, and Ambassador Carlucci, we thank you very much for your time. We would like to welcome at this time our next witness, Associate Deputy Attorney General Robert Keuch. Mr. Keuch, you may come forward with any of your associates you may have. I might say that Mr. Keuch, like Ambassador Carlucci, is certainly no stranger to the committee. He has informed us and enlightened us on many other occasions, and the gentleman has been with the Depart- ment of Justice since 1960, and most of the years in the Criminal Divi- sion, and again, you have helped us on many of our bills, including our foreign intelligence wiretap bill of last year. We welcome you and solicit your information on these bills before us today. STATEMENT OF ROBERT L. KEUCH, ASSOCIATE DEPUTY ATTORNEY GENERAL Mr. KEUCH. Thank you, Mr. Chairman. Mr. Chairman and members of the select committee, I am pleased to have the opportunity to testify today on the select committee's pro- posed Intelligence Identities Protection Act. The Department of Justice strongly supports the passage of legis- lation to provide new criminal penalties for unauthorized identifica- tion of the covert intelligence agents and sources who serve this country overseas. A strong foreign intelligence capability is essential to the national security of the United States. The quality of our intel- ligence gathering will be measurably diminished unless we can pre- vent unauthorized disclosure of the covert intelligence roles of our agents and sources. Such disclosures not only impair our foreign intelligence and counterintelligence activities, but can expose indi- vidual agents and sources to physical danger. Accordingly, the De- partment of Justice supports the passage of legislation to prevent unauthorized disclosures and to provide appropriate punishment when such disclosures do occur. It is our opinion that the knowing disclosure of the identity of a covert intelligence agent or source of the Central Intelligence Agency or a foreign intelligence component of the Department of Defense Approved For Release 2008/10/31: CIA-RDP85-00003ROO0200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 29 knowingly based on classified information constitutes a violation of the current espionage statutes found in title 18, section 793(d) and (e). However, the passage of an act dealing specifically with the disclosure of covert identities will be an aid to effective law enforce- ment because the Government will be able to avoid several hurdles which exist in prosecutions brought under the present espionage statutes. The select committee presently has under consideration H.R. 5615, a bill introduced by Chairman Boland and the other members of this committee. The Department of Justice has developed its own pro- posed bill, a copy of which is attached to my prepared statement. We believe the Department's bill will serve the same end as H.R. 5615, yet avoid some areas of controversy and unnecessary difficulties for effective prosecution which the House bill might present. A brief introduction to the Department's bill is probably the best' way to start the discussion. The Justice Department bill would create two new offenses. The first, section 801, would prohibit the knowing disclosure of information correctly identifying covert agents by any person acting with knowledge that the disclosure is based on classified information. This provision would cover persons whose access to such information was unauthorized, as well as those who had authorized access. It includes within its prohibition the identification of any covert agent, employee, or source who is currently serving outside the United States or has so served within the last 5 years, and would cover unauthorized disclosures by any American citizen or permanent resident alien, even if made abroad. A penalty of up to 10 years and $50,000 fine can be imposed for each offense. There is an "attempt" pro- vision to permit punishment of those persons who have taken any sub- stantial step toward knowing disclosure of identifying information with knowledge of its classified source, even though they are detected before completing the offense. This part of the Justice Department bill would extend to classified covert identity information the same protection against disclosure currently provided under Federal law for classified communications intelligence information and cryptographic intelligence information. See 18 United States Code section 798. It removes any question about the covered means of disclosure which might arise under the espionage statutes currently applicable to identify information in the aftermath of the Pentagon papers case, and will make it crustal clear that pub- lication in a newspaper or book is as much prohibited as any other means of communication or transmission. And of course, I am refer- ring to the New York Times V. United States opinion at 403 United States Reports 713, and Justice Douglas and Justice White's concur- ring opinions. Finally, it would eliminate the need for the Government to demon- strate that the identity information revealed, in each particular case is related to the national defense and could be used to the detriment the United States or the benefit of other nations. The Department's bill contains a second provision, section 802, which provides additional protection against identity disclosures by imposing a powerful constraint on the class of current and former Gov- ernment employees who have ever had access to information concern- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 ing covert identities in the course of their employment. Such access can engender a special expertise in discerning how covers are arranged and a special authority and credibility when the employee speaks in the public area concerning intelligence activities. These persons would be prohibited from making any disclosures of agents' or sources' iden- tities to unauthorized persons, even if the particular disclosures were based purely on speculation or publicly available information. This new restriction on discussion of information that is publicly available is justified for this limited group of present and former Government employees because of the inside knowledge regarding methods of es- tablishing effective covers potentially gained in the course of their employment. Unlike other Americans, the persons coming within the reach of this provision occupy or have occupied positions of special trust within the Government, and are or have been in a position to learn how the United States establishes cover identities for its agents abroad and conceals its relationships with foreign intelligence sources. To permit such persons to piece together the identities of covert agents, even though the conclusions as to particular agents and sources are based on publicly available information, would pose a concerted threat to the maintenance of secret intelligence relationships. In addi- tion, such persons, even after they leave Government employment, will be imbued with a credibility stemming from their Government service when they discuss intelligence information. As a result, the Department believes that additional restrictions are justified and can be sustained for this class of persons, even for disclosure of unclassi- fied information. A 5-year term and $25,000 sentence could be imposed on any such person who knowingly discloses information that cor- rectly identifies a covert agent, or who attempts to do so, under the Department's bill. The committee's bill, unlike the Department's, does not seek any enhanced protection against the disclosure of classified information as such. Instead, both provisions of H.R. 5615 would give uniform treat- ment to the disclosure of classified and unclassified information con- cerning agent identity. The first provision of H.R. 5615, 501 (a), is similar to the second provision of the Department's bill, section 802, in that it seeks to restrict the disclosure of identifying information, even when based on publicly available materials, by persons who presently have, or formerly had, authorized access to classified Government informa- tion concerning covert identities, and who, from that former position of trust, reasonably owe a special duty of confidentiality. It should be noted, however, that in 501(a), the House bill ap- parently intends to cut a wider swath than the Department's section 802. The House bill would apparently criminalize disclosures of in- direct identifying information even where the person did not actually know the information would identify a protected source, but only had "reason to know." This seemingly amounts to a negligence standard in regard to the effect of indirect identifying information, punishing a failure simply to weigh carefully enough what the identifying im- pact of indirect information would be. In contrast, the Department would confine its felony provision to knowing identifications. We be- lieve the Department's culpability standard is better proportioned to the severity of the penalty than is the House bill's standard. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 The second provision of H.R. 5615, section 501(b), would create a misdemeanor offense that covers all persons, including those who have never served in the Government and never -have had access to classified or inside material of any sort concerning foreign intelligence. Section 501(b) extends to these persons a uniform prohibition against dis- closing publicly available information that identifies a covert agent or source, with the added element that the person must have disclosed it "with the intent to impair or impede the foreign intelligence activities of the United States." Again, in the case of indirect information, the person need not actually know that the information would have the cumulative impact of identifying an agent or source, but need only have "reason to know." In proposing a section of such breadth, the House bill marches over- boldly, we think, into the difficult area of so-called "born-classified" information, an area that has not yet been litigated in a criminal con- text. The Douse provision would cover disclosures of publicly avail- able information made by ordinary citizens who claim no special ex- pertise in intelligence affairs and have not held special positions of trust nor associated with others who have. Conversational speculation about whether foreign official X may have been a CIA source and whether we have covert operatives in country Y, ordinary discussions by citizens about foreign affairs and the extent and nature of our intelligence activities abroad, even if based on no studied expertise or scholarly background, could come chillingly close to criminality under the standard of 501(b). The scienter requirement, that an individual must have acted with "intent to impair or impede the foreign intelligence activities of the United States," is not a fully adequate way of narrowing the provision. First, even such a scienter standard could have the effect of chilling legitimate critique and debate on CIA and other foreign intelligence agencies' policies. A mainstream journalist who may occasionally write stories based on public information mentioning which for- eign individuals are thought to have intelligence relationships with the United States, might be fearful that any other stories critical of the agency could be used as evidence of an intent to impede foreign intelligence activities. Speculation concerning intelligence activity and actors abroad would be seemingly more hazardous if one had ever taken even a general position critical of the conduct of our covert for- eign intelligence activity. And yet, even as it may chill legitimate journalists, that same in- tent requirement could pose a serious obstacle, in our view, in any attempted use of section 501(b) to prosecute individuals who for no reasonable purpose of public debate expose wholesale lists of our in- telligence operatives. The intent element mandates that in every case where a, defendant fails to admit an intent to impair or impede, a serious jury question on the issue of intent will arise. A defendant could claim that his intent was to expose to the American people ques- tionable intelligence-gathering operations which he "believed" to b3 improper, rather than to disrupt intelligence operations, and the Gov- ernment may find it a practical impossibility to ultimately establish the requisite intent beyond a reasonable doubt, thereby rendering the statute ineffective. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Second, and perhaps more importantly, the intent element will facilitate graymail efforts by a defendant to dissuade the Government from proceeding with the prosecution. Under 501(b) of the House bill, a defendant will be able to argue for disclosure, either pretrial or at trial, of sensitive classified information relating to the alleged activities of covert agents, on the ground that the information is relevant to the issue of whether he intended the revelations of identity to impede American intelligence activities or rather intended the revelations to lead to supposed reform or improvement of future intelligence activities. We believe that the alternative provision of the Justice Department bill, section 802, which I described earlier, would provide protection against escalation of the undesirable actions of anti-intelligence groups over the last several years, and yet would avoid these prob- lems posed by the House bill. Section 802 would prevent present and past Government employees, who gain a sophistication in methods of establishing covert identities from their inside Government knowl- edge,' from misusing that knowledge to piece together public record facts in a way that an ordinary layman could not do. Undisclosed methods of creating intelligence covers would not be subject to breach in a show-and-tell display by irresponsible former Government em- ployees, unless they were willing to suffer a felony consequence. Re- stricting the ability of persons who formerly occupied positions of trust and service within the intelligence community to abuse that service-acquired expertise will go far in inhibiting the purposeless revelation of covert identities and future methods of establishing cover. The general Federal accomplice and conspiracy statutes, 18 United States Code section 2 and section 371, would, we hope, act to prevent former inside employees from joining in concert with non-Government employees to effectuate the same wrongful ends by instructing them on methods of establishing cover and warranting the accuracy of the disclosures. At the same time, section 802 would not affect the legitimate arena of public debate on intelligence activities. It affects only a narrow class of persons who owe a special duty of trust and confidentiality to their former employer. There is no "intent to impede" scienter re- quirement to inhibit responsible criticisms of the intelligence agencies or to lead to graymail problems or to turn criminal trials into ex- traneous debates on the propriety of intelligence activities. For these reasons, the Department of Justice would recommend to the committee's attention its current draft proposal. We would be happy to work with the staff of the select committee to draft a bill that would avoid the pitfalls we believe currently are to be found with- in H.R. 5615. Mr. Chairman, that concludes my prepared statement. If you or other members of the committee have any questions, I would be pleased to attempt to answer them at this time. Mr. MAZZOLI. Mr. Keuch, thank you very much, and you certainly have made a thoughtful addition to the body of knowledge on these bills before the committee. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 I am a little curious about a couple of things. One is, has this bill, your suggested bill, been sent to the staff, or is this the first time they have had a chance to look at it? Mr. KEUCH. I believe the bill was sent to the staff, certainly as an appendix to my prepared statement, Mr. Chairman. I believe, how- ever, there were some ongoing discussions with the staff, and in all fairness, I don't believe the final form was submitted. Mr. MAZZOLI. Well, let me urge you to try to help us report the best kind of information. The quicker things can be sent to us, the better we have a chance to look them over. Is my recollection hazy on the point of, or perhaps incorrect on the point of where the Department of Justice has stood in the past on the need for new legislation in this area, or am I correct in saying that you all were either reticent or against new legislation at one time? Mr. KEUCH. I think perhaps reticent might be more accurate, Mr. Chairman, but as Mr. Carlucci pointed out, the Attorney General has indicated his support and the Department's support for this bill, and our hesitation really came from our belief, as I indicated in my state- ment, that many of these activities are covered by current law. None- theless, we agree that there is an advantage to this specific type of legislation and do support it. Mr. MAzzoLI. Is this now the current position, that the Department of Justice can be stated as of today to be behind new legislation? Mr. KEUCH. Yes, sir. Mr. MAZZOLI. And that old legislation, that which is on the books today, however much theoretical coverage there may be, does not reach the point and the goal which we all agree on, so something new is needed. Mr. KEUCH. I would answer that affirmative, as long as I am not heard to say that we do not believe that present law would not cover the activities we are concerned about. Mr. MAZZOLI. You were here today with Ambassador Carlucci, and you noticed the statements and the questions raised by the committee. Most of them dealt with 501(b). There is little argument about 501(a). Tell me how your 801 would change the committee's proposal on 501 (a) in which there is relatively little fundamental disagreement, philosophical disagreement. How do you change that? Mr. KEUCH. I think the two bills are pretty much parallel, Mr. Chairman. I think that the first section there is very little dispute about. Mr. MAzzoLI. All right. Well, what is classified information which you would add to your 801? Mr. KEUCH. The classified information, as we define it in the bill, would be any information or material that has been determined by the U.S. Government, pursuant to an Executive order, statute, or regulation, to require protection against unauthorized disclosure for reasons of national security. So what we mean by classified information would be that that has been classified pursuant to statute, regulation, or law. I guess I am restating the definition. Mr. MAZZOLI. So in other words, if a member of the CIA who leaves the service came upon, while in service, the name of John Jones, who Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 was an undercover agent in Lisbon, because he heard it around a water fountain in a room in the CIA building, but divulged that after he left CIA service, that would not be covered in your bill. Mr. KEUCH. I believe under the second section of the bill, the in- dividual in your example did not have formal access to that infor- mation? Mr. MAZZOLL I would guess, in my example, he would not. He heard it over scuttlebutt over a cup of coffee that John Jones is actually a CIA agent and he is stationed in Lisbon, and later he divulges that. That, I understand, would be covered by our 501 but it would not be covered by your bill; is that correct? Mr. KEUCH. Well, I think it would depend. If we focus in on scuttle- butt, Mr. Mazzoli, in that kind of situation, probably not, but if it is an individual who even though his position did not require that he be given access to informants' files or assets' information, the rest of it, because of his official position had access to information other than scuttlebutt and rumors and the rest, he certainly would be covered. Mr. MAZZOLI. So if it came across his desk in a piece of paper which wasn't labeled classified but somehow did divulge that John Jones is an undercover agent in Lisbon, then that would be covered by your bill? Mr. KEUCH. It would not be our view that he could benefit from the fact that there was a negligent handling of that information. Mr. MAZZOLI. Even though it wasn't stamped classified as such. Mr. KEUCH. That's correct. Mr. MAZZOLI. But it came across his desk. Mr. KEUCH. That's correct. Mr. MAZZOLI. Let me ask you this question. My time is about to expire. Under your proposed 802, would that cover Philip Agee were he in the United States at this time? Mr. KEUCH. Well, of course, under the jurisdictional statement of our statute, it would cover a gentleman such as Mr. Agee whether he was out of the United States or not. Mr. MAZZOLI. You have that in your bill? Mr. KEUCH. Yes, sir. I think he has maintained his American citizenship, and if he sat- isfied the standards of that section, certainly. Mr. MAZZOLI. He would be covered. My time has expired. The gentleman from Massachusetts is recognized for 5 minutes. Mr. BOLAND. I take it that the Department of Justice was a little reticent to get into this field because it believed that present law really covered about everything that was necessary to protect the activities of agents. Is that correct? Mr. KEUCH. I think that is accurate, Mr. Chairman. I think I have testified to that in other appearances before this committee and the Senate committee, but again, I have to emphasize that we do believe it is helpful to have a specific statute, and we support that effort. Mr. BoLA%-D. Well, this bill, as you know, was filed back in October of last year. That is about 3 months back. And I don't know that you Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 have actually commented upon that bill since that time, or made what particular objections the Department of Justice might have to it avail- able to the staff. I am not sure of that, and you can correct me if I am wrong But I am not sure that you made the Department of Justice position known, and this, to my knowledge, is the first time that we have seen a draft of your bill that is appended to your statement. Now, what is the reason for that? This is very important legislation from many viewpoints, many viewpoints. It would occur to me that the Department of Justice had a responsibility of at least getting a look at our bill and determining what the objections are and offering suggestions so, to quote you, so that we would avoid the pitfalls that H.R. 5615 presents. Mr. KEL'CH. I quite agree, sir, and I think it is fair to state that there have been a series of communications and conferences with the staff over the drafting of your bill, et cetera. I hope I am not giving away covert information myself in indicating that I am sorry that the De- partment draft arrives here as late as it does. There were attempts to try to reach an accommodation between the views of the other parts of the executive branch and the Department on the House bill and other proposals that have been made in this area. Those attempts went on right up to as late as a week or a few days ago. While, I think one of the earlier gentlemen stated it may be embarrassing for various parts of the executive branch to be here with different views, I think this is an area where the issues are very complex, reasonable minds can reasonably differ, and an area where we have traditionally, I think, we come up with somewhat different approaches to these problems to this committee. Mr. BOLAND. You are not telling me that they made an effort to draft this bill and write it up 2 days ago. Mr. KEUCH. Oh, no, sir, no. Those efforts were continuing on, how- ever. This bill has been in the drafting stage for a period of time, as have discussions with the staff on your bill. I am trying to indicate that the efforts to reach an accommodation of viewpoints continued up un- til a few days ago, and that, I think, unfortunately may have delayed our submission of the matter. However, I think that our concerns with the drafting of the bill, as I stated, I believe it is fair to say, have been known to the staff through the process of discussions of members of the Denartment with the staff. Dir. BOLAND. Well, the drafting of the bill-what was in it I don't know whether or not was known to the staff. Was that available Mr. KEVCH. I'm sorry, sir. I was referring to our discussions of the formulation of the House bill and our feelings of what world perhaps better be a solution. Mr. BOLAND. You suggest that the specific intent requirement of section 501(b) may have a chilling effect upon legitimate speech. By this do you mean that this section might be unconstitutional? Mfr. KFTTCTI. Well, we think it raises questions of constitutionality, but. I think our prime concern is that it dues have the chilling effect so that even if the individual who had that necessary intent-if -on look at it, is the bill constitutional on its face, the individual who 'has that type of intent and who commits these acts, we think that meets consti- tutional muster. Our concern, however, is that particularly since the Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 bill provides, and I think correctly so, that the mere disclosure of the identity of covert agents will not in itself be taken as evidence of that intent, then you have to look at other matters. And what are those other matters going to be? I think some of the responses that have been made here this morn- ing well point out those other matters are going to have to be the in- dividual's prior positions on our intelligence operations, the individ- ual's announced intent as to what he was doing, and I don't think we should delude ourselves that once, if this legislation were passed, that those statements of intent and those mastheads and those intents will not be changed. In fact, I have found it interesting that in the litiga- tion just recently over the passport, one of the attorneys for a gentle- man that has been discussed here this morning indicated he was try- ing to improve our intelligence capabilities. It was an argument that was made to the court. So I think our concern is that if you are going to look outside the mere disclosure of covert agents to determine what an individual's motive and purpose is in making that disclosure, you have to, of neces- sity, get into his prior positions on the intelligence capabilities, whether or not he has criticized or been critical of the Agency or not. And of course, the first amendment is intended to cover a very broad range of people, you know, far beyond the Washington Post and the New York Times, those who have been extremely critical of our opera- tions and of our intelligence operations, and what concerns us is that if you are going to look at that type of information for proof of the intent of the individual when he later makes a disclosure, we think yes, that that has a potentially chilling effect. Mr. BOLAND. Thank you. Mr. MAZZOLI. The gentleman's time has expired. The gentleman from Illinois, Mr. McClory, is recognized for 5 minutes. Mr. McCLORY. Thank you, Mr. Chairman. I seem to recall that about a year ago you were sitting there as a witness and you indicated to the committee that you felt that the existing laws were sufficient for purposes of prosecuting unauthorized disclosures of classified information. Mr. KEUCH. Yes. sir. Mr. MCCLORY. And what bothers me is that we seem to adjust our view with regard to the adequacy of the laws dependent upon politi- cal policy statements that are made by the administration or by the President, and today, with a new direction in foreign policy and a new, tougher line as far as strengthening the intelligence community, you and other branches of the executive department are supporting amendments to legislation, including this bill and other bills that we have made reference to. What, if anything, has actually happened insofar as your prosecu- tions or nonprosecutions of persons who have made unauthorized dis- closures that alters your position and indicates support for some legislation, if only the bill that you are recommending? Mr. KEUCHi. Sir, I can't say that anything has happened in the con- text of our prosecutions or investigations of individuals who have disclosed classified information. I think we are discusseg, however, Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 under one term two different considerations. One is whether or not we believe-and I think I did testify, and I have again this morning that it has been the Department of Justice's view that the present stat- utes do cover. this type of activity. On the other hand, that does not bar the fact that there can be advantages to more specific legislation that has different standards and avoids some of the problems that we have in the present statutes. And the Attorney General indicated his support for that. I might say that this is not a new change. It was the Attorney Gen- eral named Griffin Bell who, at a meeting with the Director of the CIA almost a year ago, I think, pledged the Department's support to help this committee and the agency draft legislation in this area. So again, I don't think I can say there has been a change because of prosecutions or failure of prosecutions, but certainly we believe that there is an advantage to this more limited and specific bill. Mr. McCLoRY. Do you think that there is-do you attach such im- portance to the utilization of the expression "reason to know" as op- posed to the word "know" alone to be such that the legislation is faulty ? Mr. KEUCH. I'm sorry, sir, the fact that it is Mr. McCLORY. You stated that you would consider it difficult to prove a case where you-or that you would question the validity of our bill where we use the expression "reason to know." You referred to scienter-that you would have to know. It wouldn't be sufficient if a person had reason to know that his disclosure would impair or im- pede the intelligence capabilities of the United States. Mr. KEUCH. I'm sorry sir. May I give you a better response to that, a written response? I apologize. Mr. MCCLORY. Well, let me ask you this. In response to the question by the gentleman from Massachusetts, you said that you had doubts as to the constitutionality of portions of this legislation, I guess 501 (b). What I would like you to do is to furnish us with a letter advising as to the constitutionality or nonconstitutionality of that provision or any other provision, because we don't want to proceed in any uncon- stitutional way. But I think that if you are questioning constitution- ality, I would like you to back it up by an opinion. (See appendix A.) Mr. KEUCH. Yes, sir, and I think I would like to make it clear that what we say-and we believe the specific intent requirement, which I think was an addition after discussions between the staff and the Department or at least was an evolution of the House bill, goes a long way toward solving constitutional questions as to the facial applicability of the statute-but our concern in the constitu- tional area is primarily just as I indicated, that is, the chillinn effect it may have on honest and sincere criticism of our intelligence operations. Mr. MCCLORY. Do you not believe that personnel who are working for or formerly worked for the FBI should be covered equally with the CIA? Mr. KEUCH. Yes, sir. I do; and I think that was an unfortunate oversight. I have talked to the FBI about that, and I think certainly Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 38 in those operations which, under the Executive order on intelligence activities, the FBI is permitted to conduct overseas, it should be covered as this coverage goes to other agencies, certainly. Mr. McCLoRY. In the earlier statement by Mr. Carlucci, lie referred to Mr. Civiletti's statement that revealing the identities of particular intelligence personnel and placing them in danger serves no legitimate purpose. Our proper concern for individual liberties must be balanced with a concern for the safety of those who serve the Nation in difficult times and under dangerous conditions. Has anything changed since he made that statement, or do you support that statement now? Mr. KEUCH. I certainly do. Mr. MAzzom. The gentleman's time has expired. The gentleman from Georgia, Mr. Fowler, is recognized for 5 minutes. Mr. FOWLER. The Justice Department, Mr. Keuch, did it not sup- port our graymail legislation that we marked up yesterday? Mr. KEUCH. I'm sorry, sir, did not or did? Mr. FOWLER. It did. Mn KEUCH. Yes, sir, yes, indeed; enthusiastically as I recall. Mr. FOWLER. In your statement, on pages 7 and 8, you note that "the intent element will facilitate `graymail' efforts by a defendant." Now, I think we all agree that under any intent standard, that would be, being subjective, that would be a jury question, would it not? Mr. KEUCH. Yes, sir. Mr. FOWLER. I can't-help me out here. I can't quite see how any information provided by the Government as to actual CIA opera- tions would be useful to disprove a defendant's subjective intent. In other words, if a defendant claims that he made a certain disclosure because he thought the CIA was promoting bad policy in a certain country, that would be to his defense on the issue of intent, but why would what the CIA be doing or not doing in any place be relevant to intent? Mr. KEUCH. I don't think it is a question of disproving his intent from our point of view. It would not be the primary concern. It would be that the individual could well argue that his overall intent or his purpose--and what we are talking about is motive and purpose in this situation-is to improve our intelligence agencies. And one ex- ample I can quickly think of, and I am sure there are many others, if he had disclosed a series of assets or covert agents in, say, Portugal, which was a country raised this morning, he might argue that the fact that we operated such assets and that we used those activities had, in fact, had an egregious diplomatic foreign affairs impact on our ability to conduct other intelligence programs in Portugal. And he would be arguing, saying, Look, I am trying to say that is a particu- lar-and maybe, perhaps, we could just say country X, rather, be- cause I don't know the situation in Portugal-but that is a situation where we would have been benefited if we had not used this type of ac- tivity of covert agents. We should not have used this class of individual as covert agents, and to prove that, to establish that, Mr. Government and Mr. Court, I need information to show what the effectiveness of our intelligence programs was both before and after I made these dis- closures-what they were before and after we used this type of asset Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 and informant; I would like to know what diplomatic objections or so on had been made. Mr. FOWLER. That's a good argument, that's a good defense, but it seems to me that is irrelevant to the question of his intent to dis- close. He is just arguing the reasons for his disclosure, not the impact of the disclosure. Mr. KEIICH. That's correct, but his reasons are to improve intel- ligence capabilities, and he says this to prove that he was doing that. Mr. FOWLER. But that's the element of scienter. Mr. KEUCH. Well, but he is going to say Mr. FOWLER. I don't care what he is going to say. He can say any- thing he wants to. That is the defense. That is irrelevant, would not you say, as a lawyer, to the issue of scienter? Mr. KEUCH. Sir, I might make that argument. I would certainly try to defend against it on relevancy grounds, but I think it is very I ikely the court would rule that the defendant has a right to explore the effectiveness of those programs, to explore the adverse impact they may have had, and so forth, to support his argument, his argument that his intent, as shown by the objective record, was to improve our intelligence operations rather than harm them, and that is our concern. Mr. FOWLER. So what you are asking us to do to insure not only effectiveness but the constitutionality of legislation is to eliminate our section 2 of the bill, based on basically the discussion that we have had this morning, and substitute yours. Is that correct? Mr. KEUCH. Yes, sir. Mr. FOWLER. Suppose we adopt your section 801, which would pro- hibit the knowing disclosure of information correctly identifying cov- ert agents by any person acting with the knowledge thst the disclosure is based on classified information, and that person is a journalist, wherever he was. Is that going to change your policy toward prosecut- ing journalists? Mr. KEIICH. It seems to me that if he acts consistent with the stand- ards of the bill, that is, with knowledge that it comes from classified information, our position today is that the journalists today are as subject as any other American citizens to the Criminal Code. There would certainly be no difference in their being subject to the code in this circumstance. Mr. FOWLER. Would that get us back into the sources debate if-I have forgotten, what is the law now, after all the cases, on whether or not a journalist has to reveal his sources? Mr. KEIICH. I think the law generally is no, absent some overwhelm- ing-I think there is a hearing and showing that first amendment issues are fully litigated and the rest, but I think there are two pro- tections here, and one is the fact that first, it comes from classified in- formation, and the other is that the definition and the coverage of the bill, the definition of covert agents, which is the information that is being covered in the bill, it is very limited. Mr. FOWLER. You are talking faster than I can think. Mr. KEIICH. Sorry. I may be talking faster than I can think. That may be the problem. Mr. FOWLER. I thought because of my background I might say it politely. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 The question is, you have got to prove that he knowingly disclosed this classified information. Now, he comes to you, he writes the column and says this and that, and it is classified information, and you go after him. Now, how are you going to find out where he got it and whether or not he knew it was classified? Mr. KEUCH. Well, that is exactly the problem we have under the leak issues we have discussed with this committee so many times in the past. It is a question of proof. But if we could pass statutes that would absolve our need to find appropriate proof and meet other standards, of course, our job would be a lot easier. If we cannot establish that he disclosed a covert agent-and what I was trying to say earlier was the definition of covert agent is some protection also In this statute and in the House bill because it is P. cover status that has been maintained by the Federal Government. So if it has now become public knowledge and the Government has officially released it, and so forth, there wouldn't be that type of coverage, but if we can show that he took the information concerning the covert agent with knowledge that it came from classified sources, then we feel we would have a case. And of course, with knowledge that it came from classified sources, just as his intent, would have to come from all the surrounding cir- cumstances. But our belief is that those circumstances are objective and are based on factual matters rather than an analysis of the individual's motives, his previous statements or positions on the agency or intelli- gence operations Mr. FOWLER. Just one further question. Mr. MAzzoLL The gentleman's time has expired. I will recognize myself and yield my time. Mr. FOWLER. Thank you very much. I was going to give up my future time, but I just think we ought to hammer something down after we have sat here this far. You heard our discussion this morning from Chairman Boland and myself about any legislation that would prosecute based on informa- tion, revelations derived from unclassified information, and I take it from your testimony that, simply and boldly put, any legislation that we would draw along that line would simply not stand any constitu- tional test. Mr. KEUCH. I think without the other narrowing effects of the bill, I think that is correct, sir, and of course, we feel that the Depart- ment's draft in that area is limited to a narrow class, that is, former employees and agents, and so forth, as the House bill is, too, and again, here again the definition of covert agent is some protection. So the individual who did have access to this information under a condition of trust, who knows that the information revealed reveals a covert agent, even though it does not come from classified sources, he uses the expertise, the knowledge, the "Rosetta stone," if you will, of his experience, we believe that we can constitutionally reach that indi- vidual. But if the U.S. Government has already made the identity of the agent public, other than by the fact that once he uses the "stone" of his experience to make that determination from otherwise public sources-I don't mean that but I mean some public disclosure-that would not be reached. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. FOWLER. Thank you. Mr. MAZZOra. Mr. Keuch, let me ask you one time again because I may be a little bit thickheaded this morning, is the Department of Justice behind new legislation in this field of identity of covert agents? Mr. KEUCH. Yes, sir. Mr. MAZZOLL Let me ask you for just a moment, in an area in which you have been questioned already this morning, and that is this addi- tional standard of classified data, that in the terms of the person who receives information in an authorized form and who then later in un- authorized form reveals it, that is a crime so long as the information is based on classified data. Am I correct or incorrect? Mr. KEUCH. No, sir. If the individual received it under 802 of our bill, if the individual has received it in a position of trust, he has re- ceived it because of his prior position, and he discloses information which identifies a covert agent, he is guilty of a crime whether or not that information comes from classified sources or unclassified sources. Now, there is the protection, as I have just indicated in the last answer, that the covert agent must b-that covert status must have been maintained by the Government. Eight hundred and two of the bill, for example, says, whoever, either having been an employee, et cetera, with access to information, knowingly discloses information that correctly identifies another per- son as a covert agent, or attempts to do so, is guilty of an offense. That has no requirement, unlike section 801 of our bill, that it comes from classified information. Mr. MAZZOLL Well, now, is 801 comparable to our 501(a) ? Mr. KEUCH. Yes, sir, I think the two are fairly comparable. Mr. MAZZOLI. Well, then, you do add classified information. As I understand our 501(a), it does not have to be classified infor- mation or information based on classified data, is that correct as you understand it? Mr. KEUCH. Yes, sir, except that under 501(a) (i). the identity of the officer, employee, or member is classified information, which I think is comparable to our definition of covert agent. Mr. MAZZOLI. Well, it may be, and of course, unfortunately you just served as with this bill today so we really haven't had a chance to get into it carefully, which we shall in the days to come; but if 1 read 801, you are adding a very important element of proof for the Government, and that is that the disclosure. which is unauthorized, has to be based on classified information, not that the name has been classified or the identity is being blown, but that that knowledge has come from classified information. I earlier asked you today about the person who hears information at the water fountain, or a person who gets a piece of paper across his desk without a classified stamp which does blow an identity cover, because it concerns me. That kind of information, under our 501, would indeed be enough to amout to a criminal offense. Under your bill it would not, if I understand correctly, because that would not be classi- fied information or information based on classified information. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. KEUCH. Except the only problem with that, sir, as we were discussing, the section of our bill that imposes that is one that ap- plies to anyone, and the individual who has paper coming across his desk as a result of his official position or his employment with the agency would come under section 802 of the bill, which only provides that the individual having had that type of access discloses a covert agent. There is no requirement in 802 that that came from classified information. Mr. MAZZOLI. I thank you for your time. Are there any follow-up questions? The gentleman from Illinois? Mr. MCCLORY. Are there any cases that you have now in litigation, under the existing law, against persons that have violated the existing law? Mr. KEUCH. Well, sir, I can certainly state that we have no cases under litigation, that is in the public courts and the rest. As to the response to the rest of the question, I think I would like to answer that in executive session. I certainly would be glad to. I think I have on other occasions. Mr. MCCLORY. Now, what about people that you know, should know have possession of classified material that they have received in an unauthorized way? Are we doing anything about trying to get those back through litigation or Mr. KEUCH. Again, I hate to respond in the same way, I am sorry I have to, but I would like to discuss those in executive session of the committee. Mr. MCCLORY. Well, there is nothing pending. If it was pending, it would be public knowledge. Mr. KEUCH. There is nothing pending in the court, sir, I will say that. That is correct. Mr. McCLoRY. Let me ask you this. If we enact this legislation, either in the form that the committee wants it or that the CIA wants it, or the form you want it or however, are you going to use the legislation to prosecute offenders? Mr. KEUCH. Of course, the answer to that has to be yes, but if what you mean is will the passage of this legislation result in a spate of in- dictments, I am sorry, but I think that all the discussions we have had in the past concerning our problems in this area, in leak cases, classic espionage cases and the rest, are still going to apply. Certainly our burdens will be changed, there will be new considerations, and as I have tried to say, the Department supports this legislation, we think it is an important area to act in. We think that the actions that have been taken in the past in disclosing agents are reprehensible, and I think the language used this morning was not too strong. But I cer- tainly can't sit before you and say that if the legislation is passed, that we will then turn around and render a number of indictments. But certainly we will vigorously enforce the law. Mr. MCCLORY. Well, this subcommittee yesterday had a markup session of the so-called graymail bill, and we are intending to move that ahead, even ahead of this bill. But you want that bill, don't you? Mr. KEUCH. Yes, sir. Mr. MCCLORY. And you intend to utilize it if we enact it? Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. KEUCH. Yes, sir, and that bill may, we hope, and it is designed to, and as we supported it and urged its passage to avoid some of the problems that I have indicated exist in this area. Mr. MCCLORY. And that bill, coupled with this bill, could be both useful in connection with prosecutions, couldn't it? Mr. KEUCH. Absolutely, yes, sir. Mr. MCCLORY. And you want both pieces of legislation? Mr. KEUCH. Yes, sir. Mr. MCCLORY. And you will utilize them? Mr. KEUCH. Yes, sir. Mr. McCLoRY. Thank you. Mr. MAZZOLI. The gentleman's time has expired. The gentleman from Georgia is recognized for five additional minutes. Mr. FOWLER. Thank you, Mr. Chairman. Is this-in the intent standard, isn't that basically the same as the criminal standard in the Atomic Energy Act? Mr. KEUCH. I don't believe so, sir. I think the-I am embarrassed. I am very familiar with the title 18 espionage statutes but- Mr. FOWLER. Well, I couldn't quote it either. Well, let me just ask you, without taking up my time, I have got it here, and I think it is. Mr. KEUCH. All right. Mr. FOWLER. So I would like to know how the intent element is handled in prosecutions under the Atomic Energy Act. Mr. KEUCH. Certainly. Is that 4122, sir, or what is the number? Mr. FOWLER. 2274. To follow up on Mr. McClory's question, our impression, rightly or wrongly, is that the policy of the Justice Department has been one of reticence toward the prosecution of journalists who knowingly pub- lish classified information, and the previous position of the Justice Department was that the conspiracy and disclosure laws of the coun- try were adequate. Now, I guess we are all applauding the change, that you had found that they were not adequate or you wouldn't be asking for this legisla- tion, your own version of the legislation. I wish you would speak to the fact of whether or not, if we enact such legislation, if we will see a change in the Department's policy to prosecute whatever violations are found. Mr. KEUCH. Well, it is a simple answer, and I know that it is one that we have discussed before this committee at great length, so I would say the simple answer is that, as I have indicated earlier, we certainly believe that there is no segment of the society, whether it be the executive branch, the judicial branch, or our friends in the fourth estate, who are above the law, and we would apply the statutes to those individuals. One of the reasons we think that the Department of Jus- tice's version of this bill at least, or within this effort is an effort that should be taken, is that it does narrow down the applicability of some of the present statutes. So it may remove some of the policy issues and questions that arise when you attempt to apply the broader espionage Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 statutes to the leak area, whether that leak is of covert action or covert agents, or of some other intelligence operation. But the problems that exist in investigating, in prosecuting indi- viduals who speak in our public fora for espionage cases is a principal problem we are going to have to live with under whatever statute we pass, and I think it is a balance and a problem that has to be faced most carefully. I cannot say that there will be a change in the prosecutive attitude of the Department of Justice with the passage of this legislation be- cause I believe that we now have the attitude that we will prosecute for violations of the statute where it is appropriate and where those violations are clear and a criminal law has been violated, if we can get the necessary evidence. Mr. FOWLER. Let me conclude by asking you to submit, along those lines, your reaction to the comments of Mr. Abrams. Mr. KEUCII. All right, fine, sir. Mr. FOWLER. Second, we would like to have in writing what you con - strue to be the meaning of the phrase "based on classified information" in your version of the bill. And last, any elaboration of your statement about the chilling effect on the general speech of our section 501 (b), whether or not you want to say that again, blatantly, what I think you are going to say, that you believe that is unconstitutional. (See appendix A.) Mr. MAZZOLI. Thank you very much. The gentleman from Massachusetts for the final, followup questions? Mr. BOLAND. Mr. Chairman, I just want to compliment Mr. Keuch for his appearance here today. He has thoughtfully discussed some of the problems that we may have in the bill and questions that we have with respect to it, and that is the very purpose of these hearings. And I would hope that if we get an identities bill passed, that the Justice Department would believe that the Congress is concerned about this matter, and that the Justice Department ought to share that concern. Thank you very much. Mr. MAZZOLI. I thank the gentleman, I thank Mr. Keuch, and we appreciate your help this morning. And for the final witness on the morning hour, we would welcome Mr. Floyd Abrams, who is considered one of the eminent authorities on the first amendment in the United States. Mr. Abrams is a partner in the firm of Cahill, Gordon & Reindel. Ho teaches at the Yale Law School a course entitled "The First Amendment and the Media," and is chairman of the Committee on Freedom of Expression of the Litigation Section of the ABA. Mr. Abrams was cocounsel to the New York Times in the Pentagon Papers Case, and was counsel to Random House in connection with litigation arising out of the publication of material by Victor Mar- chetti and Frank Snepp. Mr. Abrams has argued in the Supreme Court on behalf of the press in several cases, including Herbert v. Lando, Nixon v. Warner Com- munications, Nebraska Press Association v. Stuart, and Landmark Communications v. Virginia. Mr. Abrams, you are welcome and we appreciate your help. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 STATEMENT OF FLOYD ABRAMS, ESQ., COMMUNICATIONS COUNSEL; CHAIRMAN, COMMITTEE ON FREEDOM OF EXPRESSION OF THE LITIGATION SECTION OF THE AMERICAN BAR ASSOCIATION Mr. Asxaass. Thank you. Mr. Chairman and members of the committee, I am honored by your invitation to appear today and to testify with respect to H.R. 5615. I will also comment briefly on H.R. 3357, the legislation intro- duced by the majority leader as to which he testified this morning. I wish to emphasize, if I may, at the outset that I appear and speak on my own behalf today and not on behalf of any clients with whom I may sometimes have become associated. That being said, I think it is useful and appropriate for me to ad- vise the committee at the outset as to the personal framework within which I approach any review of H.R. 5615. My own view is that the naming or listing of undercover intelli- gence officers, agents, informants and sources by any of their colleagues is an outrage; and that those who have engaged in such activities have disgraced themselves and disserved both their colleagues and their country. I appear as one who believes that covert intelligence opera- tions, within proper bounds, constitute one useful and significant func- tion of any intelligence service. And I appear as one who believes, as I am sure every member of this committee believes, that in considering legislation in this delicate area, it is essential to adhere to the com- mands of the first amendment ; that legislation threatening to any de- gree, freedom of expression must be narrowly and not broadly drafted; that in areas of doubt, we must take the risks of freedom and not of repression ; and that as Supreme Court Justice Potter Stewart has said: "So far as the Constitution goes, the autonomous press may pub- lish what it knows, and may seek to learn what it can." All that being said, I appear before you for the primary purpose of urging upon you that section 501(b) of the proposed legislation is flatly and facially unconstitutional ; that it is, as well, unwise ; and that, on reflection, it should be rejected. And I appear to urge that sec- tion 501(a) is, as now drafted, of extremely dubious constitutionality, but that the heart of what I understand section 501 (a) seeks to ac- complish can, I believe, be constitutionally accomplished. Now, as the committee is well aware, and as all the witnesses this morning have indicated, the proposed legislation deals with two sepa- rate categories of individuals. The first are those who have or have had authorized access to classified information. The second relates to all others. I will direct the major thrust of my remarks to the second cat- egory, section 501(b), although I will offer a few suggestions at the conclusion of my statement about the first. On its face, section 501(b) would permit the criminal prosecution of any newspaper, broadcaster, publisher, author, journalist, or any other citizen who in any way, and however innocently, learns the name or other facts concerning the identity of any agent, informant or the like, that the United States is attempting to keep secret, and publishes or otherwise discloses it. That person and those entities, under section 501 (b). may be charged with a felony and sentenced to 1 year in prison, or fined $5,000, so long as a jury finds that such disclosure has been Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 made, and that the intention or purpose of the disclosure was "to im- pair or impede the foreign intelligence gathering operation of the United States." The effect of such a statute would be startling and unprecedented. Under its terms, when Francis Gary Powers was captured by the Rus- sians for overflying their airspace in a U-2, every publication in the United States that published Mr. Powers' name would have been sub- ject to criminal prosecution under the statute until the executive branch of the United States had publicly acknowledged or revealed the in- telligence relationship to the United States of Mr. Powers. Such pros- ecution would have been possible, notwithstanding the fact that Pow- ers' name was widely, indeed internationally known ; that the Russians had themselves revealed Mr. Powers' capture, and that, indeed, Mr. Powers was then facing charges in the Soviet Union. It is true that under the statute, all who mentioned Powers' name could have de- fended on the ground that they did not "intend" to "impair or impede" the foreign intelligence activities of the United States. But the effect of this would simply have been to permit different results as to differ- ent individuals who had done precisely the same thing, to disclose what had already been disclosed. I would go further. Subject to its exceptions, the statute would not only have made it a crime for the news media to disclose Mr. Powers' name, but for each and every American who read it or heard it to re- peat the name. Under the statute, no matter how often the name had been heard or reheard, no matter how well known an individual was, each individual who mentioned the name would have been subject to criminal liability, subject, of course, to the intent provision of the statute. Let me offer another, earlier, example. In 1958, another American pilot, while flying for the CIA, was shot down, this time in Indonesia. According to the book "The Invisible Government" written by David Wise and Thomas Ross, the pilot, Allen Pope, was initially held by the Indonesian authorities; he was then publicly tried for the murder of civilians and sentenced to capital punishment. In 1962, 2 years later, he was released. Under proposed section 501(b), the authors of The Invisible Government, the publisher of the book, and each and every reader of it who repeated Pope's name would have risked criminal prosecution. And I would note here, and I think it is relevant in light of the dis- cussion this morning as to the intent provision of 501 (b), that the Cen- tral Intelligence Agency was extremely unhappy about the publication of the book The Invisible Government, a book which was widely and favorably reviewed in the Nation's press. It is precisely in cases such as this that the "intent" exception of the statute is of least assistance to a prospective publisher. It is one thing to say that a publisher which in fact did not intend to impair or impede the foreign intelligence ac- tivities of the United States should be acquitted of a crime. I am con- fident in this case it would have been. It is quite another to say that the CIA at the time The Invisible Government was published would not have sought prosecution, if it could have done so, or that it would not seek to do so if a similar situation were to recur. One could cite many other examples of material which I believe should have and should be published. and as to which publication Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 under section 501(b) would subject all concerned with prospective criminal liability. What of, for example, a situation in which it is learned that an intelligence operative is acting illegally under Amer- ican law by, for example. spying on Americans who have done nothing wrong but oppose those in power? `'ghat of a student who learns that his professor has been recruited by the CIA in violation of law, and -wishes to tell others of that fact? What of any instance of criminal wrongdoing by the CIA or any other intelligence operation? On its face, section 501(b) puts at risk all who would disclose such illegal acts, whether they refer to the name of the individuals who have com- mitted the acts or simply provide any information from which such identification could be made. These examples illustrate some of the ways by which section 501(b) may operate to restrict freedom of expression. At its core, I believe section 501(b) flies in the face of a first principle of the first amend- ment : While the Government may try to keep information secret, the disclosure of information which has already become public may not be criminally punished. Indeed, as phrased by Chief Justice Warren Burger : The Government cannot restrain publication of whatever information the media acquires and which they elect to reveal. Beyond these objections to section 501(b), I would urge the com- mittee to consider this question : Law aside, even constitutional law aside, is it really necessary for the first time in our Nation's history to attempt to make criminal the publication of material which is essen- tially within the public domain? Ambassador Carlucci has testified this morning, as I understood him, that even if all the information that an individual, a reporter, for example, were to gather were of a public nature, that there still could be criminal liability. The distinction he drew between a single case of publication by a journalist and many cases of publication by a journalist finds no support in the proposed statute, or, so far as I know, in any other body of law. If it is illegal, if it may be illegal for a journalist to publish the name of an intelligence operative gathered from public sources in one way or the other, it is just as illegal in a simple case as it is in a number of cases. Now, beyond these objections I have one more. It seems to me that whatever you may decide to do, whatever legislation you may decide is appropriate, with respect to the disclosure by CIA agents, present or former, that you should adopt no legislation which bars the rest of the American people from disclosing fully the activities of their Gov- ernment of which they have already learned. To do otherwise would not only deprive the public of information, it would deprive us all of credibility as we deal with each other, the press with the public, citizens with each other. As for section 501(a), I have the following briefer comments. First, it seems to me that legislation drafted to assure that agents do not disclose the identity of their colleagues in the intelligence service is constitutional. Specifically, H.R. 3357. it seems to me, is as a general matter constitutional, and for what it is worth to you, as a general matter, I believe it is probably a wise statute as well.*However, section 501 (a) as it is now drafted is, I believe, flawed in a number of ways Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 which I would urge requires serious consideration by the committee if the committee does not choose. to move in the direction of H.R. 3357. Most important of these- is what I believe to be the overbroad lan- guage of section 501(a) which makes it criminal not alone to disclose the identity of an intelligence officer or the like, but to disclose "any information" that identifies the individual. I appreciate the concern that there may be some instances in which disclosure of something less than the agent's name may in fact lead to his ultimate disclosure. Nonetheless, it is imperative for constitutional reasons that' the statute be limited in some fashion so as to make criminal only the disclosure of the identity of the agent or other employee, or of information which, in and of itself, identifies or necessarily leads to the identification of the agent. The words "any information" in section 501 (a) are so broad, so sweeping, so susceptible to differing interpretation that they may well not give sufficient notice as to precisely what may or may not be said. Beyond this, I believe that any statute should, at the very least, allow a defense to be made that the material in question was not in fact classified, that the Government should be required to prove, as presumably in this area it could often prove, that the identities have been classified, and that the Government should be obliged to prove, as well, that the material is still validly classified. Additionally, I would urge upon the committee that the Govern- ment be obliged to demonstrate that an agent who is accused under section 501 (a) had learned the information in question during the course of his service. If, however, he is long out of the Agency-and the longer he is out of the Agency, the more significant the constitu- tional difficulties-it seems to me a dubious constitutional result to allow the commencement of criminal prosecution on the basis of in- formation which the former agent may have learned entirely outside the ambit of his service. Further, it seems to me appropriate that the statute contain some provision allowing a defense in situations in which the individual whose name is referred to is himself or has committed crimes under American law. To do otherwise may shield the CIA and other intelli- gence agencies from a kind of whistle blowing which all of us, I would think, would believe is in the national interest. Finally, if some form of section 501 (a) is to be adopted, I would strongly urge that it make clear that no journalist may be investigated or called to testify before a grand jury, simply because he or she pub- lished an article identifying, in some fashion, an agent. Members of the committee, it is not easy when the CIA comes to you and seeks legislation which is designed in good faith to protect the lives of those who work for us all, for you to conclude that the legis- lation goes too far; that other factors must be taken into considera- tion; that there are in fact countervailing interests. But the interests that I would urge upon you in rejecting section 501 (b) and narrow- ing section 501 (a) are not small ones. Judge Murray Gurfein, in decid- ing the Pentagon Papers case in favor of the New York Times put it this way: "The security of our Nation is not at the ramparts alone. Security also lies in the value of our free institutions." Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 That says, as well as any words known to me, what I believe this committee should bear in mind as it engages in the difficult task that lies before it. Thank you. Mr. MnzzoLI. Thank you very much, Mr. Abrams, for a very in- formative statement and delivered by a person who has a lot of ex- perience in the field. Let me at this time, since the gentleman from Massachusetts, our chairman, has a time problem, perhaps he would wish to lead off on questions. Mr. BOLA\ D. Let me j ust ask a couple questions. First of all, I appreciate your statement. It is done beautifully, and you delivered it beautifully, too. Mr. ABRAMS. Thank you. Mr. BOLAND. It is a clear indication of your long service in this particular area. Your knowledge in this area has made this statement today a very clear one and a very forthright one, and I think you have helped this committee, too. You were here when Mr. Keuch testified with respect to the Depart- inent of Justice proposal. Will you comment on that, or Mr. ABRAMS. I can, Congressman Boland. Unfortunately, I just saw it this morning for the first time, and I Mr. BOLAID. We did, too. You can carry it back with you and if you would like, you may do it for the record. Mr. ABRAMS. I would like to submit something, if I may. (See app. B.) In general, however, there are a few things which I observe on first reading which I would be happy to point out to the committee. First, as is evident from my own statement, I share the views of, the Department about the possible chilling effect on publication of the language in section 501(b) relating to intent. If there is one thing I do for a living, it is to advise publishers, authors, prospective writers, and I have to tell you that if I were in a situation in which a journalist were about to publish an article, even an article coming from what I would consider in lay terms to be the "public domain," where other people had already mentioned a prospective agent, for example, and the journalist were to ask me what threat there was of criminal prose- cution under section 501(b), I would have to do the following. I would first of all have to offer a kind of political judgment, how likely is it that the Department of Justice is in fact going to prosecute. I am no better at that than anyone else, but that is one factor as a lawyer, that I would have to take into account. Second, I would have to say the Governmment is probably going to be likely to be allowed to introduce about anything it wants to prove your intent "to impair or impede," including, for example, your prior stories, things you may have said to friends, anything you may have written. There would be interrogation as to your state of mind, of a very probing, intrusive nature. And I think I would have to say that I just don't know how a jury would likely come out, par- ticularly in the kind of cases that these often are. These are very often high publicity cases in which what a journalist has done is sometimes Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 disagreeable to a large percentage of the American public, just the kind of case that the first amendment is designed to protect a jour- nalist in., But if it becomes then a question where the statute is violated, apart from the intent requirement, where I must tell the journalist that publishes, say Colonel Powers' name violates the statute, but that I am confident that no one is going to prosecute, or that I am confident that a, jury is not going to find that he intended to impair, I am taken into an area as counsel where I think I am opining really beyond the normal, traditional sphere of a lawyer's role, and the reason I am taken there is the kind of intent language which 501(b) now con- tains. I cannot, in short, advise with confidence; I must combine po- litical judgment with guessing about likely jury responses. Beyond that, I do not find very reassuring, at first reading at least, the language of the Department of Justice in their section 801 which seems to apply and is designed to apply to everyone, the press included, and is not limited to people with intelligence backgrounds or in the intelligence service. I understand what you were told this morning, and as I have said, I share it, about the chilling effect of the "impair or impede" language. I am not clear how 801(a) in the Department of Justice bill answers that; 801 (a) says whoever knowingly discloses infor- mation that correctly identifies another person as a covert agent, with the knowledge that such disclosure is based on classified information et cetera, is guilty of an offense. In most of the examples I have cited to you, it would be "knowing" by hypothesis at least. I have cited to you examples where it would be a correct identification. I haven't been able to study the definition of the Department yet enough of "covert agent," but I am none too clear whether what the Department of .Justice has done is to take out a provision which I am sure was writ- ten for the purpose of deterring prosecution in some cases, the impair or impede language, and insert nothing else, no additional protection against just that kind of prosecution. Now. I may misread it because I just did get it this morning, but at least on first reading, I am just not clear what it is that the De- partment is offering as it cures the problem that it perceives and that I perceive in the "impair and impede" language. Dlr. BOLA\D. Could you venture an opinion as to whether or not it is now a crime under any of the existing espionage laws to disclose the names of undercover agents? Mr. ABRa1IS. I would like to answer that in two parts, and the second part relates to the publication as opposed to the- disclosure. There is an open legal question-let me do the second firs--there is an open legal question, as the Department's submission to you this morning indicates-as to whether "publication" as opposed to dis- closure in some other fashion. is in fact covered in some of the pro- visions of the espionage law. It is clearly covered under the Atomic Energy Act, it is clearly covered with respect, to the disclosure of codes because both those laws say so. They say publication may not be made, et cetera. The word "publication" is not contained in any of the other pro- visions of the Espionage Act. The position that I have taken for clients Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 of mine, the position that the New York Times, say, took in the Penta- gon Papers case was that that was a deliberate congressional decision, and we cited a number of historical situations in which Congress was presented with legislation which would have made it a crime to publish certain types of information and in which it declined to do so. There was a conflict on the Supreme Court in the Pentagon Papers opinion itself as to whether our interpretation was correct or not, but it is, as the Department indicates, at least a live legal question. As to whether, publication aside, disclosure of the kind of things Mr. Agee, for example, has been saying is now a crime, I would have thought that it was if the Government could have demonstrated that it relates to the national defense, and that it was done for the purpose of harming the United States and/or helping a foreign power. My own view is that the Government has had tools, if it chose to use them, vis-a-vis Mr. Agee, but I have not looked into it that much. Mr. MAzzom. The gentleman's time has expired. Mr. BOLAND. Thank you very much. Mr. MAZZOLI. Let me take my time now, Mr. Abrams, and thank you again. I appreciate the succinctness of your statement. With this great body of paper floating around, it is nice to have people who have the ability and facility to state their case briefly. You cite the case of a gentleman named Pope, and I am not familiar 'svith that case, but the CIA man who was shot down over Indonesia, and a book that was written about that titled "The Invisible Government." May I ask you to help me, why could not the same impact have been made by the authors of that book in their aim to disclose a. hair- brained operation, to disclose another one of the overreaching aspects of the Federal intelligence service, without naming Mr. Pope by name? What would have been the lesser impact of that kind of a book as against the greater impact of a book with his name in it? Mr. ABRAMS. I think as a general matter there is lesser impact if you don't disclose the fundamental prerequisites of good journalism : who, what, where, when, why. Beyond that, I think in a situation like this Mr. Pope's name was no secret to anyone that was interested in this kind of matter. He had, after all, been formally, publicly charged, convicted in Indonesia of murder of civilians for flying for the CIA and what the Indonesians said was dropping bombs on behalf of the CIA and rebels in Indonesia. I don't mean to answer your question with a question, something people in my part of the country do now and then Mr. MAzzoLI. Professors do that, I have found. Mr. ABRAMS. But what harm is there in publishing the name? I don't see any harm, first of all, in disclosing Mr. Pope's name, given the fact that it was out there for anybody that was interested to find it. And I see some good in the general journalistic sense and the general public informational sense of telling the story the way it happened. Now, in a lot of cases I think, if I may say so, you and I and, I suspect, all of us in this room would come out the same way as a matter of propriety. For example, let's take Mr. Agee's book. After the book came out, the New York Times did not republish the names of any of the agents, Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 or any of the purported agents named by Mr. Agee. That was, I believe, a responsible journalistic decision. Their view was, among other things, that it wasn't newsworthy, but I think their view was, as well, that it would have been irresponsible. Suppose they had. If they had and if I had never represented them and were just appearing for myself today, I think I would have to in all candor answer your question by saying I really wish they hadn't. I don't think it would really add that much if they did, but I would also say to you, it can't be a crime if Agee has gone and done this thing and then someone goes and buys the book and reprints some of the names, or one or two of the names, or whatever. So I would come out differently in response to different questions. I think Mr. Pope's name ought to have been mentioned, and I don't think the list Mr. Agee gave should have been. Mr. Mnzzorr. Well, you have certainly made your case very well. I would perhaps, with great respect, differ with you. I think that a book can be written using a pseudonym, a book can be written identi- fying in an unvarnished fashion, with total candor, the incredible activities of the CIA and how they had led to this problem or that problem, without using the name and that is really all these bills attempt to do. What we have got before us is one, very limited cate- gory of divulging information, that is, names of agents under cover. We don't talk about naming the adventure as being sacrosanct, we, don't say refrain from criticizing your Government. We are simply saying one narrow category, names of agents, because we don't think that is essential in telling the case of the misbehavior, if that is the case, of the intelligence agency. So I think I can understand your position that who, what, where. when, why of journalism is very important to your client the New York Times, but I think the same case could be made, and per- suasively, that the retention of the name alone and the use of a pseudo- nym could probably have had the same degree of impact. But I thank you very much, Mr. Abrams. What you have said today, plus your critique of the Justice Department bill will be very helpful to the committee. The gentleman from Illinois is recognized for 5 minutes. Mr. MCCLOP,Y. Thank you, Mr. Chairman. I want to emphasize, Mr. Abrams, that we are all conscious of the protections provided by the first amendment, and all very anxious to protect the rights of free speech and freedom of the press in connect ion with this legislation. However, we realize that there are limitations pn the first amendment. the proverbial limitation which prohibits a per- son from shouting "fire" in a crowded theater. But, there are some who would question that there are any limitations. I don't know whether Seymour Hersh, who I believe writes for the New York Times, world question the limitations or not, but lie has stated that h, would feel that the press had the right to publish even another proverbial example, the place and time of a troop ship departure from port. Now, I want to say this in your behalf and in behalf of your client the New York Times, that-and I have gotten this from conversations with Dean Griswold and from my personal examination of what I Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 believe is the complete Pentagon Papers which were taken by Mr. Ellsberg-you did not publish all of the Pentagon Papers. You ob- served the same restraint that you did with regard to the publication of names of agents in Philip Agee's book because there was sensitive, classified information which would have impaired our national secu- rity interests, so that those. portions were not-they were never pub- lished. You must be aware of that yourself. The example you give of Mr. Powers, Gary Powers, it seems to me, is not a very valid one as an objection to this legislation because it would not be possible to show any intent to impair or impede foreign intelligence activities where his name was generally known. And like- wise, it seems to me that you misunderstand the responsibility of the Attorney General and the prosecution in that there is no obligation to prosecute a losing case or a case where the statute is there but you just can't make out a strong case. I mean, the prosecution still has the option to bring the case or not bring the case. Could you respond to that observation and maybe comment? Mr. ABRAMS. Yes, two things. First, forgive me for saying it again. but I do appear on my own behalf today and I don't speak for the Times or any other organization. Mr. MCCLORY. Yes. Well, you should speak proudly of them. Mr. ABRAMS. Well, I speak proudly of them but I don't speak for them today. As regards the Pentagon Papers, if I may, it is perfectly true, and I do have personal knowledge of it, that the Times made editorial decisions not to publish certain material because of the possibility. however slight, that it could have impaired in some fashion national security. All that material was later published in the Beacon Press books by Senator Gravel, you may recall, all the material was ulti- matelv published, and so far as I know, there was no discernible harmful result. As respects potential prosecution. I suppose what. I would say as very general thing is that the first amendment does not assume good faith on the Hart of prospective prosecutors. It does not assume a prosecutor will refrain from prosecuting simply because he has a pretty decent. chance of losing the case. Beyond that, I have some knowledge, and I would hope you wouldn't ask me about it, here under oath, about how much lawyers cost, and the. cost alone of counsel in a case in which a publisher, say, or an au- thor. were indicted, is very high and, in and of itself, extremely inhibiting. -Now, if the result of legislation is to empower the Department of Justice to commence prosecutions against newspapers that they think have behaved, let us say, irresponsibly, the existence of the power would he. it seems to me, an enormous threat. I would hope the power wouldn't be exercised, and of course, I don't mean to suggest that this administration or any recent administration, going back a few years, anyway, would exercise it, or would have exercised it. But we can't tell, and. we draft legislation. I hope, to avoid the risk as well as the likelihood. Mr. MAZ7OLT. The gentleman's time has expired. The gentleman from Georgia, Mr. Fowler, is recognized for . minutes. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. FOWLER. Mr. Abrams, I was rocketing along with your consti- tutional position and your excellent criticisms about sweeping legisla- tion and your urging of tightening in several instances until I got to page 10. The last page, at the top it says : "Finally, if some form," if we are going to adopt it, you would strongly urge that it be made clear that no journalist may be investigated or even called to testify simply because he or she published an article identifying, in some fashion, an agent. Now, you know as well as I know that anybody and everybody can call himself a journalist and publish anything they want to, and be anywhere they want to in a free society. We have got the publishers of this ConvertAction Information Bulletin in the room right now. Are you saying that you want to extend this kind of constitutional protection in that way to anybody who publishes anything in naming an agent of this kind? Mr. ABRAMS. Congressman Fowler, let me say that was the last thing I wrote in preparing my testimony Mr. FOWLER. It is not often I get to take on a man of your creden- tials. I appreciate it. Mr. ABRAMS. Thank you. I think that line may be a bit overwritten, as I hope nothing else in the statement is. What I meant to convey is that there are a lot of rather routine journalistic articles which are indeed based on leaks, often of classified information, and I would Mr. FOWLER. Well, let's put it, I understand. Mr. ABRAMS. I would hope that we just wouldn't wind up with a situation where just because we have new legislation we wind up with a new wave of subpenas, such as we had in 1972, some years ago. Mr. FOWLER. Well, put it another way. Are you urging us to exempt under first amendment rights the naming-I mean, the whole pur- pose of this bill is simply one : Those of us or most of us on this com- mittee-we won't get into a philosophical debate-believe in a free Government, a free society, that the public has an absolute right to know everything about their Government. The caveat to that gen- erally agreed upon is except in interests of national security. If you are too free, then you become less free, and we are simply trying in a very narrow scope to prevent the authorized intelligence gathering apparatus of our Government from being revealed, especially by those who have been in a position of trust and employ of the United States in a capacity where they had that knowledge. Now, if a journalist, by whatever reason, the most respected jour- nalist in the most respected publication says Wyche Fowler is a CIA agent gathering clandestine material, are you saying that you believe that, -No. 1, we ought not to have a law prohibiting that, and second, if we did, it would be unconstitutional simply because it was published? Mr. ABRAMS. I think in most situations that I can think of, includ- ing the most of your hypothetical, at least, I believe it would be un- constitutional for a journalist to be accused of the crime, where the only crime was publishing the accusation that someone was an agent. I think it is one thing to have legislation, as H. R. 3357, which makes no reference to journalists, and as to which, for example, I would not think you need a journalist's exemption clause in something as Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 short and I think generally as clear as that; it is one thing to say that there should or could be a law saying that there are certain obligations on people who have authorized access to information and certain things that they are not allowed to do because of their relationship which we allow them to have with the Central Intelligence Agency or the like. I think it is a different case when a journalist is informed of that information, or if a journalist learns of that information and were later to publish it. I think, for one thing, in that situation, the secret is out. It is gone. I don't think you can rebottle old secrets. And my own sense is that if you are going to adopt any legislation, and if there is a need for any legislation here, it is to deal with the agent, perhaps the former agent Mr. FOWLER. Well, then, how would you deal with the Agee-Covert Action Mr. MAZZOLI. The gentleman's time has expired. I will recognize him, without objection, 2 more minutes to followup his thought. Every- body has been abiding by these time limits, including the temporary chair. Two more minutes. Mr. FOWLER. Thank you, Mr. Chairman. What would be your suggestion of dealing then, based on your analysis, with the Agee publication of all these names? He has got himself a newspaper, calls himself a journalist. Mr. ABLAMs. Mr. Agee's name has been mentioned a lot today and I am not as knowledgeable as a lot of people are. His name has become a term of art, almost. If Mr. Agee is disclosing information which he obtained as a result of his intelligence connection with the United States, then I think a statute could be drafted which is narrow, and which in some way prohibited and made criminal his disclosure of that type information. I do not think it would be constitutional, to use the name referred to earlier, to make it a crime if Seymour Hersh were to later learn, from even Mr. Agee, the name of some agent, for Mr. Hersh to pub- lish it. Mr. FOWLER. Well, I understand the prior publication distinction, especially in the Powers case and the cases you cite, but the question is the publication, ab initio, by anybody who knows that this is clas- sified information-that is what we are dealing with. Mr. ABRAMS. May I say this? I have been given leave by the chair- man to respond to the Department of Justice's proposed legislation, and perhaps I could consider responding as well to your question in my letter. Mr. FOWLER. Thank you very much. Mr. MAZZOLL The gentleman's additional time has expired. I would like to recognize and welcome a very valuable member of our full committee, though not a member of our subcommittee, but we would welcome any questions that the gentleman from Florida, Mr. Young might have. Mr. YOUNG. Mr. Chairman, thank you very much. First, Mr. Abrams, I would like to, as one member of this commit- tee who has introduced what is probably the strongest bill on this Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 subject, I want to thank you for your comments on the first page of your statement where you recognize the problem and agree with the fact that something has to be done. As one who is interested in getting a bill enacted into law, providing protections that you and I both would like to see provided, I would like to take this time to go to your second page where you say "that the heart of what sec- tion 501(a) seeks to accomplish could, I believe, be constitutionally accomplished." Would you be willing to offer your suggestions now or for the record as to what words we could use to do what you and I want to do, keeping it in a context that you would consider to be constitutional? Mr. ABRAMS. Well, I would prefer, Congressman Young, if I may, not to try to give you precise words right now. It is a very delicate drafting process, and I have already indicated that I thought some- thing along the lines of H.R. 3357 would pass constitutional muster. I would be glad to undertake, if I may, to respond to your question as well in my letter to the committee. Mr. YOUNG. I would appreciate that. I wouldn't expect you to give its the solution to that problem off the top of your head. Mr. ABRAMS. I don't know if I have it. Mr. YOUNG. The concern that I have, we can't write the law too broadly, as you suggest, but we have this problem, and we have seen it happen in other countries. What happens with a person like Agee who will take the information that he has for the purpose of expos- ing other agents and adversely affecting the intelligence ability of the United States, and has that information published in, say, France. Then the French publication is brought to the United States and used as a source, then becomes the basis for many stories, news accounts, columns or whatever. The damage is still being done. What do you think we could do to prevent something like that? Mr. ABRAMS. Almost nothing. I think that you could adopt legisla- tion which would be constitutional with respect to the responsibilities of agents, and again, assuming Mr. Agee's role, and assuming that he learned the information he is publishing out of disclosure to him of what I will call classified information, I think that is one situation. If Mr. Agee or anybody else discloses to a French newspaper such information, I am very clear, for what it is worth to you, that an American newspaper is free to republish it without any fear of crimi- nal penalty, and that any law which would seek to punish an Ameri- can newspaper in that situation would be unconstitutional. I think I would have to say, Congressman Young, that we all have to recognize that one of the purposes of the first amendment was to make it harder to do things which we would sometimes like to do, harder to prosecute people, harder to suppress speech which we find very offensive, and even speech which is sometimes very dangerous. And so if a very narrow statute is all you can do, as I would urge on you, if I am right in saying that to you, then I think all you can do for the rest is to urge the Agency to be more careful in its own internal procedures, to take whatever steps the Government itself can to con- tain its own secrets. Beyond that, I think we just have to leave it to the good faith of responsible journalists in terms of what they decide Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 to publish, and the individual decisions which they may choose to make. Mr. YOUNG. In the case of the French publication, I was really con- sidering one more in the line of an underground publication that would be used by an organization whose intent was the same as Agee's, to destroy our intelligence capability. Mr. MAZZOLI. Your time has expired, Bill. I have 5 minutes and I will yield you a couple minutes if you want to pursue that. Mr. YOUNG. Just one more question, Mr. Chairman. Thank you very much. Mr. MAzzoLI. You are recognized for 2 minutes. Mr. YOUNG. That was the broad question. Now to a more narrow question. Mr. McClory talked about the incident of yelling "fire" and what protection under the first amendment is not given to a person yelling "fire" in a crowded theater. The Supreme Court has ruled that obscenity is not protected by the first amendment because it is not speech. Each word in an obscene work, publicly available at a library is acceptable standing alone, but when combined in a textual format loses the protection of the first amendment. In the courts opinion, it becomes totally without social value; it falls outside of acceptable social norms. Now, that is a very narrow interpretation of the first amendment, the same as it was in the question of yelling "fire." Do you believe that in a context like this that we could accomplish what we want to accomplish without abridging the Constitution? Mr. ABRAMS. Well, I believe that you could probably achieve most of what you want to do, consistent with the first amendment. Some things you couldn't do, even if you wanted to do them, and obscenity law, for example, is a body of law which has grown up all by itself in a way outside the mainstream of first amendment law. The only way the Court has been able to deal with Obscenity is just, as your question rightly indicates, is just to say by definition it is not speech; hence we can say that we can limit it. I wouldn't want to seek a new category like obscenity for purposes of drafting or defending the constitutionality of the kind of statute that I think that you would want, and I suppose I would really have to urge on you again that there really may be things which might be socially beneficial for you to accomplish if you could draft a broader statute, but which the first amendment for other, still more important, societal reasons, doesn't allow you to do. Mr. YOUNG. Thank you, Mr. Abrams. Thank you very much, Mr. Chairman. Mr. MAZZOLL I am glad to recapture my time. Let me, Mr. Abrams, finally ask you a very brief question. The draft of the bill, which we just saw this morning from Mr. Keuch of the Department of Justice, has a provision which the gentle- man from Florida might be interested in in which says there is juris- diction over an offense under this section committed outside the United.States if the individual committing the offense is a citizen of the United States or an alien lawfully admitted to thA United Mates for permanent residence. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 I would not expect you, except if we have a curbstone judgment on the legality or constitutionality of such a provision, but I would like You to supplement that because it deals with what the gentleman from Florida had brought up in his French case to some extent. Mr. ABRAMS. I believe such a provision is constitutional. If I have any other thoughts on the matter, I would like to deal with them in my response to the committee if I may. Mr. MAZZOLI. Right. Thank you very much. And I understand the same provision generally is in our bill, so you might comment on that. Mr. ABRAMS. Yes, it is. Mr. MAZZOLI. And that was really the penultimate question. The ultimate question is, on page 9 of your statement you suggest that there is really no concern on your part for an agent who leaves the service of the CIA and then makes revelations of names there- after. You say that, "Additionally, I would urge upon the committee that the Government be obliged to demonstrate that the agent who is accused under this section 501(a) have learned the information in question during the course of his service" and not afterward. Do you have any faith in what we heard this morning from Ambas- sador Carlucci that an agent in the service of the United States learns certain techniques, is given certain entres to information, develops cer- tain profiles which then later can be used to ferret out this information from even unclassified sources, and with that, if you believe that there is any merit whatsoever, does that translate into any section of the bill that could be applicable to cease his divulgence of agent names? Mr. ABRAMS. Well, my own sense is that what you were told this morning by Ambassador Carlucci is correct in that an agent does in- deed learn certain tricks of the trade, tools of the trade, gathers knowl- edge, is better able than other people to read even public, unclassified documents. I think that is undeniably correct. .Nonetheless, my sense is that to say that a former agent is to be deprived of what would otherwise be his first amendment right of freedom of expression with respect to public material would not, I think, properly be deemed constitutional. There was a case which the prepared text of my statement cites, the United States v. Heine case, in which a prospective German agent sat and collected from technical documents and the like, all of which were public, but for the purpose and with the intent of aiding Germany in World War II, if the United States and Germany went to war-he did this in 1940-an awful lot of public, unclassified information. He did it with the worst possible intent. The court of appeals for the sec- ond circuit said that You just can't prosecute someone in a situation like that, and that Congress hadn't meant to prosecute him. I think the court was right, and I think the answer would be the same to your question. Mr. MAZZOLI. The gentleman from Kentucky's time has expired, and all time ~N Ir. YOrsc. I was going to yield you 2 more minutes. Mr. MAZZOLI. Thank You very much. I know all this Yielding of time doesn't seem to make a lot of sense, but it does get four or five witnesses on within the allotted time. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. Abrams, thank you very much, and the committee stands ad- journed until 1:30. [Whereupon, at 12:33 p.m., the subcommittee recessed, to reconvene at 1:30 p.m. the same day .j AFTERNOON SESSION Mr. MAZZOLI. The subcommittee will please come to order for the afternoon session. Our first witness this afternoon is Mr. Jack Blake, who is no stranger to our committee. Mr. Blake is the former Deputy Director of the CIA for Administration, and he is presently the President of the Association of Former Intelligence Officers. The association, called AFIO, is 1,000 strong and has actively commented on this and other intelligence legislation pending before the Congress. And again, we welcome you, Mr. Blake, and appreciate hearing from you on these various matters. STATEMENT OF JACK BLABS, PRESIDENT, ASSOCIATION OF FOR- MER INTELLIGENCE OFFICERS; AND FORMER DEPUTY DIRECTOR FOR ADMINISTRATION, CENTRAL INTELLIGENCE AGENCY Mr. BLAKE. Thank you, Mr. Chairman. If I may, sir, merely for the record, may I identify the strength of AFIO as approximately 3,000 instead of 1,000. Mr. MAZZOLI. I am sorry. Inflation has taken its toll. Inflation has made it 3,000. Mr. MCCLORY. I want to join in welcoming the gentleman. Mr. BLAKE. Thank you, Congressman McClory. Mr. Chairman and members, I wish to thank you for requesting me to appear before this committee on behalf of the Association of Former Intelligence Officers, AFIO, to give our views on H.R. 5615, the Intelligence Identities Protection Act. I note that this bill is sponsored by all of the members of the House Permanent Select Committee on Intelligence. We in AFIO fully support this bill and urge early committee action looking toward enactment into law. The need for this legislation is clear and compelling. It is appalling that the names of confidential employees, agents and informants of our intelligence services can be spread about or published with impunity. There must be a law to deter those who would disclose those identities. Not only is the safety and well-being of such employees and agents put in jeopardy, but there is significant harm to ongoing intelligence activities. In the aftermath of excessive charges and certain ill-founded al- legations of the mid-1970's, this legislation is a concrete step to enhance the effectiveness of intelligence. Against the backdrop of world events, positive action will be seen as well timed. Furthermore, the men and women engaged in intelligence activities will see this as a positive effort to protect them in their daily work and the resulting boost in morale will be immeasurable. Many times legislative objectives are shared, but the proposals when drafted cause difficulties. We recognize the considerable effort Approved For Release 2008/10/31 : CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 and care which have gone into the specific wording of H.R. 5615. We wish to express our appreciation to the Subcommittee on Legislation which sent to AFIO in March of last year preliminary drafts dealing with the subject matter of H.K. 5615. Prior to forwarding our writ- ten comments, AFIO representatives met with your staff for candid discussions. We believe these efforts were worthwhile and produced an excellent result. The problem, Mr. Chairman, addressed by your committee today is both very real and very current. I should like to call your commit- tee's attention to the most recent edition of the CovertAction Informa- tion Bulletin, December 1979-January 1980. This bulletin is published by Covert Action Publications, a District of Columbia nonprofit organization. Its board of directors is listed on page 2, and prominent among those mentioned is Mr. Philip Agee. A regular feature of this bulletin is a section entitled "Naming N ames and Sources and Meth- ods." In this particular, most recent issues, three pages are devoted to names. The introduction to the names says, in part, and I quote, "As a service to our readers, and to progressive people around the world, we will continue to expose high-ranking CIA officials whenever and wherever we find them." In this particular issue to which I make reference, 16 names are mentioned. I will not address myself to the accuracy of the identifica- tions because to do so would only give aid and comfort to the enemy. The potential harm to the individual and his family stands the same, whether identification is correct or not. The impediment to the work of the Government, let alone the potential damage to the individual and his family, screams forth if the identifications are correct. I would also call your attention, Mr. Chairman, to the latest edition of Counter Spy magazine, identified as volume 4, No. 1, but undated. This piece of journalism ceased publication for a period but now has resumed. In its current issue, under the title of "U.S. Intelligence," it lists the names of 34 individuals resident in five different foreign countries as U.S. intelligence operatives. Everything I said previously about names in the CovertAction Information Bulletin applies with equal force to the situation here. In the two issues of these maga- zines alone you have 50 potential examples of U.S. Government em- ployees who today are bereft of protection from their Government. Swift passage of H.K. 5615 would remedy this egregious wrong. In conclusion, Mr. Chairman, I would merely state that the member- ship of the Association of Former Intelligence Officers is grateful to this committee for its collective sponsorship of legislation so necessary to protect the best interests of this country and to protect the welfare of those who in circumstances that can be both trying and dangerous, labor in the best interests of the Republic. We hope the enlightened leadership shown here by the Congress will also be followed in matters pertaining to the protection of sources and methods, modifications to the Hughes-Ryan Amendment of the Foreign Assistance Act of 1961, and more reasonable treatment of sensitive information under the amendments to the Freedom of Information Act. That concludes my statement, Mr. Chairman. Mr. 11L&zzoLr. Thank you very much, Mr. Blake. Let me ask, were you in the room today to hear most of what has preceded your statement? Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. BLASE. No, sir, I was not. Mr. MnzzoLI. The objection made by many people in comments and observations dealt more with section 501(b) of our bill. Section 501(b) deals with the release of iniorunatnon by people on the basis of rniorma- tion acquired either from nonclassified sources or from piecing together other information not generally in the area of sensitive information. I just wonder if you might address yourself-there seems to be little philosophical problem, though there is even some concern about im- posing a criminal sanction on those who receive information in their authorized capacity and divulge it. But there is a great deal of concern about focusing on others, perhaps members of the media, who did not receive their information in their official capacity. I wonder if you might address that, if you have given some thought to the problem, and perhaps you could help our committee wrestle with that. Mr. BLAKE. Yes, sir. In the first instance, I note with interest the identification given to title V, which is "Protection of Certain National Security Information." It does seem to me the names of the individuals involved and the definition of those names is very well stated in section 501(a) (i) and (ii). It goes to the root of what the committee is trying to do to pro- tect-certain national security information-and those names, indeed, would come under that rubric in my judgment. Second, I have read in certain newspaper comments on this pro- posed legislation that there are those who feel the failure to divulge a name involved may indeed prohibit or inhibit the publication of any particular story. I fail to follow that logic. It does seem to me any story that may be involved, any story that is susceptible to publication can be developed by a trained and professional journalist without the necessity of divulging a name which by definition is protected as national security information in your proposed legislation. Third-and again, this perhaps is more a matter of judgment than law-it seems to me you would be somewhat faced here with the difference between liberty and license, and not to overwork the old cliche, but under what conditions does one have the right to veil "fire" and how is a distinction shade whether you are impeding his first amendment rights or whether you are serving the greater good and protecting the greater number of people when fire indeed doesn't exist and the temptation for a stampede may be there. Those. sir, would be my observations. Mr. MAZZOLI. Thank you, Mr. Blake. I asked one of the previous witnesses the question that if a CIA agent at Langley were having a cup of coffee in the cafeteria and over- head a conversation in which the name of John Jones arose who was an undercover agent in Lisbon, and later the CIA agent retired from service, left service and divulged this information, it is not informa- tio n which, under the Department of Justice version would be covered because it doesn't come from a classified source. In the committee bill which is before us, that kind of divulgence would be a violation of 501 (a). I wonder, you are an expert in the field, you are a former member of the Agency. Can a CIA person, in the run of being in the cafe- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 teria, in the bookstore, at the water fountain, come upon that kind of sensitive information, or do they have to really receive it in an offi- cial capacity? Mr. BLAKE. Well, in the first instance, sir, if I may, I wear rather un- easily that label of expert. I have come to know in life there are very few experts in very few things. In a more substantive fashion I think I would reply as follows : the type of information, the model that you construct could happen either way. It could happen in an official sense or it could happen in an unof- ficial sense, and it is certainly true-you all live in the real world- as one dines in the cafeteria or as one may ride the transportation system in the Agency, one certainly can overhear conversations. In that case, it is certainly possible that the name of an individual, else- where protected by the act, would come in an unauthorized fashion to the attention of a third party. It seems to me, then, the test is what happens if that party divulges that information, that name, and in your proposed legislation, I think you rather establish a proof that has to be made which would be to impair and impede the intelligence activities of the U.S. Govern- ment. If I were the individual who overheard the name of a John Jones and in a subsequent conversation I mentioned to a friend who I knew was a mutual acquaintance of John Jones, oh, did you know John Jones is on duty in Lisbon, I don't think I am susceptible to prosecution under this act. My intent was not to impair and impede, it was probably more in the nature of gossip. Mr. MAZZOLi. Thank you. I have one last question. Do you think the bill should be extended to any other personnel than our bill now covers, which are intelligence agency personnel, agents? Somone earlier this morning talked in terms of FBI people as being in some cases in situations comparable to these undercover and could be extended these privileges, protections. Mr. BLAKE. Speaking as a citizen, and understanding somewhat the degree to which the FBI, the Bureau uses informants, it seems to me there may be somewhat a lack of equity if they were not cov- ered, but I must confess, I am not nearly as aware of the use of inform- ants and the safeguards that the Bureau goes to to protect their names as I am to the conventional intelligence personnel referred to in your bill. Mr. MAZZOLI. Thank you. The Chair's time has expired. The gentleman from Massachusetts is recognized for 5 minutes. Mr. BOLAND. We appreciate your presence, Mr. Blake, and the opinion of the Association of Former Intelligence Officers. Do you have any problems with any sections of the bill at all? Mr. BLAKE. No, I really don't, Chairman Boland. I noted with in- terest section 501(a) (1) (C), "who was serving outside the United States or had within the last 5 years served outside the United States." I noticed with interest the period of time that was chosen for the legis- lation, 5 years. I don't raise that as a problem that gives me great dif- ficulty, but I was wondering about the derivation of the 5-year period. Otherwise, I have no great difficulty with the bill, but I do have a Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 63 great amount of admiration both for the motivation that brought it about and the work that I hope will carry it through. Mr. BOLAND. Were you here this morning you would have heard some opinions expressed that certain sections are unconstitutional and particularly 501(b) which, of course, applies to any person who dis- closes information, whether or not they had authorized access to it or not. What is your judgment on that particular section 4 Mr. BLAKE. I stand in favor of the section, and when it comes to the constitutionality or lack thereof of it, I have given this matter some consideration. As I previously mentioned, I note that all members of the committee support the legislation. While I have not determined the precise educational background of all members of the committee, I would dare say 50 percent at least have attended law schools if not practicing attorneys, and it would seem to me that they are entitled to their judgment as well as to representatives of the Department of Jus- tice, and in the last analysis, the constitutionality of the bill can al- ways be tested in the Federal courts as bills are every day. Mr. BOLAND. Now, you mentioned the November 19'9 issue of CovertAction Information Bulletin, and you indicated there were a number of CIA names that were disclosed in that publication. Mr. BLAKE. If I may, Mr. Chairman, I did not take a position on the accuracy of the identification. I did observe that the publishers of the CovertAction Information Bulletin identified them as intelli- gence operatives abroad, but I would like the record to show that I did not identify any individual there at all. Mr. BOLAND. May I ask you whether or not are you familiar with any of the names that appeared in either that December publication or volume 6 of October 1979? I would presume that AFIO has-you are probably a subscriber to the CovertAction Information Bulletin, are you? Mr. BL.AKE. We from time to time buy a copy, yes, sir. I do recognize some of the names. Mr. BOLAND. You do recognize some of them. Of your own knowledge, do you know of any harassment that may have been undertaken against them as a result of the publication g Mr. BLAKE. Not as of this date. Mr. BOLAND. That's all. Thank you. Mr. MAZZOLI. The gentleman's time has expired. The gentleman from Illinois, Mr. McClory, is recognized for 5, minutes. Mr. MCCLORY. Thank you, Mr. Chairman. First of all, I want to state quite forthrightly the important con- tribution which I feel the Association of Former Intelligence Officers is making to this legislation and other legislation to strengthen the intelligence agencies and their capabilities, and I am sure that you and and your members are grateful for what I interpret as President Carter's new direction in foreign policy. including enhanced military capability, military strength, and likewise, his statements in support of revitalizing, I guess he calls it, the intelligence capabilities. Mr. BLAKE. Yes, sir. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. McCLORY. And this piece of legislation is just part, as you in- dicated, of a series of measures which can restore the agencies to their former strength. You don't have any problem, do you, with regard to legislation which would not only protect present agents, and that is the legislation which is directed against those who would reveal the identity of present agents as well as former agents, but how about the subject of other persons who may not be affiliated with the Government at all, they may just be sources of information, private individuals? It has been re- vealed, of course, in the exposes of the last decade the number of per- sons affiliated with large corporations who have served in a relation- ship with the CIA to provide information. Do you feel that those per- sons should be equally protected? Mr. BLAKE. I most certainly do, sir, because in the last analysis, as I understand your question, it is that category of individual that you have just described that ultimately is in possession of the information that the Government desires to acquire, and it is an employee of the U.S. Government who is the instrumentality through which that in- formation is acquired, and I do believe that had to be the thought, the motivation behind the language found in 501 (a) (ii) and 501(b) (ii) where the test is not employment or a member of the Armed Forces, but the test is the identity having been "an agent of or informant or source of operational assistance to" an intelligence agency, any indi- vidual. Citizenship is not mentioned there. It covers anyone who has that relationship. Mr. MCCLORY. Further, "intelligence agency," as defined in the bill that we have before us, the principal bill of which all the members are cosponsors, limits the application to the Central Intelligence Agency or any intelligence component of the Department of Defense. Would you not feel that it would be important to include the FBI and its covert activities, the agents that they are operating secretly for the FBI. Mr. BLAKE. Yes, sir, and I believe that I responded in the same fashion to a question formulated in different words from Chairman Boland. I certainly would agree with that. Mr. McCLORY. And do you see any reason why we cannot, as the Attorney General indicated, balance the rights of individuals, the individual rights, the constitutional rights of individual Americans with this need to protect our national security and our national inter- ests not only through providing a military capability, but likewise through an intelligence capability which would operate, and does operate in part secretly. Mr. BLAKE. I see no insuperable difficulty there whatsoever. Mr. McCLORY. I thank you for your constructive statement and for your very knowledgeable information provided to us, and for your support of this legislation. I yield back the rest of my time. Mr. MAZZOLI. The gentleman's time has expired. The gentleman from Florida, Mr. Young, is recognized for 5 min- utes. Mr. YOUNG. Mr. Chairman, thank you very much. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 I would like to thank Mr. Blake for being here today and for giving us his ringing endorsement, as one who has been on the firing line, so to speak, and knows the problems. His endorsement of the type of legis- lation that we are considering here today is greatly appreciated. Let me briefly say that I think that despite all of the attacks we have seen on our intelligence community in recent years, I really believe that as a member of this committee I have had a real eye opener, that it is time to level with the American people, to let them know just how much damage has been done to our intelligence capability, and I think also to let them know how essential and vital a strong intelli- gence organization is to the survival of this Nation. I would like to yield to the temptation to say that I told you so to a lot of people, but had there been more of us in recent years like your- self and some of us on this committee, had there been more of us in our Government in the last 4 or 5 years, we may have avoided some of the serious problems that are confronting the security of our Nation today. Let's just hope that it is not too late, that we do have time to recover and rebuild our ability to know what is going on in the world. And, as one of the cosponsors of this bill, and as the sponsor of another bill that extends the protection, as Mr. McClory dons, to the FBI, we appreciate your support. Mr. BLAKE. Congressman Young, if I merely may say, sir, as one who served the intelligence function of the U.S. Government for 35 years and retired within the last year, I am greatly gratified, as will be my colleagues, by your statement. Thank you, sir. Mr. YOUNG. Thank you, Mr. Chairman. Mr. MAZZOLI. Thank you very much. The gentleman's time has expired. Does anyone have followup questions? Mr. Chairman, Mr. McClory? Mr. Blake, thank you very much. We appreciate your attendance today and your helpful observations, and you have helped us draft a good bill. Mr. BLAKE. Thank you, Chairman Mazzoli. Mr. MAZZOLI. I would now like to call a panel of experts to join us, three representing the views of the American Civil Liberties Union, Mr. Morton Halperin, who happens also to be the director of the Cen- ter for National Security Studies; Mr. John Shattuck, director of the Washington Office of the ACLU; and Mr. Jerry Berman, legislative counsel of the Washington office of the ACLU. These gentlemen have testified on virtually every bill that we have had before us, and have always given us helpful information, candid information, and information which springs from their feel- ings about a lot of very important aspects of the Constitution. Mr. BOLASD. And Morton doesn't change a bit, does he? Mr. MAZZOLT. He has aged less. Gentlemen, welcome. You may proceed to deliver your general statements in any fashion you wish. (The prepared statement of Messrs. Halperin, Shattuck, and Berman follows:] Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 STATEMENT OF MORTON HALPERIN, DIRECTOR OF THE CENTER FOR NATIONAL SECURITY STUDIES; JOHN SHATTUCK, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION; JERRY J. BERMAN, LEGISLATIVE COUNSEL, WASHINGTON OF- FICE, AMERICAN CIVIL LIBERTIES UNION Mr. HALPERLN. Dlr. Chairman, I want to say again on behalf of my colleagues that we do appreciate the opportunity to be heard and even occasionally listened to by this committee. Dlr. BOLAND. It is a delight to listen to you. It is nice to have that kind of expertise before us. Dlr. HALPERIN. Thank you, Dlr. Chairman. Dlr. DIAZZOLI. I think the gentleman is making the distinction be- tween hearing and listening. I think they are two functions. Dlr. HALPERIN. I might say we rotate who gets to speak, and my turn has come up for this bill. The bill, as you know, DTr. Chairman, is designed to protect the identity of intelligence agents by making both people with authorized access to classified information and those without such authorized ac- cess subject to criminal penalties for the disclosure of the identities of agents, even if that information that they used to disclose the iden- tities comes entirely from public sources. And I think it is important to remind ourselves about how broad the term "agent" is as used in the bill. I think a lot of people have the impression that we are only talking here about people who go to work for the Government of the United States, and who are paid secret agents for the American Government. In fact, as you know, the bill goes much further than that and pro- tects people who are informants or sources of information or assistance to the Agency so that we are talking about revealing the identity of a vast range of individuals who might have in some cases quite casual relations or relations with the Agency in a single situation, or relations even with the Agency that they may not even consider as sensitive or even secret relationships with the Agency. And we think, therefore, that the bill as a whole has to be understood in terms of that very broad definition. Now, as I think was clear this morning, everybody who has looked at this issue has come away feeling that there are very different con- cerns as relates to private citizens and the press on the one hand, and Government officials and former Government officials on the other. And our view, very similar to that of Floyd Abrams as presented this morning, is that any effort to cover individuals who have not had au- thorized access to classified information is inherently flawed, that the first amendment stands for the proposition that once information leaves the confines of the Government and comes into the possession of those who seek to publish it, the Constitution does not permit prose- cution of those individuals. We think beyond that that the provision is unwise because it would cover a great many people and in a great many situations, which, as the Justice Department suggested this morning, would in fact have a very chilling effect on public debate and public speech. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 You have had quoted to you already, and we would quote again, the decision of Judge Learned Hand in United States v. Heine, a case often cited with approval by the Justice Department, by the Supreme Court and by a number of commentators. I think it is striking, if you look in our prepared text on page 5 at the description of what Heine did is very similar to the description as we understand it of what the Covert Action Information Bulletin and other people have done who have speculated about who might be CIA agents. And what Judge Hand said in that case was that it could not be unlawful to republish such information, to do what Heine did, which was to sift through materials. You were told this morning by the CIA that it isn't simply a question of getting out a book in the library and it tells you in it who the CIA agent is. I think that is right. It is a matter of sifting through information. I have had occasion to do that for my own research from time to time, although I have never published any of that, and I can tell you that it is not as complicated or as esoteric as I think was suggested to you this morning. It does not require extensive training in spycraft. It requires understanding a few basic rules about, for example, how the Biographic Register was made up, and knowledge about that is, of course, within the Government, not limited to the people who have had access to the names of agents. There are a great many people in the Government who understand how the Biographic Register was made up and who never, in fact, were involved with covert agents at all. There are a number of examples that have been given to you in other people's testimony. We have a number of others where publish- ing the names of agents would be important. One that has not been talked about that is a relatively recent one, of course, was the case of King Hussein of Jordan. The Washington Post published early in the Carter administration that he was, in fact, a source of CIA assist- ance and had been given some money by the CIA. I should say I have no idea whether that is true or not. What we do know happened is that the Washington Post, doing what many journalists often do, went to the White House and said, should we publish this? The White House said no, don't publish it, it is classified, and publishing it will injure the national security. Under the bill as it is drafted by the committee, I would say the Washington Post was then on notice that in publishing this, they would impair and impede the intelligence activities of the United States, would make it harder for the U.S. Government to get rulers of Arab countries or presumably any foreign leaders to cooperate if that information might be published. The Washington Post was told that by the White House, and I would say in those circumstances they would have great difficulty thinking they were not subject to the law as drafted. The problem with the Justice Department version, I might say, which says that you had to know that the information was classified, was that if a responsible journalist came to the Government and said should we print this, and were then told by the Government that it was classified, they would then be in a position of knowing that it was classified, and again publishing it in peril of being indicted. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 So I think that either of those two provisions would encourage journalists not to check with the Government before they publish information for fear that their conversation with the Government could be said to give them the requisite intent. I think that is not what you want. I think you want to encourage the situation that you have now, when most newspapers and most journalists will talk to the Government and will not publish things if they are persuaded it will in fact cause major injury. Our view is that there are a number of circumstances in which revealing the identity of the person would be essential to public debate, or would be necessary to understand the circumstances of a particular activity. Our view is that the intent provision, intent to impair or impede, does not provide much protection, because there are circumstances in which people will criticize activities of the intel- ligence agencies, and which that very criticism and public debate would be taken as evidence of an intent to impair or impede the intelli- gence activities of the United States. If the reporter for the Washing- ton Post had written an article saying it is counterproductive to the interests of the United States to have the CIA have covert relations with foreign leaders, and then 2 months later published the fact that King Hussein was on the payroll of the CIA, he might well be said to be interested in impairing or impeding that particular intelligence activity, and therefore be under the provision of the bill. And I think it would have, as the Justice Department suggested, a very chilling effect on public debate. We simply do not think, in short, that there is any way to draft a provision which applies to individuals that have public access to infor- mation which would not cast such a wide chill over other debate, and other discussions as to be unconstitutional and unwise. Now, when we turn to the other section of the bill, that relating to authorized access, we do not have the same view. Our position is that it was limited to people who had authorized access to information. and would not cast a chilling effect over public debate in general, provided it was limited to people who had authorized access to information, and provided it was limited to the information that they acquired in the course of their official duties. We have several specific objections to the bill as drafted, to section 501(a). The first relates to the scope of the information which is covered, and I must say, Mr. Chairman, that we had difficulty deter- mining what the intent of the drafting was in that section. In our view, the scope has to be limited to information which is acquired during the course of the official duties of the individual. And in the colloquy that you had this morning about whether or not it could be something that they heard over the water fountain or in a particular piece of paper or not, I think what we are saying is it has to be in- formation that you acquired as a result of, in the course of your official duties, so that it could be somewhat broader than information that you were given specific authorized access to, but it could not cover informa- tion that you later learned. And indeed, this very issue, and one that is raised even more clearly by the Justice Department's alternative formulation, was discussed in the case which the Justice Department always cites with approval Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 69 and enthusiasm, a case called United States v. Marchetti. There the district court had issued an injunction against Marchetti which pro- hibited him not only from revealing classified information, but from revealing any information about the CIA, and its reasoning was simi- lar to that of the Justice Department in discussing this bill, namely, that having been in the Government. Mr. Marchetti acquired a certain expertise and gave a certain credibility to information which he re- peated, and therefore the district court enjoined Marchetti from re- printing something which had already appeared in public, from using public sources for his information. And the court of appeals struck that down in an opinion which otherwise, in all other respects, sustained the position of the Govern- ment. What it said was that the first amendment limits the extent to which the United States, contractually or otherwise, may impose se- crecy agreements upon its employees, and enforce them with a system of prior restraint. It precludes such restraints with respect. to informa- tion which is unclassified or officially disclosed. And we think the thrust of that. as well as a number of other de- cisions suggests that even as to former officials, you cannot publish them for reordering and analyzing unclassified information. Our second objection has to do with the failure to require that the activities are lawful. The third objection has to do with the fact that we believe these provisions should be limited to situations in which the revealing of the name of the individual actually places an individual in jeopardy or could reasonably be expected to place an individual in jeopardy. And I would point out, Mr. Chairman, that these three proposed changes that we suggest are in fact included in the provision on this subject contained in H.R. 11245, which was introduced in the previous Congress by the chairman of the full committee. In addition, we believe that there should be an exemption to permit an individual to reveal the fact that he or she was a CIA agent.. People should be able to reveal their own involvement with the CIA without fear that they are violating the law. We would go beyond that to suggest that the grand jury provisions should not be available to compel a journalist to reveal his sources. The problem there, Mr. Chairman, is clear. If the name of a CIA agent is published in a newspaper, and if Congress has made it a crime for a government official with authorized access to reveal the name, then a journalist can be called before a grand jury and compelled to reveal their sources of information, because they are, in fact, the only witness to this crime, and we think that should not be clone, that there should not be this chilling effect on the press, and that there- fore people should not be subject to grand jury calls to investigate that issue. Now, I should point out that that would not apply to a former Government official. That is, a former Government official could not publish a newsletter, print the name of an agent, and then be free from investigation, because as a former official, they would be subject to the criminal penalties provisions of the bill. There was considerable discussion this morning and previously be- fore this committee about whether you need such a bill or whether Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 the general espionage laws cover this kind of release of information. In our view they do not, and we think that it is important that if Congress consider this bill, that it consider it in the context of the espionage laws, and with an understanding of what its view is as to the scope of those provisions in the law. More generally, let me just say in conclusion that it continues to be our view that we need a comprehensive charter for the intelligence agencies. We regret the fact that it has taken the administration more than 1 year to come forward with its own view on a comprehensive CIA charter. We welcomed the introduction of the bill in the previous Congress. We thought that was the place to start. We thought a pro- vision on this subject within that context was not objectionable. That continues to be our view. We do not think that there is an urgency about this issue which suggests that it should be treated outside the context of a comprehensive charter. We think the Congress ought to legislate its views of what the CIA ought to do, it ought to legislate what limits there are on the intelligence agencies, and what kind of informants and agents can be used by the intelligence agencies, before Congress establishes criminal penalties for review. The discussion of a comprehensive charter has gone on for a very long time. I think if there is a desire to pass such a bill, as the President reiterated in his state of the Union message, and we are all trying to read the tea leaves about what the President really wants, what he said in the state of the Union message was that he wanted to deal with this issue in the context of a comprehensive charter. We think that is the way to deal with it. We think within the context of a compre- hensive charter a provision on this issue would flow naturally. We think as a separate matter it would raise substantial problems, and that therefore the better wisdom is for Congress to move forward urgently with a comprehensive charter. I would like to stop there, Mr. Chairman, but perhaps see whether either of my colleagues want to make an opening comment before we go to questions. Mr. MAZZOLI. Mr. Berman? Mr. BERMAN. Just to state that one of our concerns goes to the way this bill has simply expanded from a narrow concern and a legiti- mate concern over the publication of classified information which puts our CIA agents abroad in jeopardy, the focus of the intelligence char- ter provision 2 years ago, to one which is now protecting all agents, em- ployees, sources, informants, and in a sense, all CIA operations, at least from public discussion. There is a confusion in the legislation, or at least it is not clear whether this is even a names of agents bill, in the sense, Congress- man Mazzoli was describing. It is not limited to exposing the name of an agent. It also covers the revelation of the identity of an agent which may mean information where you don't reveal the name of an agent. The story, the national security matter that you are talking about, the foreign policy debate may reveal that identity. It becomes even more vague if you raise the question "reveal to whom?" Reveal generally to the public that reads the New York Times? Reveal to someone at a cocktail party? Or reveal to the Soviet Union? Because executive leaks of information in foreign policy de- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 bate may in fact reveal foreign sources abroad although we never know that it is revealed. It is revealed in the Soviet Union. I think that it is a sticky wicket. As you think more and more about this legislation, the examples become less obvious than the U-2 spy flight brought up this morning, Gary Powers, or the King Hussein story. What if you said it wasn't King Hussein but a high Middle East potentate? What if you said it was someone in Jordan, but at the top of the government? Would these be a revelation? So with the potential chilling effect spreading from there, I think that we are talking about closing down substantial discussion about the foreign policy and intelligence matters of this country. I also want to make one final comment in regard to the charter. If you look at the record, there have really been rare instances of revela- tion of intelligence agents in the press, and that seems astonishing over the course of investigations, lawsuits, press security of the intel- ligence agencies, much of it brought on by themselves. The emphasis on a charter is that it was to establish the ground rules on what the agency can and cannot do. It would establish a climate of trust and some ground rules that the public could understand. It might do more to protect the names of agents from guided and misguided people who think that revelation of their names is the only way to have account- ability in this country for our intelligence activities. So we come back and say, let's do this bill within the context of a comprehensive charter. Let's narrow the focus back to the agent in jeopardy. And let's talk about Government officials and not about the press and public in general. Thank you, Mr. Chairman. Mr. MAZzoLi. Thank you very much. Mr. Shattuck? Mr. SHATTUCK. No, thank you, Mr. Chairman. I would be glad to answer any questions. Mr. MAZZOLI. Let me say, what you say certainly has a lot of merit, and we wrestled this morning, I think it is evident from the questions the committee asked insofar as 501(b), dealing with the unauthorized disclosure of information not acquired in any official capacity, or which itself is not classified at the time, or which has been previously divulged, causes the committee some concern. There is less concern expressed about the 501 (a) area where an individual comes in con- tact with it in his or her authorized capacity and divulges it. But I think what has really forced the committee to take some action is really the rather outrageous conduct and cavalier behavior of some of the people who-ago in, I can't challenge their motivations, though it does seem from my perspective that they look like they have mischief on their mind-really look like they are out to destroy one aspect of foreign policy of this country. They do jeopardize the ability to perform, if not the safety, of people in the intelligence agency, and it forces a group of people to take action which is in some cases faulty and may run counter to some persons' understanding of the Consti- tution, but it is a response to a very potent problem. And I wonder, you obviously don't share our concern in one respect. I mean, can you look at Covert Action Information Bulletin and read names of agents and not be a little bit perturbed or concerned or apprehensive about that kind of freedom and license? Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 72 Mr. ITALPERIN. IV, all. Mr. Chairman, I recognize that that is a very, hard subject, and I appreciate the concern of the committee about it. Let me say two things about it from my personal perspective, and then my colleagues may want to say other things. First, I think it is important to understand that we are talking about people whose identity as employees of the CIA is not as well guarded as the more secret employees of the CIA. That is, the CIA- Americans who work for the CIA are in two categories, those who, are undercover employees of the United States, who pretend to be working for business firms, insurance companies, and other kinds of organizations, whose names do not appear in the Biographical Reg- ister or the other material that you see, whose names do not appear, in the Embassy directory. Those people's names have not been pub- lished, as far as I am aware, and nobody knows how to find those people and get at their names. The names that are published in these bulletins are people who are under what the Agency would always refer to as light cover. That is, they are people who admit that they work for the Government of the United States, who appear on Embassy rolls as Government employees of the United States, and whose cover has been known for years by the CIA to be extraordinarily vulnerable to penetration. And I think the CIA has always operated on the assumption that hostile intelli- gence services could figure out, by the methods that the Covert Action Information Bulletin uses and that others use, to figure out who they are. People where the CIA has felt it was important to keep their iden- tity secret have been kept secret in a different way that has not been touched by this. And as I understand it, while there are a number of reasons for the secrecy, one important one is that foreign governments don't like to have people on our Embassy payrolls who are publicly identified as CIA agents, and therefore there is this light cover which often was referred to in the Government as diplomatic cover. And those are peo- ple, when I was in the Government, for example, I would often go to meetings with people and see them and be told their names, and they would be people who, 2 or 3 years later, would go abroad and be in this category of agents. So while, without getting into the merits of whether they ought to do it or not, I think we have to understand that it is not the most secret agents of the CIA. The second point I would make is the point that Justice Stewart made in his opinion in the Pentagon Papers case ; namely, that it is the obligation of the executive to keep secret that which has to be secret, and under the first amendment, he said-and I think he went further than I would, but he said that the executive was free to keep secret whatever it wanted to about national security, that there was no constitutional obligation of the Government to make this kind of information public, but that once it was made public, the press and citizens had an obligation to do with it what it wanted, to analyze it, to write about it, to reprint it or to publish it. If the Government was concerned, the Government should look to the process in that case Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 73 of how the times got the Pentagon papers; that is, who gave them. the access to the copy, and in this case, I think the Government ought to look to, as it. is starting to look to, what it ought to make public. It has stopped, of course, making public the Biographical Register. It has stopped making public the telephone books of embassies. And I think it has got a constitutional right to keep those things secret to protect its agents. Mr. MAZZOLI. Unfortunately, my own time has expired. If I have time, I will try to follow up on that. The gentleman from Massachusetts, Mr. Boland, is recognized for 5 minutes. Mr. BOLAND. Thank you, Mr. Halperin. It is always a pleasure to have you before this committee. You have been here many times, and I think you have given this committee some valuable advice and suggestions. Mr. H ALPERIN. Thank you, Mr. Chairman. Mr. BOLAND. As I understand your opposition to, or some of your oppositions to it, it. is based on first of all the scope of the proposal it. self, where you indicate in your statement that the ACLU believes that any restrictions on dissemination should be limited to informa- tion which a person acquired in the course of his official duties, and you would stop it right there. Is that correct? Mr. HALPERIN. That is correct. Mr. BOLAND. And then you go on to say in the statement than an in- dividual who has had authorized access to certain names should be free, after he or she leaves the Government, to sift through unclassi- fied material and to publish the results of that analysis. Mr. H aLPERIN. Right. Mr. BOLAND. Do you really mean that? Mr. HALPERIN. Well, I think you can't do it as a subterfuge, that is to say, if you have been given authorized access to the name of an agent, we don't mean to suggest that you could then publish the name of that agent and show how you could derive it from public sources. What we are saying is if there was the name of an agent that you did not have access to and you simply looked at public sources and de- duced who that agent was, that you would be free to publish that information. Mr. BOLAND. And then, another reason on which you base your op- position to this proposal is that you believe that criminal penalties should apply only when the revelation takes place in a manner which results in injury to the individual or jeopardizes the safety of such an agent or employee, or could reasonably be expected to do so. What about the loss to the Government of the services of these in- dividuals? Your only concern is injury to their person or that which jeopardizes their safety. What about the loss of the service of these people, for example? Mr. HALPERIN. Well, there again, I would say the Government has a right to try to protect that by keeping the information secret. I don't think that kind of injury rises to the level that criminal penal- ties should be attached to the release of the information. Mr. SHATrucx. Could I just add to that that if it did, it would, in our understanding, I think, be covered by the current espionage laws. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 In other words, if it rose to the level of damage to the national defense within the meaning of the espionage laws as they now exist, and there were an intent on the part of the person to engage in such damage, then it could very well be that in that area at least the espionage law would cover it. Mr. BOLAND. Is that really so, though, in that area? Mr. BERMAN. Well, I think it could be covered if you accept the broad reading of the Justice Department. I think there is a very serious question whether any of the espionage laws, except in time of war and certain narrow circumstances, goes to publication. But otherwise, it is to covert transfer to a foreign government. Espionage, read that way, is a-it can be read that way. It is a troubling proposition which is why I think that we are generally in favor of attempting to revise the espionage laws to get down, not only to cover espionage, but the protection of secrets from unauthorized disclosure, but with respect to Government employees who have ac- cess to that information, not with respect to the press and private persons who acquire access in one way or another and then seek to publish. We think there the balance shifts, the responsibilities are different, the public's right to know and the first amendment take precedence. And while we are debating what should be secret in this country, and legitimately so, we do have to be able to debate our in- telligence activities and we do have to debate foreign policy matters. We think it would really be in the wrong direction to use or respond to the current crisis and react in a way which removes accountability and removes the public sense that matters are discussable and debat- able in this country. Mr. BOLAND. You would prefer to leave this whole thing hang until we get to the charter legislation because these issues are more nar- rowly drawn and defined. Mr. BERMAN. Well, the agencies have been complaining about this problem for a very long time, and they have not moved very fast with this charter, and I don't think anything in Iran or Afghanistan, serious as those matters are, have changed the situation with respect to the names of the agents, the Freedom of Information Act, or Hughes-Ryan. Those are continuing problems. If they wanted to come up in March of 1978, after you introduced the comprehensive charter, and put a counterproposal on the table, we would have a charter now, or perhaps we would be close to having a charter, but suddenly, the crisis and names of agents have been linked together. Now the agencies believe it is an appropriate time to come forward, get the authorizations and standards that they want, and per- haps leave the charter in the train station. I am afraid that if the kind of package that Senator Moynihan proposed last week, which is what the agencies say they need, and maybe on the merits they need, is passed, I don't think that they are going to come back next year and support the charter restrictions to protect the rights of Americans. That will have gone by the wayside. Mr. MAZZOLI. I am sorry, the gentleman's time has expired. We will have a second round. The gentleman from Illinois is recognized for 5 minutes. Mr. MCCLORY. What surprises me about your testimony today is that I think we have here, you know, three of the top representatives of Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 what I would call the liberal community, representatives who purport to champion individual rights. Yet, at the same time you are suggesting a form of discrimination between individual Americans in which you would provide protection for CIA agents but not another American who might be performing just as much or just as important a contribution to our country under cover. Likewise, you would be critical of Senator Moynihan, who I think represents the en- lightened liberalism of today, who recognizes that our position in world society is such that we are diminishing our influence and our position of leadership around the world at least partly because of the secret activities that are carried on by our adversaries. including right here in Washington, D.C., as he has indicated, and I don't think you are suggesting any steps that we should take against the Soviets absorbing and utilizing our secrets. At the same time it seems to me that the position you are taking impairs our ability to protect our covert operations. Mr. HALPERIN. Let me say a couple of things about that. First of all, we have said to Senator Moynihan, and I will say again to you, that we would be delighted to support a bill which restricted the Soviet ability to monitor the phone and other communications of Americans within the United States. It is a problem he has pointed to. He has not introduced any legislation that I am aware of. We think Americans are entitled to have their conversations protected from the KGB as well, and would be delighted to support that. Second, we do not propose to narrow the definition of agent in the bill. We simply point out that since the definition is so broad, that the criminal penalty should be limited to people who had authorized access to that information. Mr. MCCLORY. In other words, it covers other individuals. It covers just people, American people. Mr. HALPERIN. And we don't propose changing that. We have not recommended an amendment to that position. Mr. MCCLORY. Well. as I understand your testimony, you said you wanted it limited to CIA agents. Mr. HALPERIN. No; we want it limited to CIA agents, sources, or individuals whose lives are in jeopardy as a consequence of the release of classified information. Mr. MCCLORY. But how about the individual who is identified? Mr. HALPERIN. If his life is in jeopardy, we would propose to cover him in the bill. Mr. MCCLORY. And likewise, you suggest that there should be proof, or there should be some showing as to what the jeopardy is. In other words, you would want us to identify the foreign agent or the person who would pose the threat, and that individual it might not be possi- ble to identify. The further point of discrimination is you want to discriminate between the journalists and the agents and the individual Americans, and I think you misread at least what the law of the land is, because I don't think that journalists, if they have unique information with regard to the commission of a crime should be protected from their obligations, the same as every other American. And I don't know that there are too many journalists who disagree with that. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. HALPERIN. Well, I think, Mr. Chairman, I think we agree that the Supreme Court has said that you could compel that testimony. That is precisely why we think Congress should legislate a protec- tion so that you need not do so. Mr. MCCLORY. In other words, you are disagreeing with the inter- pretation of the Constitution as interpreted by the Supreme Court. Mr. HALPERIN. No; we are simply suggesting that Congress can give protections to individuals beyond those that the Supreme Court has said are required by the Constitution. Mr. MCCLORY. Also, I think you misread the constitutional re- straints upon our right to legislate by referring to the Marchetti case, which referred to prior restraint, which is one thing, whereas what we are legislating on here is the actual commission of a crime and the punishment for the offense that we have denominated as a crime. Mr. BERMAN. There the issue is what can be criminalized under the Constitution. The distinction that we are making is not simply for the press but the public, and we are not trying to make a distinction between the New York Times and anyone else in the public, and we are standing with respect to protections that the Constitution has given as articulated by the court, which is that once information is in the public domain, it is in the public domain, and that it is unwise, and I think would have a serious chilling effect, as Mr. Abrams pointed out this morning, to try and go beyond that and make public information punishable. Mr. MAZZOLL I am sorry, the gentleman's time has expired. We will have a second round. The gentleman from Florida is recognized for 5 minutes. Mr. YOUNG. Mr. Chairman, thank you very much. Mr. Halperin, all of the witnesses who have testified on this matter so far have spoken strongly condemning the actions of Mr. Agee and some of his associates. Your statement did not mention that. What is your attitude on Mr. Agee and his revelations? Mr. HALPERIN. Mr. Chairman, we are here representing the Ameri- can Civil Liberties Union, and I have to say that the American Civil Liberties Union I think represents Mr. Agee, or has represented him in the past, and therefore I think it is not appropriate for us to make comments about whether any of us individually would approve or disapprove of any of the things that he might have done. Our position, I think we make clear in the statement, is we want to draft a constitutional statute which would punish Mr. Agee's conduct in revealing the names of agents. Mr. YOUNG. Let me ask the question minus Mr. Agee's name. Do you think there should be protection for agents from exposure by people who have served as fellow agents, or someone who serves in the Government and has access to the identity of these agents? Mr. BERMAN. Yes; I think that is the point that we have made, that along the lines of your bill and the Bentsen bill and the Wright bill, where you are talking about "identities" learned in the course of duty and based on information classified, appropriately classified within the Government, that a criminal statute could punish government employees for revealing those names. We would try and limit the scope Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 of that to where these persons are in jeopardy or will likely be placed in jeopardy for their lives, their safety. We are not opposed to nar- rowly drawn legislation like that. I think that we are more in line on this bill with the criticism and concerns raised by Mr. Abrams this morning and the Justice Department itself in saying that part 2 of this legislation, 501 (b), raises substantial first amendment questions. How- ever, we are not unmindful of the problems that our intelligence agen- cies have. Mr. YOUNG. Well, I was aware of the fact that the ACLU had repre- sented Mr. Agee in the past, and that was the reason I wanted to get that on the record. Despite that, you don't have any problem with try- ing to protect our intelligence operations and the people that are in- volved. Mr. BERMAN. We have supported charter legislation which would spell out the authorizations for the intelligence agencies. All we have asked is that a balance be struck, and we think that it can be struck, between national security concerns and rights of Americans, first amendment values, and freedom from fourth amendment surveillance. We have been working for that balance as long as this issue has been before the Congress. Mr. YOUNG. Of course, there are those who question whether "chart- er legislation" is an appropriate safeguard of intelligence operators, or whether it would in fact further hinder the ability of the United States, and I think, you know, that is going to depend on what words are in the charter. Mr. HALPERIN. It is certainly going to depend on the words, but I think it is more than that because I think that the issues of what kind of surveillance of Americans can be conducted by the intelligence agencies is too important to be left to Executive orders, and the issue is not hindering Mr. YOUNG. Excuse me, too important to be left to- Mr. HALPERIN. To Executive orders, which is where it is now. That is, the charter would substitute for an Executive order. The Executive order imposes a number of restrictions on the intelligence agencies. In some ways, we don't think it goes far enoughi, but it is certainly a structure of restriction. Mr. YOUNG. And certainly you and I have a strong disagreement on that. Mr. HALPERIN. And nobody, I would also say that nobody under- stands what it means. I have been spending a fair amount of time trying to understand it and it is not, I think, comprehensible. And I think therefore the issue is not whether there are restrictions or not. The issue is whether they are comprehensible or not and whether they are legislated or not, and I think they ought to be legislated. Mr. YOUNG. Let me move away from that particular point now to another. I am sure you are aware of Mr. Shevchenko's recent revela- tions that some 300 to 350 Soviet employees at the United Nations are either KGB or GRU agents. You are probably aware of statements made by the present Director of the FBI, and also his predecessor, that there are more Soviet agents in the United States than the FBI can keep track of. In view of this tremendous involvement on the part of the Soviets in our own country, and the fact that the FBI has responsibility for Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 foreign counterintelligence programs, would you agree that this same type of protection should be provided to the FBI, to their agents, to their informants, people who might have families back in the Soviet Union that could be harmed because of an involvement? Do you thin]: we should expand protection to those people as well? Mr. HALPERIN. I think if there was a narrow drawn statute that we otherwise thought was appropriate, that there would be no reason why it should not apply to an agent because he happened to be run by the FBI rather than by the CIA. Mr. YOUNG. Thank you very much. Mr. MAzzoLi. The gentleman's time has expired. Mr. Berman, you made a statement a moment ago that I think gen- erally was that we need to debate our foreign policy and conduct de- bates on intelligence matters and intelligence goals, and I could not agree with you more, and I think this committee in many respects is good for that principle. I ask you the focus question : is it important to name names to con- duct this debate? Mr. BERMAN. Well, the point I was trying to make is there are cases where I think the name might be essential. I think that the King Hussein story without that name makes no sense, and it does not have the same impact to tell you what kind of office is involved-that is a judgment that you have to make, that the office alone does not tell you the extent of our covert relationships with a foreign country. There is the second problem, however, where you may not be nam- ing the name, as I suggested, but where the information may reveal that name to the Soviet Union, to someone else, to someone where it would affect national security, where you have never named the name. Mr. MAZZOLl. Of course. But I think the gentleman would have to agree, at least the committee has made an effort to write in standards of intent beyond just the mere disclosure so that I think the com- mittee cannot be faulted in trying to focus on just the divulgence of names to continue the debate, to insure the debate, to foster this debate, at the same time, to say do so without naming names. That is all we ask. We plead don't name the names, and even then, only the names of overseas agents, only people who have been there within 5 years, so that we are trying not to have this thing a blunderbuss, and while I would respectfully disagree with you, I do think we could conduct this debate in a very lively, intelligent, productive manner without naming names. Mr. HALPERiX. Let me just say, we appreciate that the committee has tried to narrow it, and we don't mean to suggest at all that you have not been sensitive to these constitutional concerns. But it seems to me that the fundamental principle of the first amendment is that while the Government has the right to keep information secret, that once the press or anybody in the public has access to information, the question of whether that information is useful to the public debate on an issue is not one that the Government can make for the individual. That is the argument we had in the Penta-ion Papers case, it is the argument we had in the P?'ogressire case. I think it is the argument we have here, that absent a very compelling Government interest in a special situation, the Government does not have the right to make that Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 79 choice for the Washington Post or for the Covert Action Information Bulletin, or for a citizen who wants to stand up on a street corner and say it. If he has never worked for the Government and he has learned that King Hussein is an agent, you may think he can make his politi- cal without naming the name, but you don't have the tright under the first amendment to make that judgment for somebody else. Mr. MAZZOLI. Well, I appreciate your position very much, and it is bolstered by years of work in the field, and I thank you for it. Let me shift gears for just what little time I have remaining. I mentioned this morning, I think it was in response to one of the statements made by Ambassador Carlucci, that there are plenty of avenues available for citizens who have complaints to register without divulging names, and without making the case, in a sense, public; and I mentioned then the possibility the committee might be disposed to insure that, to provide for that kind of citizen input which then might obviate the necessity of some of the thoughtful people who have great concern about and misgivings over the national direction, and seek to change that national direction by divulging names. Do you see any merit to trying to insure that and if so, what kind of citizen avenue should this committee give thought to? Mr. HALPERIN. Well, I think there is some merit to improving those procedures, although some of them already exist. I think the most im- portant one would be to establish a charter which included civil reme- dies so that in cases where people's individual rights they thought were being violated by intelligence agencies, they could go into court, make the allegations there, and then the question of whether you had to have the name of the person to make it would be contested in the court. So I think that is the single most important addition that could be made. But I guess again I would say that that does not in any way reduce the right of a citizen to make the information public, that the constitu- tional right that you have to make public information which has come into your possession is not reduced because the Government has given you a governmental channel in which you could bring the complaint if you wanted to do that. Mr. MAZZOLI. I thank you. My time has expired. The gentleman from Massachusetts is recognized. Mr. BOLAND. Did I understand you to say that there have been few disclosures of the names of agents? Mr. BERMAN. I said that in the context of all the investigations, revelations and press attention with respect to the intelligence agencies, that we know of few instances where names have been revealed. Mr. HALPERIN. I mean, the clear exception, of course, Mr. Chairman, is the Covert Action Information Bulletin, which reveals more names than every place else put together. Mr. BoLAND. Yes. Mr. BERMAN. Well, let me put it Mr. BOLAND. That is one of the big problems we face, isn't it, really? Mr. BERMAN. Well, if you passed, for example, without talking about getting the Covert Action Information, putting aside that, if there was a statute which went to Government officials who acquired Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 access to information, it would-Mr. Agee would be on notice, if ho were still in the Government, that if lie left the Government and pub- lished those names in CIA Diary, that that would be a violation of the criminal laws of the United States. But to retroactively solve this problem, to retroactively address a case, we are pointing out that it may have ramifications far greater than that, and instead of solving the case, you are going to open up problems and inhibitions on the first amendment. And it is Mr. HALPERIN. I think the exchange between the CIA and the Justice Department this morning underlines the dilemma of trying to deal with that because what the Justice Department said was the way to deal with the problem is to limit it to the use of classified informa- tion or former Government officials. I think what the CIA then said is what I believe to be true ; namely, that that doesn't give them the pro- tection that they need, that the people who want to publish the names of agents, the Covert Action Publishers, don't need the advice of Mr. Agee or any other former official, they could do it without that, and don't need access to classified information. They could demonstrate in every case where they got the information from public sources. So the dilemma that you are in, if you want to try to do something about this problem retrospectively, is that the information is already public, the techniques are already public, and therefore, even if all the people now working on that problem were to vanish, a group of new people who never had access to Government officials, who never talked to anybody in the Government, could take the techniques that are laid out in print and do what they now do. And I think given that situa- tion, whatever one's view may be about whether they ought or ought not to publish those names, I think that cat is out of the bag, and that there is no way constitutionally to deal with that problem. The way to deal with it in the future is not to publish the kind of information that they use to make that analysis. Mr. BERMAN. May I-one more scenario which would be that let's say we pass the second part of the statute, and someone really in- tended and believed that he had to reveal all the names in the CIA. It would be clear that even though you have a provision which reaches beyond the United States, that that person or group would go to a country which has no extradition treaty with the United States and would publish the names there. Those names would come back into the United States, and would we say that the statute would reach the Washington Post if it chose to publish something that was pub- lished abroad on a second bounce? I think that instead of solving the problem, you will push it abroad, but you will be left with the secondary problem of what can the press discuss and not discuss, and what is their judgment about when is a name essential or not essential to talk about public matters of national security import. Whereas, I think the real issue is to focus on Govern- ment officials with respect to their access to information and protect that, and with respect to public source information, to do what CIA did with the register, which is to take it out of the public realm. And if CIA has secret operations which indeed have to be kept secret, as Mort Halperin suggests, provide better cover. But I don't think you are going to solve this problem with this legislation, but you will open up others. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. MAzzoLa. The gentleman's time has expired. The gentleman from Illinois is recognized for 5 minutes. Mr. MCCLORY. Well, I don't interpret this as a bill of attainder, and I don't interpret it as just the Agee legislation. I think the outrage which the American people feel because of Philip Agee's conduct, which I believe the Director of the CIA has denominated as traitorous, is something with which the Congress must deal, and something with which the American people want us to deal. And in the Pentagon Papers case, to which you have made so much reference, in Justice Stewart's words, he says, "This is not to say that the Congress and the courts have no right to rule. Undoubtedly Congress has the power to enact specific and appropriate criminal law to protect Government property and preserve Government secrets," and that is precisely the prerogative that we are exercising in consideration of this leislation. Could I ask you, are you familiar with Attorney Melvin L.- Wolfe? He is a representative of the ACLU, is he not, an attorney for the ACLU? Mr. HALPERIN. He was the legal director. He is now in private practice, but he is a cooperating attorney and is in fact now repre- senting Mr. Agee, I should make clear, in his passport case on behalf of the ACLU. Mr. McCLoRY. Mr. Wolfe stated, as to Agee's activities, "frankly, we think his activities improve the Nation's security. Anything that increases public knowledge of the CIA's clandestine activities con- tributes to world peace." Do you agree with that statement by Mr. Wolfe? Mr. HALPERIN. I think he was expressing it personal view. My per- sonal view would be different than that. But I don't think that the Congress can legislate on theories of what does or does not help the national security. I think that people's political views are not properly the subject of legislation, and I think that is the problem with this "impede" standard. Mr. MCCLORY. Well, if you are referring to political views, the public demand for legislation, I think you are entirely wrong. Mr. HALPERIN. No, that is not what I am referring to. I am referring to legislation which would say something which is not otherwise a crime is a crime because it impedes the proper functioning of a par- ticular agency of the Government, and whether that agency is the Agriculture Department or the Federal Trade Commission or the CIA, I think individuals have a right to seek to criticize and to stop particular activities of an agency of the Government that they don't approve of. Mr. MCCLORY. Well, in connection with enactment and interpreta- tion and application of criminal laws, we look to the intent, and this legislation describes the activity that a person carries on in divulging the names or secrets or sources or whatever it is, it is with an intent to impair or impede the foreign intelligence activities of the United States. I regard foreign intelligence activities as being as con- sonant with our national security as military activity on behalf of our Nation to protect us against the-to protect the rights and liberties which the ACLIT purports to espouse, and the thing that intrigues me is how you can find fault with legislation which is designed to protect Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 82 us against a totalitarian KGB and other secret governmental activi- ties of our adversaries, which would destroy the very liberties we are trying to preserve. Mr. HALPERIN. The question, I think, is whether this bill does pro- test us against the KGB in a way that permits Americans to continue to exercise their first amendment right to criticize the Government. If I think a particular weapon system or a particular CIA program is ill-advised, I should have the right to write that or say that without fear that I will be prosecuted for violation of the espionage laws. Mr. MCCLoiY. But it is a legislative prerogative, and an appropriate legislative function for us to determine whether or not the activity of a person who, with intent, seeks to impair or impede our intelligence activities which are consonant with our national security interests, are accepable, and whether or not to make that a crime and to punish the activity. Mr. HALPERr\. That is a standard that Congress has never used before. The espionage laws talk about an intent to injure the na- tional defense of the United States or give advantage to a foreign power. That is a very different standard. Mr. MCCLORY. Well, we are in a new age, and we are plowing new ground. New legislation always supplements existing legislation or prior legislative activity Mr. M AZZOLr. I'm sorry, the gentleman's time has expired. The gentleman from Florida is recognized for 5 minutes. Mr. YOUNG. Mr. Chairman, thank you. Mr. Halperin, what is your position where you may have a situa- tion like this: I disagree with the person sitting next to me. You protect his right to do something, but by him doing that, he may in fact jeopardize one of my rights. Now, which side do you come down on? You can't be on both sides. Which side do you take? Mr. HArPERIN. I think it depends on the specifies of the issue. I think the first amendment says that the Government can-the Con- gress can pass no law abridging freedom of speech and freedom of the press, and I think that means even if you don't like the speech or the press, or even if you think it violates your rights. Mr. YOUy G. But earlier, Mr. McClory established for its that that has already been abridged by the fact that you do not have a legal right to go into a crowded room and yell "fire" unless there is a fire in the room. Mr. HALPERr\. Falsely. Mr. BERMAN. Unless there is a fire in the room. Mr. HALPERr\-. Right. But this bill is just the opposite. It only makes it a crime if you tell the truth. Mr. Youvr,. But the point is that your right to use the word "fire" has been abridged, correct? Mr. HALPERIN. That's right. There are clearly narrow circumstances in which you can do that, and we have suggested one here. W' Te think Congress could pass a statute which would clearly be constitutional which would say if you choose to get access to the names of agents and then you go and make them public, that you can be punished Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 for it, and we think that is the heart of the issue. And we think a statute could be written. Mr. YOUNG. Well, the point that I am making is that suppose that I believe that the Constitution has more than one article, and it gives me other guarantees and other protections as well as the first amend- ment, which I support every bit as strongly as you do, by the way. But let's say that I am really strong on the concern for keeping the security of all Americans secure. Let's say that I believe strongly that what the handful of people like Agee does and wants to do, ac- cording to his own words, is to disrupt CIA, which I believe is essen- tial to maintaining my security. And let's suppose that 95 percent of the people of the country believe like I do, that we want our security protected. Does that give the other 5 percent the right to go out and do things that we believe threaten our security? Mr. BERMAN. Absolutely, in some circumstances. They may be saying things which you don't like, they may be taking a position which publicly demoralizes the Government. You may strongly disagree with them. But I think that that is the foundation of the Bill of Rights and the first amendment, and it is to protect minority opinion, it is to protect the public's right to discuss issues, and all we are saying is that we are very troubled by a bill which would attempt to make secret and punishable that which is public. Mr. YOUNG. But what about the majority, the rights of the majority? Mr. BERMAN. That is why we will probably prevail in court on this. But it is-the rights of the majority are important, but minority rights are also important. This kind of debate is an ancient as the country Mr. YOUNG. I understand that, and I agree with the need to protect the right of the minority, believe me. I have been a Republican in public office for 20 years, and I can guarantee that my rights have been abridged many times. However, notwithstanding that, it is my concern that if the security of the country is not protected completely, then the other constitu- tional rights that I enjoy today could be denied in the future, if that 5 percent minority has its way in exposing activities that are vital to the security of my Nation. Mr. BERMAN. You see, what we can't get into as members of the ACLU on a position-by-position basis is what do we think is in the national security interest of the United States. I mean, that is not being debated here. But what I sense from the Mr. YOUNG. No, but I Mr. BERMAN. What I sense from your remarks is that Mr. YOUNG. But I am one of the people who is a U.S. citizen, and I am claiming my right to be protected as you are claiming the rights for people like Agee to be protected. Mr. BERMAN. I know, but there are many different opinions about what is national security today, and it is important that those be debated. There is no unanimity among the 95 percent of the public or anyone else that we are clear about what our role in the Middle East, or whether we should have covert operations or whether it was good to overthrow the Shah of Iran or whether it is wise to start up covert operations in Pakistan, or continue them. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 When we talk about intelligence activities, we are talking about national security policy being developed covertly. We are trying to set up mechanisms to try to make those policies compatible with democratic institutions, including the existence of this committee. But we can't simply count on two committees of the Congress to make national security and intelligence policy for us. We also want to debate those issues in public. Mr. BoLAND. OR the top of your head, let me ask you whether or not you support the Wright-Bentsen bill in preference to the com- mittee bill? Mr. HALPERIN. I think we would have a very strong preference to that bill, and I think with some very small changes, we would not have any objection to moving forward with that bill. Mr. BOLAND. OK, thank you very much. Mr. GOLDMAN. Your proposal in your statement is that a law such as this should only prohibit disclosure where the activities involved are legitimate. From a practical standpoint, would the Government be in a position to go to court and show that the activities that the agent was involved in were legitimate? Wouldn't that pose the graymail problem or the problem of disclosing more secrets and doing more harm than any of the good that might be done from prosecution? In other words, what practically would be the effect of enacting what you are suggesting if the prosecutions could not be brought? Mr. IIALPERIN. I think it would probably depend on whether we had moved forward first with the graymail legislation, which I hope that we would do. We took the idea, I must say, from the bill introduced by Chairman Boland in the last Congress, and by the Senate Intelli- gence Committee as well. I think the obligation would not be difficult in the sense that the Government would simply have to prove that the intelligence operator was engaged in lawful activity. Mr. MAZZOLL The gentleman's time has expired. We thank you very much and appreciate your attendance today. Mr. HALPERIN. Thank you, Mr. Chairman. Mr. MAZZOLI. Our next witness, please, Mr. Ford Rowan. Mr. Rowan, you are welcome to join us at the witness table. Mr. Rowan is now a visiting associate professor of journalism at Northwestern University; however, he was until recently a corre- spondent for NBC television news. And during his 6 years with NBC, Mr. Rowan has reported, among other things, on the Watergate inves- tigation, as well as investigations into the CIA and the FBI. His last assignment was as NBC's Pentagon reporter. Mr. Rowan, on behalf of the committee we welcome you and we appreciate your insightful comments on matters which are very vexing and complex, but which certainly affect an out-in-the-field kind of journalist as you formerly were. STATEMENT OF FORD ROWAN, VISITING ASSOCIATE PROFESSOR OF JOURNALISM, NORTHWESTERN UNIVERSITY AND FORMER CORRESPONDENT FOR NBC TELEVISION NEWS Mr. ROWAN. It is a pleasure to be here today at your invitation. It is a unique experience for me, and I understand from committee staff that it is somewhat unique for the committee to hear from a Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 reporter, perhaps because there are two main reasons for the reluc- tance of reporters to testify before congressional connnittees. Most are prohibited by the policy of their employers who fear that re- porters will become advocates in controversial debates; and the second reason is that many reporters themselves are fearful that they will be questioned about their confidential sources. I solved the first problem by resigning from NBC news. As to the second one, I am . glad the committee staff assured me that you weren't interested in finding out my confidential sources. Mr. BOLAND. Not yet. Mr. ROWAN. I want to protect my sources, and therefore I can understand how the CIA wants to protect its sources, and I really sympathize with that view. In my book I withheld the identities of a dozen CIA officers. In my prepared statement I discuss how most reporters confront national security issues and decide whether to publish or broadcast sensitive information. Unless there is someone who wants me to read all of that, I would rather that the statement simply be put into the record so I can get to the heart of this issue and read only the last part. Mr. Mazzoni. Without objection, your statement will be made a part of the record. Mr. BOLAND. Well, you are denying our guests here an excellent statement. Mr. ROWAN. I am going to start on page 8. I don't think there are very many of us who want to see an intel- ligence operative's life endangered by having his cover blown, or see an ongoing covert operation derailed, or see future sources of in- formation dry up for fear of exposure. At the committee's invitation, I have examined the proposed legislation to make it a crime to reveal the identity of a clandestine American intelligence officer or his agent. I have tried my best to avoid letting where I sit, in the press gal- lery, determine where I stand on this issue. But as a journalist, I cannot consider the legislation without becoming very concerned about preserving first amendment rights. I am also a lawyer, but I will leave the legal evaluation of the legislation to more expert witnesses. The proposed criminal penalties are directed against two categories of individuals : No. 1, anyone with authorized access to classified infor- mation who discloses the name of an intelligence operative ; and No. 2, anyone else who might find out and then disclose the identity of a clandestine officer or agent with the intent of harming the foreign in- telligence activities of the United States. No. 1, as to the first category, I think Congress is clearly within its power to legislate these penalties. Congress can tell Government em- ployees they cannot divulge classified information. My only problem with this is simple : I don't think it will work. Some people will leak information no matter what the rules and no matter what the penalties. An insider who feels strongly enough about the wrongful nature of a clandestine operation to disclose it probably will base his decision on whether to also name names for reasons that are unrelated to potential criminal penalties. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 No. 2, as for the second category of potential offender in the legisla- tion, section 501 (b), the category which would include the press, my objections are much more strenuous. First, unlike CIA or military intelligence officers, reporters have taken no oath to keep secrets. And second, reporters should not be forced by Congress, in effect, to take a secrecy oath. And that's what this bill would do. Yet reporters would violate their responsibility as disseminators of information if they were forced into keeping secrets rather than permitted to evaluate whether what they have learned should be published. We have to face this fact: Most reporters just do not usually come across this type of information, and few pursue it, and very few want to name names at all. We can imagine a worst case, where a reporter is a traitor. But let's look at an example where disclosure of names might be in the public interest. Look back at the uproar over alleged assassi- nation plots against foreign leaders a few years ago. When it became known that the CIA had engaged in such plots, there was disagree- ment between public officials over whether such activities were ordered from the White House or whether the Agency was acting like a rogue elephant out of control. The public had an important stake in finding the answer to that question. Official investigators in the Senate recog- nized the importance of identifying the intelligence officers involved, and many names were made public. Some might argue that certain disclosures could be made by the press under this legislation provided the reporter was not intending to im- pair or impede the foreign intelligence activities of the United States. While inclusion of this intent provision is an improvement over other proposals on the subject, it would not solve the dilemma posed by the example above. Reporters who named names to get at the truth about the assassination plots usually were opposed to such plots and wanted to assure they did not recur. People who revealed such plots and the plotters wanted to impair this form of intelligence activity, yet they hoped in most cases that the United States would be helped, it would help it regain the respect it had lost in the world. Disclosure of assassination plots and drug experiments and spying on law-abiding American citizens has helped our Nation's interest in preserving liberty. In sum, it is a mistake to decree that all foreign intelligence activi- ties of the United States equally merit secrecy. Some should be exposed, some should be denounced, and some should be dismembered. Congress should not pass legislation which interferes with the first amendment right to expose illegal, unethical or immoral conduct. I recognize that there are some individua{s outside the mainstream of responsible journalism today who wish to harm this country. I fear that they could avoid the penalties in this bill by carefully sidestepping the intent provision. They would have to be less blatant in their anti- Americanism, of course, but they could claim that all these names were being made public to strengthen American intelligence activities by getting rid of covert types and perhaps freeing the Agency to do more analysis, for example. Now, while such arguments from some critics would not be very persuasive, they could operate to reduce the chances of successful criminal prosecution. Now, if that seems farfetched to some of you who have read Philip Agee's disclosures, let me remind you that as far as I Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 know, he has never used the label "defector" to describe himself. My hunch is that this bill is directed against Agee and his type. Insofar as he falls into the first category as one who has received information through authorized access, he would be subject to criminal penalty. However, for information received after he left the Agency, I believe he would be treated as anyone else in the second category. For a prosecu- tion to be successful, intent would have to be proven. My feeling is that a skillful propagandist would be able to disguise his true intentions, at least enough to discourage the Justice Department from acting against him. In short, the bill contains loopholes for traitors but could ensnare patriotic individuals who criticize certain intelligence activities. I do not think that the inclusion in 501(b) of this second category of individuals who would be subject to criminal penalties for divulging the names of intelligence operatives will do very much to prevent such disclosures. I am glad to see that the committee bill does not contain injunctive powers to halt publication or broadcast, but it could be ' argued that the criminal sanctions themselves have a chilling effect for anyone contemplating disclosure. My feeling, however, is that neither injunctions nor criminal penalties will provide much control over the flow of information. I have never been chilled by anything. Look how unsuccessful the Federal Government was when it tried to enjoin publication of the Progressive magazine article on how to build an H bomb. If you can't stop disclosure of atomic secrets, I doubt if the Government can stop disclosure of the names of some of its spies. Spill- ing H bomb secrets just seems to be much more threatening to national survival. The H bomb article was based in part on unclassified information available in Government libraries open to the public. That factor in that episode could have relevance to our discussion today, for this bill would punish a reporter who combed through open sources, such as bio- graphical registers, to identify covert officers and agents. The Govern- ment extracts a high price from journalists when it seeks to punish them for revealing what the Government itself was too inept to keep secret. It is well known that for years it was possible to identify CIA per- sonnel on embassy staff by checking State Department registers. The Federal Government made it easier for outsiders to figure out the identities of CIA operatives. So before you try to punish the outsiders, I think you could tighten secrecy and use more care in choosing those who will keep the secrets. This is the path I would recommend for you : strengthening the inter- nal governmental processes for intelligence agencies while avoiding new prohibitions which unconstitutionally interfere with freedom of the press. Democracy works best that. knows most. Some conflicts between the press and Government agencies are healthy, symptomatic of a dynamic society with competing values. An independent press with watchdog functions, the tradition of open criticism. the disclosure of corruption, the reform of institutions, all these contribute to a vibrant society. Society, the public, pays a price when Government attemps to seal off part of its activities from public view. In some cases, the courts Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 have sided with due process and privacy rights in limiting access to information by the media. In other cases, the courts have evaluated then decided against claims that publication of certain information would harm national security. While first amendment guarantees may not be absolute, they should be tampered with only very cautiously. I am sorry to decide this, be- cause I know this committee has made a responsible effort to try to write legislation that deals with a difficult problem, but my only con- clusion in this matter must be that the legislation is unnecessary, unworkable, unconstitutional. [The prepared statement of Mr. Ford Rowan follows:] TESTIMONY OF FORD ROWAN Mr. Chairman, I sympathize with your desire to shield American intelligence officers and agents from publicity which could endanger their lives. However, I have serious reservations about whether this proposed legislation would prove to be effective. Moreover, parts of the proposal seem to he unconstitutional. I would like to begin with a story that was told to me by one of the people this bill seeks to protect. This man fought for his country as a pilot, obtained a doctorate, and served as an intelligence officer. He is a perfect combination of soldier, scholar, and spy. I will never forget one encounter with this man during the period when two congressional committees were investigating alleged assassi- nation plots directed against foreign leaders. "Let me tell you the story about the dead man who went seeking a decent burial," my CIA source said. It was a simple story about a fellow who tried to arrange for his own burial because he claimed, "I've been dead for 2 weeks." A priest and then a doctor were called in, but both failed to shake the poor fellow's conviction that he had already died. Finally, the CIA man recounted, the doctor turned in desperation to logic. "My man, isn't it true that a corpse that's been dead for 2 weeks cannot bleed?" the doctor asked. When the fellow agreed the doctor took a little knife and nicked the fellow's hand and, of course, it bled. "See," the doctor said, "You're bleeding." "Well what do you know," the fellow answered, "corpses do bleed." My CIA source told that story to point out that different people can look at the same facts and reach very different conclusions. Everyone processes information through his own frame of reference, his own mind set, his world view. ]'acts which do not fit preconceived notions or rub against deeply held attitudes often are rejected or cause conflict in the eye of the beholder. This CIA officer mentioned two examples. The civil rights demonstrations contradicted the bigoted view of many whites. The pictures of American soldiers burning civilians' homes in Vietnam did not match our view of ourselves as honorable victors. Turmoil resulted in both these cases when new realities con- fronted old attitudes. I have always tried to keep in mind how important perceptions can be when news is communicated. Let's say that the House Intelligence Committee releases a report that outlines some analytical failures by the CIA. Aside from the writ- ten report, my story would be based on comments by committee members, staff, CIA officials, and intelligence neonsumers at the White House. Each would speak from his own perspective. When I would write my story my own attitudes would assert themselves no matter how hard I tried to be objective. Then my editors and producers would get a whack at the story. Finally, when the listeners heard the story each would interpret it from his own perspective-that means millions of perspectives. So is it any wonder that many people may have very different impressions after listening to that story-far different from those intended by the committee members when they voted on the report? In a pluralist democracy uniformity of thought is no virtue. But agreement about the facts encourages wiser public understanding of events, wiser choices between competing goals. Put another way, clarity in the description of a prob- lem permits advocates of varying approaches to work out better solutions. Or, as a former Director of Central Intelligence, James Schlesinger, is quoted as saying, "Everyone is entitled to his own opinion, but not to his own facts." Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Forgive me if I spend less time giving you my opinions about this legislation and dwell on some facts about news reporting. I believe that most public offi- cials have only a partial understanding of journalism, despite the fact that most of you deal regularly with journalists. Perhaps I can help broaden your perspective. I appreciate the invitation to testify. For 11 years I have covered congres- sional hearings as a reporter, but this is the first time I have been on this side of the witness table. I am currently a visiting associate professor of journalism at Northwestern University. Prior to accepting this position several weeks ago, I served as NBC's Pentagon correspondent. I resigned from NBC news in a dispute over editorial policy ; I felt NBC was irresponsible in providing an unedited prime time propa- ganda platform to terrorists when the network agreed to air an interview with one of the hostages in Iran. Episodes of terrorism require self-restraint by journalists. The subject matter of interest to this committee today also demands that journalists exercise re- straint so that lives are not jeopardized needlessly. I first became involved in covering the CIA and other intelligence agencies in 1974 for NBC News, and most of my time until early 1978 was devoted to this subject. In 1978 my book about surveillance and privacy, "Technospies," was published by Putnam's. During the course of the investigations of these agencies I learned both the best and the worst about people who serve their country in the intelligence com- munity. Most of them are honest, intelligent, patriotic. Some, however, fit this description : ". . . men of zeal, well-meaning, but without understanding." That quote is from Justice Brandeis who warned that "the greatest dangers to liberty lurk in the insidious encroachment of men of zeal, well-meaning, but without understanding." The disclosures of recent years, although widely condemned by some as under- mining the effectiveness of the CIA, may actually have helped intelligence officers regain an understanding of their duty within the constitutional framework. Publication of the investigative findings may have contributed to a healthier intelligence community by refocusing its attention on its proper role and de- emphasizing the undue stress on covert operations, some of which were directed against law-abiding American citizens. It was a challenge to cover the probes of the CIA, FBI, NSA, IRS, and military intelligence units. In the race to dig up the dirt about drug experiments, assassi- nation plots, and domestic spying, there was always the danger that reporters, too, would become zealots who meant well but lacked the necessary understand- ing to fit the stories into a broader perspective. I say this to try to convey what some public officials may doubt, that re- porters believe in many of the same values as you. The first amendment confers enormous power upon journalists and most of us feel that the responsibilities are also enormous. Most of us are patriots, but the day is past when simply waving a flag will convince a reporter or editor to kill a story without excep- tionally compelling reasons. Too many reporters have seen the phrase "national security" used to try to hide embarrassing and illegal conduct by government agencies. In covering intelligence activities a reporter had to exercise judgment when deciding which way to direct his investigatory efforts, in deciding which facts to stress or omit, when deciding which activities should be disclosed. For ex- ample, when I broadcast the first story about computerized electronic surveil- lance by the National Security Agency in 1975 I felt that the domestic spying, directed by an agency involved in foreign intelligence gathering against Ameri- can citizens, was so newsworthy that disclosure outweighed any arguments about sensitive sources and methods being compromised. I cite this example because it was a hard case and one that could still spark disagreement today. I realize that intelligence officers and many public officials feel very uncom- fortable knowing that journalists-unelected and sometimes unwashed-sit in judgment on their conduct. Aside from reminding you that this is a result of the first amendment, I would like to stress that most American journalists try to make responsible judgments. Most try to balance competing values. Most do not favor disclosure for disclosure's sake. Few want to damage their nation's true security interests. Of course, others fall back on the old idea of letting the chips fall where they may. And some just don't give a damn. Perhaps a few hate this country. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 But I know enough reporters to feel secure in testifying that most do not want good news stories to produce bad results. I can understand how this committee would want to legislate a halt to some bad results. Few of us want to see an intelligence operative's life endangered by having his cover blown, or to see an ongoing covert operation derailed, or to see future sources of information dry up for fear of exposure. At the committee's invitation I have examined the proposed legislation to make it a crime to reveal the identity of a clandestine American intelligence officer or his agent. I have tried my best to avoid letting where I sit (in the press gallery) deter- mine where I stand on this issue. But as a journalist I cannot consider this legislation without becoming concerned about preserving first amendment rights. (Although I am also a lawyer, I will leave the legal evaluation of this legislation to more expert witnesses.) The proposed criminal penalties are directed against two categories of individ- uals: (1) anyone with authorized access to classified information who discloses the name of an intelligence operative and, (2) anyone else who might find out then disclose the identity of a clandestine officer or agent with the intent of harming the foreign intelligence activities of the United States. (1) As for the first category, I think Congress is within its power to legislate these penalties. Congress can tell government employees they cannot divulge classified information. My problem with this is simple : I do not think it will work. Some people will leak information no matter what the rules, no matter what the penalties. An insider who feels strongly enough about the wrongful nature of a clandestine operation to disclose it probably will make his decision on whether to also name names for reasons unrelated to potential criminal penalties. (2) As for the second category of potential offender under the legislation, the category which would include the press, my objections are much more strenuous. First, unlike CIA or military intelligence officers, reporters have taken no oath to keep secrets. Second, reporters should not be forced by Congress to-in effect- take a secrecy oath. That's what this bill would do. Yet reporters violate their responsibility as disseminators of information when they are forced into keeping secrets rather than permitted to evaluate whether what they have learned should be published. Let's face it : most reporters just do not come across this type of information. few pursue it, and very few want to name names at all. We can imagine a worst case, where the reporter is a traitor. But let's look at an example where disclosure of names might be in the public interest. Remember the uproar over alleged assassination plots against foreign leaders a few years ago. When it became known that the CIA had engaged in such plots there was disagreement between public officials over whether such activities were ordered from the White House or whether the agency was acting as a rogue elephant out of control. The public had an important stake in finding the answer to that question. Official investiga- tors recognized the importance of identifying the intelligence officers involved and many names were made public. Some might argue that certain disclosures could be made by the press under this legislation provided the reporter was not intending to impair or impede the foreign intelligence activities of the United States. While inclusion of the intent provision is an improvement over other proposals on this subject, it would not solve the dilemma posed by the example listed above. Reporters who named names to get at the truth about the assassination plots usually were opposed to such plots and wanted to assure they did not recur. People who revealed such plots and the plotters wanted to impair this form of intelligence activity, yet they hoped-in most cases-that this would help the United States regain some of the respect it had lost in the world. In sum, it is a mistake to decree that all foreign intelligence activities of the United States equally merit secrecy. Some should be exposed, denounced, dis- membered. Congress should not pass legislation which interferes with the first amendment right to expose illegal, immoral, and unethical conduct. I recognize that there are some individuals outside the mainstream of respon- sible journalism today, who wish to harm this country. I believe they could avoid the penalties in this bill by carefully sidestepping the intent provision. They would have to be less blatant in their anti-americanism. of course, but they could claim that the names were being made public to strengthen American intelligence activities by getting rid of covert types and freeing the agency to do more Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 analysis, for example. While such arguments from some critics would not be very persuasive, they could operate to reduce the chance of successful prosecution. If this seems farfetched to some of you who have read Philip Agee's disclosures, let me remind you that as far as I know he has never used the label "defector" to describe himself. My hunch is that this bill is directed against Agee and his type. Insofar as he falls into the first category, as one who has received information through authorized access, he would be subject to criminal penalty. However, for information received after he left the agency, he would be treated as anyone else in the second category. For a prosecution to be successful, intent would have to be proven. My feeling is that a skillful propagandist would be able to disguise his true intentions, at least enough to discourage the Justice Department from acting against him. In short, the bill contains loopholes for traitors but could ensnare patriotic individuals who criticize certain intelligence activities. I do not think that the inclusion of this second category of individuals who would be subject to criminal penalties for divulging the names of intelligence operatives will do very much to prevent such disclosures. While I am glad to see that the committee bill does not contain injunctive powers to halt publication or broadcast, it could be argued that the criminal sanctions themselves would have a chilling effect for anyone contemplating disclosure. My feeling, however, is that neither injunctions nor criminal penalties provide much control over the flow of information. Look how unsuccessful the federal government was when it tried to enjoin publication of the Progressive magazine article on how to build an H bomb. If you cannot stop disclosure of atomic secrets I doubt if the government could stop disclosure of the names of some of its spies. Spilling H bomb secrets seems much more threatening to national survival. The H bomb article was based in part on unclassified information available in government libraries open to the public. That factor in that episode could have relevance to our discussion today, for this bill would punish a reporter who combed through open sources such as biographical registers to identify covert officers and agents. The government extracts a high price from journalists when it seeks to punish them for revealing what the government itself was too inept to keep secret. It is well known that for years it was possible to identify CIA personnel on embassy staffs by checking State Department registers to see if they were listed as FSR's, foreign service reserve officers, or regular foreign service officers, FSO's. Such techniques were not foolproof (my wife worked as an FSR in the State Department and she was not involved with intelligence.) But the Federal Government acted to make it easier for outsiders to figure out the identities of CIA operatives. So before you try to punish the outsiders I think you could tighten secrecy and use more care in choosing those who will know the secrets. That is the path I would recommend for you : strengthening the internal gov- ernment process for these intelligence agencies while avoiding new prohibitions which unconstitutionally interfere with freedom of the press. Democracy works best that knows most. Some conflicts between the press and the government are healthy-symptomatic of a dynamic society with com- peting values. An independent press with watchdog functions, the tradition of open criticism, the disclosure of corruption, the reform of institutions-these all contribute to a vibrant society. Society-the public-pays a price when government attempts to seal off part of its activities from public view. In some cases the courts have sided with due process and privacy rights in limiting access to information by the media. In other cases the courts have evaluated then decided against claims that publica- tion of certain information would harm national security. While first amendment guarantees may not be absolute, they should be tam- pered with very cautiously. This proposed legislation is unnecessary, unworkable, and unconstitutional. Mr. MAZZOLI. I thank the gentleman for his statement. Do you mean that the entirety of the legislation or that part dealing with the unauthorized disclosure by members of the press is unconstitutional? Mr. ROWAN. Well, my comments as to the unconstitutionality go to the disclosures about the press. Mr. MAZZOLI. The first section about Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. ROWAN. But the first section about Government employees really doesn't bother me. It is just that I am not sure it would work. Mr. MAZZOLr. I understand. But the unconstitutionality charge is Mr. Rowe. Is to 501 (b). Mr. MAzzoLr. Well, certainly, I am sure that you must be very good for the young journalism students learning their tools because you bring a wealth of information and a very sensitive view. Mr. RowA\. Thank you. Mr. MAZZOLr. I would ask you this, Mr. Rowan, and I thought your formulation very interesting on page 11 in which you suggested that reporters who name names are really trying to change the foreign policy by getting rid of some corrupt or unnecessary aspect of it, and therefore they could plead that as a defense. May I ask you, though, could not this impairment, assuming for the purpose of argument that it is an impairment in the public interest, could not this impairment of foreign policy, foreign intelligence activities take place without naming names if the person were devoted to that cause? Could it not be done without naming names? Mr. ROWAN. Well, in a lot of cases it is done without naming names, but that doesn't mean that in every case it can be done without naming names. I believe that the debate over the assassination plots required that names be known so that people could find out who was account- able. Now, just to say that the Senate Committee could try to trace accountability and then issue a report, perhaps scaled down, with all the names deleted, I think would have left the public questioning a lot more than they did anyway. Let's take the case of the drug experiments. Assuming that they would fall under this legislation and some had been conducted over- seas-and incidentally, there were operational aspects of the drug experiments, it wasn't simply research-all those operational aspects have not come out publicly. But assuming a reporter found out about them, publication of names might be the only way that the issue could be clearly discussed. For example, how could you discuss the death of two people, one in an Army program and one in the CIA program, without naming them? I would have trouble there. So in most cases, no names. But since there are some cases when I think you have to have names, all of a sudden that 501(b) becomes a very damaging prospect for the first amendment. Mr. MAZZOLr. Earlier this morning, perhaps before you were here, my colleague from Georgia, Mr. Fowler, said that this is a question of balance. The nrohlem facing this committee is balancing. The gentleman from Florida, Mr. Young, talks about balancing the rights of the minority and the majority, and I think here probably the difference that separates us somewhat here in good faith is the fact that the balance that I see is in favor of limiting the use of names unless there is an absolutely overwhelming and im- possible task to be performed that needs the actual name, and I again with respect think that you could have written some very excellent and revealing drug stories without naming the two who died. They will be named to the officials of the Govern- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 ment; payments will be made to the families; people will be sacked and their heads will roll who took part in those things. But again, I just, with respect, would say that most of those stories, if not all of them, could have been pursued with the same zeal and with the same effect without necessarily going to the names. As a lawyer in addition to being a professional journalist, you do feel, however, that as to the first part, the section dealing with disclo- sures of information acquired by people who obtain the information is an official capacity could, with some attention, pass constitutional muster. Mr. ROWAN. I think it could. The only problem I would have with that section is whether the prohibition continues after a Government employee has left Government service and learns information that is from public sources and has no connection with what he found out when he was under oath. I don't know about that. Mr. MAZZOLI. Well, you bring up a very good point, and I asked an- other witness earlier about whether he gave credence to the CIA position, which is that a former agent or a former employee does develop techniques and certain capabilities for ferreting out this in- formation later which the average citizen doesn't, and therefore there should be a sizeable proscription on them throughout their life. Mr. ROWAN. Well, I should hope that the CIA operative would be able to ferret out information better than an average citizen or they wasted heir time training him. Mr. MAZZOLI. Well, I mean I think the point was not so much whether or not they gained it, but having gained these talents, it is incumbent on them not to use them in ways which will perhaps lead to the divulgence of names which could lead to the death or to the lack of security for some of their former colleagues. Mr. ROWAN. Well, I think there is no doubt about it, once you bite on the apple of knowledge, you can't unlearn it, and I mean, if they learn tradecraft secrets and the way to go about finding information, cer- tainly they are more skilled than most people. But that doesn't mean they are more skilled than all people. Mr. MAZZOLI. But if the committee were to decide, then, to put a greater burden on them to be careful in the use of that kind of knowl- edge where the use of it might lead to the harm to some American citi- zen, particularly an undercover agent, the committee probably would be on somewhat more solid ground? Mr. ROWAN. Well, my feeling is that you can go ahead and try to legislate a continuing secrecy oath that covers a man from the day he takes it until the day he dies. You can try, but the courts will resolve that. And since my expertise is not along those legal lines but rather along how it would apply to the press, I would defer to your judgment and later to the courts, if that happens. Mr. MAZZOLI. The Chair's time has expired. I thank you very much. The gentleman from Massachusetts. Mr. BOLAND. Mr. Rowan, I want to compliment you on a very forth- right and very spirited statement. How do you handle something like the Covert Action Information Bulletin, particularly that section, naming names. As we know, they do it all the time, whenever they get them, they name names in their publication. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 How do you handle that problem, or should we address ourselves to that problem at all? Mr. ROWAN. Well, I know you will not like this answer, but I don't think you can handle that problem. I have talked about how Mr. BOLAND. We can't handle the problem without some legisla- tion, I don't think. Mr. ROWAN. And I don't think even successfully with legislation. Now, I have spoken mostly about the mainstream journalism, re- sponsible journalists, journalists who weigh and actually balance competing values when they decide whether to name names or print something, or publish something. But the first amendment wasn't just designed for mainstream journalists. In fact, it wasn't designed for institutions at all, although over time it has come to cover in- stitutions. The first amendment was designed for Tom Paine, who printed up pamphlets. And so, if the Covert Action Bulletin is mimeographed off in somebody's basement, it has the same protections. I mean, you could make the argument that this is what the Con- stitution was designed to protect: an individual or small group printing up stuff. And I think you are stuck with it. I don't think you can legislate what they can and cannot print. Mr. BOLAND. Well, I think this proposal does meet that. There is a difference of opinion anyhow, but let me ask you, I presume that during your some years as a reporter, did you ever have knowledge of the identities of undercover CIA officers overseas? Mr. ROWAN. Most of my attention was directed at the domestic spy- ing investigations, but I think I would have to say yes to that question because I did know some who had worked overseas, yes. I didn't direct most of my attention to what was happening over- seas. For example, on Chile, I didn't cover the activities that happened in Chile, although later on came to know some of the people that had been involved, yes. Mr. BOLAND. What about some of your colleagues that were work- ing overseas. I presume that they had knowledge of the identities of undercover CIA officers overseas, couldn't help but have, I presume. Do you have any indication of how, without revealing the sources, how that information might have been obtained by any of your col- leagues, or even by you if you have it? Mr. ROWAN. Yes. Well, when you are in a foreign country it is usually not very hard to figure out who the CIA station chief is. It is usually well known in the journalistic community. The previous witness, I think it was Mr. Halperin, discussed how there are different levels of cover, and for anybody who is identified as a U.S. Government employee, it is certainly lighter cover than for someone who is an employee of a business and is not listed as a Gov- ernment. employee. But it was generally well known among reporters. Whenever I traveled they would know who some of the CIA guys were, and very often had contacts with them because they in effect were trading information. You want to find out what this guy knows, and sometimes you would share it with him. In fact, there is a big fuss about whether the CIA has used reporters as sources of informa- tion. Well, I am opposed to the cultivating of journalists as agents, hut, in terms of the interaction of reporters and Government em- ployees, both State Department, CIA, and military, there is always Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 some sharing of information. It is usually not a form of being co-opted. It, is just a form of keeping your lines of communication open. But I mean yes, the answer is yes. We knew who some were. Mr. BOL_1\D. Thank you very much. Mr. MAZZOLI. I thank the gentleman. His time has expired. The gentleman from Illinois, Mr. McClory. Mr. MCCLORY. Well, as a journalist, if you have some secret information that you thought was of extreme importance to the security of the United States, you would not hesiate. would you, im- parting that confidentially to the CIA or other intelligence agency. or do you think that there is some restraint because you are a journalist? Mr. ROWAN I would have to see an example. It depends, I mean, on a scale of 1 to 10, if I found out something that would harm the coun- try a little bit, I probably wouldn't feel compelled to tell all. If I found out that the Russians were-let's take an extreme example that is very unlikely. If I found out the Soviets were planning a sneak attack, I think I would tell my Government. That is about the worst case I can think of. But in between there, reporters are worried about becoming co-opted by the officials they have to cover so, we don't immediately run out and volunteer every bit of information we get, but if I found out my country was about to be attacked, I don't think I would keel) it secret. Mr. MCCLORY. You are worried about imparting information that might be beneficial to the protection of your country? Mr. ROWAN. No; not so much worried about imparting the in- formation as worried about the consequences of becoming, in effect. a Government agent. And I am sure you remember nuite well how the Tntelligence Committee went through this whole bit. I know you do. Mr. Dic CLOaY. I served on the Pike Committee and on this commit- tee, and the thing that appalls me is that there has been so much emphasis on the part of the so-called responsible, journalists with regard to-you make reference today to the assassination plots-and so little attention paid to the tremendous contributions made during this entire period. To think that we were at peace between 1945 and 1965 with just a smattering of information related as far as the tre- mendous contributions of all of our intelligence agencies, to maintain the peace, to save American lives, really to maintain peace throughout the world. It strikes me that the attacks on the CIA have been so terribly exaggerated that, we are now experiencing a deficiency in intelligence that is impairing, threatening our very survival. Tell me this, do you give any credibility to the sentiments of one of the nation's great liberals, Senator Pat Moynihan, that, perhaps we should be directing more attention now to protecting ourselves against the secret activities of the KGB and other foreign intelligence agencies, and perhaps providing the kind of support that the intelligence agen- cies say they need in order to strengthen our intelligence capability? Mr. ROWAN. Congressman McClorv, as Senator Moynihan has said. there, is a great deal of activity by intelligence agents of hostile or potentially hostile powers. and I have always been concerned about it. T have done stories on it. It is a lot more difficult to find out informa- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 tion about hostile intelligence agents. But when we found it out, we broadcast it. But I agree with the sentiment that it is good to disclose what the other side is doing. I agree with that. Mr. MCCLORY. Well, we do have serious restraints which are imposed on our own intelligence agencies. NOW, tell me this. Do you feel that journalists are entitled to some, preferential treatment as far as citizens are concerned? Is there a special privilege that journalists should have that other citizens of the Nation don't have? Mr. ROWAN. No. Journalists are the public. We have no rights greater than the public, and I believe the public should have a lot of rights. Mr. MOCLORY. Well, in substance, though, you don't want any legis- lation, and you really don't see any problem that we should bdealing with legislatively. Mr. ROWAN. Well, there may be a problem. I just don't know that this is the solution, and as I say, my basic concerns go to 501(b). Mr. MGCLORY. OK. I yield back my time. Thank you. Mr. MAZZOLr. The gentleman's time has expired. The gentleman from Florida, Mr. Young, is recognized for 5 minutes. Mr. YOUNG. Mr. Chairman, thank you very much. Mr. Rowan, your argument is very persuasive, let me first say that. You have been in parts of the world where a state of war existed. Mr. ROWAN. Yes. Mr. YOUNG. And you know that such a lifestyle is entirely different than it is sitting here in this committee room today. Mr. ROWAN. It sure is. Mr. YOUNG. People are scared to death, they don't know who to trust, they don't know what is going to happen next. If that state actually existed here in the United States, in Washington, D.C. right this moment, would your comments be any different than they were today? Mr. ROWAN. I would hope not. I would hope that my point of view is sufficiently mature so it wouldn't blow in the wind. Mr. YOUNG. But it could, couldn't it? Mr. ROWAN. No one is infallible. Mr. YOUNG. I just wondered if you would think that from the standpoint of intelligence, in view of the revelations of how active the KGB and the GRU are in the United States, if you wouldn't consider that maybe a minor state of war does exist at the intelligence level at this point between our intelligence community and the Soviet intel- ligence community. Mr. ROWAN. Congressman, I don't have any trouble with your going after KGB and GRIT agents. If you can write legislation that would put them all in jail, I would be happy. Mr. YOUNG. I understand that, and I Mr. RowAN. That is not what this legislation does. Mr. YOUNG. I appreciate that, but that is what we are trying to do. We are trying to make sure that someone doesn't make it easier for the Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 KGB to do their job to do us in. That is what we are really trying to do. As I say, I appreciate your comments, and they are very persuasive, and believe me, this is one member that is going to take them into serious account when we start to mark up this bill. By the same token, I have got to be concerned about the security of more than 200 million people that live here in the United States and protect them from the onslaught of intelligence activities being directed against this Nation of ours by the Soviet Union, and many others, right here in our own country. We are even helping to pay for some of it, be] ieve it or not, at the United Nations. The problem that we always talk about is the first amendment. There is more than one amendment in the Constitution. The 14th amend-. ment is also there that guarantees the right of equal protection under the Constitution, and I am concerned that if we get too narrow in our definition of one particular part of that Constitution, we may jeop- ardize the entire Constitution. If that happens, we are in trouble. President Carter has said in his state of the Union message that the free world was faced with a more serious threat today than we have seen since World War II. If that is the case, then the security of this Nation and every other free nation is in jeopardy, and when security is in jeopardy, that means that the answer hasn't been determined yet who is going to come out ahead. And if one minor mistake on the part of someone who believes that they are doing good for the public by revealing names or activities causes the downfall of the very constitu- tional system we are talking about, to me that has got to be taken into consideration as well. Mr. RowAN. Congressman, leaving aside the first amendment ques- tions and any questions of constitutionality, I have read enough his- tory to know that in times of warfare, political liberties can shrink. I just hope that this committee doesn't contribute to that. If it can fashion legislation that avoids that, do it. But try to avoid chipping away at the first amendment. That was my argument. I don't think 501(b) is constitutional. I don't think it is a good idea. I think people have the right to speak out and to publish, and I know that at times that rubs up against other values, including, perhaps, the question of the survival of intelligence operatives. But I come back to the point that while I may not be an absolutist about the first amendment, it was listed first when the framers decided to amend the Constitution, and it does provide all kinds of political safeguards. "Congress shall not," that is what it says, and I hope that this committee will remember that. And I recognize the committee has taken a responsible approach to this. I just don't think what you fashioned makes it. Mr. YOUNG. Well, we appreciate your concern. We are going to try to save the Nation and the first amendment at the same time. Mr. MnzzoLI. The centleman's time has expired. May I thank you, Mr. Rowan, and we, appreciate it. Mr. Evans, if you would abide with us for a few seconds, we will vote and come back. We will take a recess for just a few minutes. Mr. BoLAxn. Thank you very much. Mr. Rowax. Thank you. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 [A brief recess was taken.] Mr. MAzzoLi. The subcommittee will come to order. It is our pleasure to recognize the last witness of the afternoon ses- sion, Mr. M. Stanton Evans, who is also a member of the fourth estate. He is also a columnist, has been a reporter, a commentator on CBS Radio, a former editor of the Indianapolis News, and at the time of his appointment, the youngest editor of a daily newspaper in the Nation. Mr. Evans, we are looking forward to hearing your views. STATEMENT OF M. STANTON EVANS, JOURNALIST AND COMMEN- TATOR, FORMER EDITOR, INDIANAPOLIS NEWS Mr. EvANS. Thank you, Mr. Chairman. I would point out that, that designation as youngest editor was many years ago. Mr. MAZZOLI. Well, I thought it was yesterday or the day before, for sure, because Mr. EvANS. Thank you. My statement is rather brief, so I think I will just read it, if that is all right. Mr. MAZZOLI. Fine. Mr. EVANS. Beginning with the substantive portions. I appreciate the invitation to appear before your committee today to offer testimony on H.R. 5615, the Intelligence Identities Protection Act. While I am hardly an expert on the complex matters under dis- cussion, I feel strongly that the principle embodied in this bill is sound, and that passage of legislation protecting our intelligence officers from exposure or harassment and possible death is urgently required. That a systematic campaign is underway to expose case officers of the Central Intelligence Agency, and to name others allegedly work- ing for the CIA, is well known to members of this committee. Also well known is the fact that there have been instances in which indi- viduals thus exposed have subsequently been murdered. It is my belief that this campaign of exposure and denunciation must be opposed to safeguard the intelligence officers in question, to protect individuals with whom they may be working in other coun- tries, and to defend the national security of the United States. I find no inconsistency between these objectives and traditional safeguards for freedom of the press. As I see it, the threshold question in this debate is : Whose side is one on? I mean this quite literally. The attack on our intelligence agencies and the attempt to expose their operatives is based on the premise that the intelligence services of the United States are enemies to be relent- lessly combatted. One need only sample some of the literature on this question to grasp the viewpoint of those engaged in this campaign. In one such publica- tion, for example, case officers of the CIA are referred to as "latent criminals" who are engaged in "atrocities" and who should be en- couraged to redeem themselves by returning "to the human race." I am quoting from the issue of counterspy for December 1978. No similar epithets are aimed at the Soviet KGB or the Cuban DGI, Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 nor are these Communist espionage and intelligence networks tar- geted for similar exposure. Such attitudes are understandable in the case of explicit enemies of the United States, such as East Germany, whence came the exposure of AID official Dan Mitrione, falsely identified as a CIA agent, and subsequently murdered by the Tupamaros who used the exposure as justification of their action. They are less comprehensible coming from people who profess devotion to the free institutions of the West in general, and of the United States in particular. To the degree that it is merely confused, the recent campaign against the CIA had its origin in the furor over reported excesses by the Agen- cy, at a time when we were being assured the cold war was over and done with. Recent events, I should think, have served to correct that mistaken perspective, and to demonstrate that we need to insure that our intelligence operatives can function effectively, and when possible, safely, overseas. The Soviet invasion of Afghanistan and other recent actions by the Communists have demonstrated all too clearly that the cold war is by no means over, that it is, if anything, intensifying, and that the principal enemy confronting the American people is the apparatus of international communism. By the same token, the crisis in Iran has demonstrated that our in- telligence agencies are, or should be, an essential component of our de- fenses. The point has effectively been made, indeed, by a report of this committee. Most observers are. now willing to concede, I think, that the crippling of our intelligence agencies severely limited our ability to monitor and forecast events in that troubled nation. In addition, the seizure of American hostages at our Embassy in Tehran and the charges lodged against them make it all too plain that our personnel abroad, particularly those allegedly connected with in- telligence, are targeted for hostile action by our adversaries. From all of which I think it fair to conclude that systematic efforts to secure and publicize the names of our intelligence operatives over- seas is fully comparable to publishing military information useful to the enemy. I therefore believe it is not only the right, but the impera- tive duty of the. Congress to impose sanctions against such disclosure. Concerning the particulars of the bill before us, I believe the dis- tinction drawn between those who have lawful access to classified in- formation and those without'such access is proper and constitutes a reasonable safeguard for the rights of the press. Likewise, the fact that the Government must prove intent to impede or impair foreign intelligence activities of the United States in the latter instance is a sensible precaution. From the standpoint of the press, also, the fact that the bill does not authorize prior restraint but imposes responsibility for willfully harmful disclosure following publication is an important and wel- come distinction. In this respect, I find H.R. 5615 preferable to H.R. 3762, which seeks to attain the same general objectives. On the other hand, as I read it, H.R. 3762 would also implicitly authorize protection for FBI operatives engaged in counterterrorism and counterintelligence activities, and I further understand that H.R. 6316, presented by Mr. Young, would explicitly authorize that type Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 of protection. I think that sort of protection is required. Since the hazards confronted by these officials are also quite real, they should have the same sort of protection against unauthorized disclosure as that afforded otherwise in H.R. 5615. And that concludes my prepared statement. Mr. MAZZOLI. Mr. Evans, thank you very much. I would make just one brief aside. I have spent many a happy day in your town of Indianapolis. It is a sister town to Louisville, and I was stationed in Indianapolis, and it is a lovely place. Let me refer to your statement, the last page of your statement, the third full paragraph : From all of which, I think it is fair to conclude that systematic efforts to secure and publicize the names of our intelligence operatives overseas is fully comparable to publishing military information useful to the enemy. And that that should be sanctioned. You were here when your colleague in the fourth estate, Mr. Rowan, was commenting on somewhat the same material. He would character- ize it: People who reveal such plots and the plotters wanted to impair this form of intelligence activity, yet they hoped in most cases that this would help the United States regain some of the respect it had lost in the world. In sum. it is a mistake to decree that all foreign intelligence activities of the United States equally merit secrecy. Some should be exposed, denounced, dismembered, because they are illegal, immoral, and unethical. I wonder, can these two positions be squared? You are both intel- ligent people, you both write, you both observe, you are both well trained, and yet it would appear that these are diametrically opposite positions, philosophically as well as practically as to these bills. Mr. Ev&xs. Well, let me just make a prefatory statement. I often find myself in an adversary relationship with the Government on matters of secrecy. In fact, I have pending a Freedom of Information suit in Federal court on a matter that I think should be disclosed. But I think that there are ways of going about forcing disclosure of information that one thinks ought to be disclosed. What I fear is the press setting itself up as the arbiter of what is or is not properly classified information, which is, in essence, I think, the situation we have here. The prevailing journalistic ethic, at least in certain cir- cles, seems to be the you are entitled to publish anything you can steal, and I think that is incorrect. I don't think we can have that, partic- ularly in a category that so vitally affects our national security and our defense as the catenorv that is before this committee. And I might say that in some of your questions to previous wit- nesses, it seems to me you summarized the situation very well, that is, you said in essence, and this is just a paraphase, that we are confront- ing a real world situation. We are not playing legalistic games here. This stuff is happening. Our agents are being identified, and in two cases we know of subsequent to the identification, one evidently true, the other evidently false, the individual was killed. This is not some- thing that has happened before a moot court. It is a real life, cold war situation. We are fighting a war for survival, and I think it is the responsibility of the Congress to attempt to grapple with that, and I think that your bill is a very responsible and carefully drawn effort to do that. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Now, a couple of other points that were made by the previous wit- nesses : for example, if-I am not a lawyer, so maybe I am not read- ing the bill correctly, but as I read it, you have in here a provision that in essence continues this for 5 years. That is, after 5 years, if the person is no longer an operative agent or case officer, whatever the case may be, then it sort of enters into the realm of historical infor- mation and your prohibitions would not apply. Am I correct? Mr. MAZZOLI. I believe ; yes. Mr. Eves. That would seem to answer Mr. Rowan's concern about what happened in the Trujillo assassination and all that, or at least some part of it, I would think. So I don't think that is a real objec- tion to your bill. I think you have addressed that very carefully. Also, Mr. Rowan and the ACLU witnesses both talked about this information as though it were simply public information that some- one could get just from general public sources. Now again, if I read your bill correctly, that is a defense; that, if in fact it is not classi- fied information that the person is dealing with, then there is no crimi- nal offense. And I hope-I have got here, as I am sure you gentlemen have, a copy of the Covert Action Information Bulletin in which it is very clearly indicated that they are not relying simply on public sources. They talk in one of their identifications in Italy about a case officer there in Rome, giving his name and other information, and the last sentence on the page-this is page 32 of the December 1979-Janu- ary 1980 issue of the CAIB-says "our source in Rome found him at the Rome embassy as of July 1979." That is they are using sources other than published information according to this statement. So I think that Mr. Rowan's very commendable concern for the first amendment didn't really address the substantive issues with which you gentlemen have tried to grapple. Mr. MAZZOLI. Thank you. My time has expired. The gentleman from Massachusetts? Mr. BOLAND. I want to welcome you, Mr. Evans, too, and we ap- preciate your presence here today. You don't have any problem, then, with the section 501 (b), do you, which would apply to any person who discloses information identify- ing certain U.S. intelligence personnel? That doesn't bother you too much? Mr. EvANs. Well, when one is interpreting constitutional safe- guards, there are always problems of interpretation, and what is licit and what is not, so I would not say anything so sweeping as having no problem. But I think it is a valid effort to grapple with a real security difficulty, and one that on my reading of the first amendment, which is quite different from that of some of the preceding witnesses, is quite ligitimate. If one reads the history of the first amendment, reads the debates in the first Congress in which that amendment was debated, there is no suggestion whatsoever that totally ad lib injury to the national interests of the United States could go unpunished. And in fact, Jefferson said, even during the debate over Alien and Sedition Acts, that libelous and seditious utterance should be pun- ished, he just thought it should be punished by the States. The real point of the first amendment was to protect the States with their laws against the new Government that was being created. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 So I would not say I have no problem with it because there are zones of ambiguity, but I would say that I believe it is a proper, and in my layman's opinion, constitutional effort to grapple with the difficulty before you. Mr. BOLAND Thank you. On page 3 of your statement, the next to the last paragraph, you indicate, or you note with apparent approval that the committee bill "imposes responsibility for willfully harmful disclosure following publication." The bill really doesn't make any distinction between disclosure that could harm the agent and disclosures that don't. Do you think it should? Mr. EVANS. I am sorry, I didn't-when I said "willfully harmful," I did not mean to the agent as an individual but referred to the lan- guage about impeding or impairing the intelligence function. I am not sure-again, I would certainly have no objection to an effort to write legislation that distinguished cases so that you said the harm- ing the agent is one thing and harming the national security is an- other. I think that is a matter of detail within the discretion of the legislature. My reference, however, was simply to the generic harm that you are trying to prevent. Mr. BOLAND. I asked Mr. Rowan, How do you get at the problem of the Covert Action Information Bulletin naming names? He said he doesn't think that you could get at it. That's not your opinion, though, is it? Mr. EVANs. No, sir. I think you should get at it, and I think this bill is a responsible effort to do so. Now, what was said by the gentleman from the ACLU and im- plicitly said by Mr. Rowan was that the courts would not sustain this, and I would not care to read my ouija board about what the courts might or might not do, but I do think that, within the ambit of responsibility of the Congress, you are meeting your constitutional obligations. I think something should be done, and I think this bill essentially is the thing that will do it. Mr. BOLA: D. Thank you very much, Mr. Evans. Mr. MAZZOLI. Thank you very much. The gentleman from Florida, Mr. Young, is recognized for 5 minutes. Mr. YOUNG. Mr. Chairman, thank you very much. I would like to add my welcome to Mr. Evans-I have already ex- pressed agreement with Chairman Boland-and say to him that I appreciate very much his words of support of our effort to correct a serious problem relative to the security of the United States. It is a grave question, and frankly, we are going to need all the help we can get if we are going to get the support we need to change that. Talking about changing the law, you mentioned the murder of Dan Mitrione, who was murdered by the terrorists after he was falsely identified as a CIA agent. Do you believe that our legislation should include a penalty for false identification when the life or the safety of the individual might be threatened? Mr. EVA\S. I would think that would be a reasonable inclusion. The Mitrione case-he was, as I recall, from Richmond, Ind.-this oc- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 curred when I was editing the paper out there, and it struck very hard at us because he was a fellow citizen of our State as well as of our country. I think that there should be some effort to protect people like Dan Mitrione and others who are serving our country and who are exposed to jeopardy by this kind of activity on the part of those who are trying to disrupt our foreign policy. Mr. YOUNG. You had an interesting comment toward the end of your statement relative to prior restraint, and I take from what you have said that you are happy that there is no prior restraint provision in this bill. Mr. EvANs. Yes. Mr. YOUNG. Would you expand on that? Mr. EVANS. Well, the fundamental distinction that a journalist looks at, and I think that the courts look at as well, although I am certainly not expert on that, is the difference between being responsible for the consequences of what you publish-that is, it is up to the paper to go ahead and publish something, or the TV network or the radio or what- ever the case may be. But if that injures somebody, under existing laws, whether it is the law of libel or whatever the case may be, then you know the consequences, you know the laws, and you are responsible for taking the consequences legally of what you publish. There should not be the right of publication without legal responsibility for the con- sequences, which is what is sometimes argued by people who describe themselves as civil libertarians. I totally disagree with that. I think that kind of responsibility should be in the legal structure of our country. Prior restraint is a totally different matter in that the Government steps in before you have ever published anything and tells you you can't publish; that is really a much more scary kind of operation be- cause then the thing can never see the light of day. and the public never knows what it isn't seeing, and the Government has enormous discre- tion with the prior restraint power to prevent debate. That is the normal mode of censorship in authoritarian countries. So in press circles, and in the Pentagon Papers case-and that was really the way the Pentagon Papers case was decided, that there should not be prior restraint, it came down to that-that distinction is con- sidered very vital. And therefore I was happy to see that provision, and in fact, I want to commend the committee on the care with which this bill has been drafted. It is obvious that you have given a great deal of thought to these nuances and the problems with which you have got to grapple. It is not a meat ax approach at all. And that is one of the dis- tinctions that struck me forcibly when I read this bill and the explana- tion of it. So that is the reason that I brought out that point in my prepared statement. Mr. YOUNG. Just to follow up on that, to be the devil's advocate for just a moment, in the case of the revelation of the identity of the secu- rity agent, intelligence agent, in effect we really would like to prevent his exposure, and since there is no prior restraint, the guilty party may pay with a fine or incarceration or something, but the damage has been done. Mr. EvANs. That is correct. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. YOUNG. I am one of those who always believes that especially in the case of security, if you can prevent something you are a whole lot better off than lust making someone pay for it afterwards. Mr. EVANS. Right. Well, I don't deny that a prior restraint provi- sion would be more effective than the provision you have here, but I think that would, even on my somewhat different and perhaps eccentric reading of the first amendment, that would run you into immediate problems, I think. The way you have done it, it seems to me. conforms with the historic laws of press accountability and libel and other appli- cable statutes and common law that apply to the press. So you do give up some degree of effectiveness or efficiency by not having the injunctive power that is in this other bill. Mr. YOUNG. And I would assume that you believe that the penalty will act as a deterrent. Mr. EVAN s. Well, take the law of libel, for example. The law of libel is an after-the-fact accountability for what you publish. The law of libel is not 100 percent effective. Libel is committed. But it is pretty effective. Having been a newspaper editor, I can tell you that one is very careful about making libelous statements because there is after- the-fact accountability. You check things very carefully. So while it isn't 100 percent effective, it is like any criminal law, basically, you punish the act and not the preparation to commit the act. Mr. YOUNG. Thank you very much, sir. Thank you, Mr. Chairman. Mr. MAZZOM. Thank you very much, Mr. Evans. It could be that as we develop this bill in our markup, we may ask you to submit some more statements with respect to some of the other bills that are pending, and with respect maybe to the committee bill. We certainly want to thank you today for your help, and I think if anything, the gentleman has underlined for us the difficulty of our task. When two very respected journalists can reach such diametrically different positions on one bill, I would say that we really have our work cut out for us. And if you know of a Solomon somewhere in that 600 Pennsylvania Avenue where you work, send him over, will you? Mr. EVANS. I noted on the ACLU letterhead that they are also at 600 Pennsylvania Avenue. Mr. MAZZOra. Is that right? Mr. EVANS. And I would simply say that is where the similarity stops. Mr. MAZZOrr. Well, we thank you very much. It has been a very enlightening day. Mr. BOLAND. Thank you very much. Mr. MAZZOLr. The subcommittee stands adjourned. [Whereupon, at 4:10 p.m., the subcommittee recessed to reconvene at 9 a.m., Thursday, January 31,1980.1 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 U.S. HOUSE OF REPRESENTATIVES, PERMANENT SELECT COMMITTEE ON INTELLIGENCE, SUBCOMMITTEE ON LEGISLATION, Washington, D.C. The subcommittee met, pursuant to notice, at 9:05 a.m., in room. H-405, the Capitol, the Honorable Romano L. Mazzoli presiding. Present: Representatives Mazzoli (presiding), Boland (chairman of the committee), McClory, and Ashbrook. Also present : Michael J. O'Neil, chief counsel ; Patrick G. Long, associate counsel; Bernard Raimo, Jr. and Ira H. Goldman, counsel; G. Elizabeth Keyes and Herbert Romerstein, professional staff mem- bers ; and Louise Dreuth, secretary. Mr. MAZZOLI. The subcommittee will come to order, and. we are honored to have today as our first witness on the second day of our hearings, the gentleman from Florida, the Honorable Charles Bennett. Mr. Bennett has been a distinguished Member of the House of Representatives for 30 years, and all of us on the panel have known him in several of his pursuits in the House as chairman of our Ethics Committee, as one of the leading experts in the Congress on seapower and military matters generally; and I think we have all grown to admire him and to appreciate his counsel. Mr. Bennett is particularly interested in the subject before this panel, and there is a bill, H.R. 3762, which is of his design, and he was one of the first sponsors of bills to establish criminal penalties for the unauthorized disclosures of names of intelligence agents. And Charlie, we certainly welcome you to our committee. We look forward to having your testimony, and when you conclude there may be a few questions from the panel. STATEMENT OF HON. CHARLES E. BENNETT, A REPRESENTATIVE IN CONGRESS FROM THE THIRD CONGRESSIONAL DISTRICT OF THE STATE OF FLORIDA Mr. BENNETT. Thank you, Mr. Chairman. I must say that I have watched your fine career here in Congress and appreciated it very much and had great inspiration from it. Mr. MAZZOLI. Thank you. Mr. BENNETT. And I also want to congratulate the committee be- cause I think you are doing .a good job, and a job that needs to be done, and I think it is very important that it be done. Mr. MAZZOLI. Thank you. Mr. BENNETT. I used to be on the CIA Subcommittee of the House Armed Services Committee in the days of Mr. Vinson. I think I am probably the most senior man, I feel sure I am, that was on that type (105) Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 106 of activity in the early days, and I felt then that there should have been a separate committee set up for this, and I think it is doing a good job. I appreciate the opportunity to appear before your distinguished subcommittee to give testimony on the need for legislation to provide criminal penalties for the unauthorized disclosure of information identifying individuals engaged in foreign intelligence activities. These types of disclosures have no redeeming social value and have been made mainly by individuals who are openly undermining our Nation's vital intelligence efforts. Leading the list is Philip Agee, a former CIA employee who has published the names of some 1,200 alleged CIA personnel and whose most recent book, "Dirty Work," purports to identify over 700 past and current CIA employees in Europe alone. That these disclosures have been made with relative impunity and commercial success for the writer is a travesty and serves no purpose but to encourage others in the continuation and ex- pansion of such destructive activity against the best interests of our country. Such disclosures not only place in jeopardy the lives and safety of this Government's intelligence officers and their families, as well as the lives and safety of those who cooperate with the United States in fulfilling its intelligence mission, but also have an adverse effect on the foreign intelligence and counterintelligence efforts of the United States. The fact that the United States to date has not been able to fashion a legal remedy to put a stop to such disclosures has severely damaged this Nation's credibility in its relationship with essential foreign sources of intelligence. The problem can be simply stated as follows: Current law is insufficient to cover the type of conduct that must be protected against. Congress has been unable to legislate a remedy. The disclosures continue to be made. The net result is a dam- aged intelligence capability and reduced national security. A remedy is needed now. It is urgent that the 96th Congress clearly and compellingly demonstrate that the unauthorized revelation of the identities of our' intelligence officers and those allied in our efforts will no longer be tolerated. The bill I have introduced provides the needed remedy. Subsection (a) of H.R. 3762 would make it a criminal offense for any present or former officer or employee of the United States or member of the military to knowingly disclose to anyone not authorized to receive it, information which identifies anyone not publicly associated with the U.S. Government's foreign intelligence or counterintelligence efforts, and whose association therewith is classified. Subsection (b) would criminalize the same activity as described above for subsection (a), but is focused on those who, even though not present or former U.S. Government officers or employees or military personnel, have or have had a position vis-a-vis the U.S. Government which granted them access to identifying information. The U.S. Gov- ernment contractor or his employee are an example of the subsection (b) potential defendant. Subsection (c), in turn, would make it a criminal offense for any- one not described in subsection (a) or (b) to knowingly disclose to anyone not authorized to receive it information which identifies any- one not publicly associated with the U.S. Government's foreign intelli- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 107 gence or counterintelligence efforts, and whose association therewith is classified, where, as a result of the disclosure, the identified individ- ual's safety or well-being is prejudiced, or where such disclosure dam- ages the foreign intelligence or counterintelligence efforts of the United States. Furthermore, the bill, in subsection (d), would make it an offense to falsely assert that an individual is engaged in intelligence activities where this prejudices the individual's safety or adversely affects the foreign affairs functions of the United States. The individual identi- fied as being associated with U.S. intelligence efforts, whether correctly or incorrectly, may be nonetheless prejudiced and his or her future effectiveness called into question, as may be the role he or she plays in the foreign affairs function of the U.S. Government. In addition, my bill provides injunctive relief and makes provision for an in camera proceeding so that the court in camera may determine whether the information about to be disclosed is that for which a crimi- nal penalty may be imposed. The bill does not purport to criminalize disclosures made pursuant to a Federal court order or to either of the Intelligence Oversight Committees or disclosures otherwise authorized by Executive order or by directive of the head of any U.S. department or agency engaged in foreign intelligence or counterintelligence activities. On the other hand, the bill would allow prosecutions of accomplices or conspirators, including, if guilty, members of the news media in those cases of prosecution under subsection (c). The courts have con- sistently recognized that first amendment freedom of speech does not prevent legislation such as I propose. Our distinguished forefathers who drafted the first amendment clearly never intended it to be a shield behind which those who would wish to undermine the intelligence efforts of the United States might stand with impunity. Mr. Chairman, I urge my colleagues to take swift and sure action in the 96th Congress to pass legislation to accomplish the purposes I have outlined. I am optimistic that the 96th Congress will be remem- bered as one that dared to speak out against those who are currently working to destroy our intelligence agencies. Mr. Chairman, as I drive in from Virginia to my office every day, I pass the statue of Nathan Hale and see his words under there. I have forgotten the exact words, but "I regret that I have but one life to give for my country" is the essence of it, and he has always been a hero of my life, that young man who gave his life as a spy for the revolution- ary forces in our country that established our country. I think it is a very noble calling, and I myself have been somewhat involved in it during World War II, when I was in the military services. And, I served a long, long time on the CIA Committee of the Armed Services Committee. I feel that the legislation which the committee has introduced and the legislation which I have introduced is the most important piece of legislation with regard to our national security other than the actual procurement of weapons, that is before the Congress today. I felt this so deeply that, I hired, as I have in the past, a special per- son to come work in my office the latter part of the last session of Con- gress and the beginning of this session of Congress to devote his efforts Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 to try to get a perfected bill. And I did my best to get a good bill, and I have no pride of authorship in it. I want a bill to be passed. The committee bill suits me just fine except there are a few things that I think you should think about as adding into the bill, because I don't think they should be overlooked. The in camera proceedings is a good example of that. I hope very much that some bill can come out, and anything I can do to help you in it, I will do my very best. Mr. MAZZOLI. Well, let me thank the gentleman from Florida for his very interesting and very thoughtful statement. Let me just make a couple of statements. I think the gentleman from Florida would have been delighted to hear the statement made to this committee yesterday by Jim Wright, the majority leader of the House of Representatives, in which the majority leader gave strong support to this bill and catapulted it to the top of the heap among the priority items for the second session. So I think that there is a clear and demon- strated support within the Democratic leadership structure, and he was speaking also for the White House in saying that that will be one of the priority items. I have just a couple of brief comments. Perhaps the gentleman could help me. In your bill you deal with foreign intelligence as well as counterintelligence, so would it be your feeling that members of the FBI and other agencies of the Federal Government that involve or engage in counterintelligence be given the same protections, and that is that their names, if they are under cover, if they are classified, would not be divulged, or there would be a criminal sanction for the devulg- ing of that information? Mr. BEN NETT. I would think that would be a good intellectual de- cision, but I have some apprehension about giving opponents of this legislation an opportunity to raise smokescreens where there isn't the same degree of problem in each case. In other words, the problem really is mostly in foreign espionage and things of that type, and therefore I don't know that I would recommend that expansion as a matter of tactics. I doubt it would be wise to add something that some- body might use to destroy the bill. Nobody can really refute the idea that we have to take care of the CIA and the activities they are doing, and if you are adding something to it, although I myself would favor the addition, you just run the risk that somebody will think up some reason why that shouldn't be done, and you might kill the whole bill, and I think that would be very sad because I don't think the same de- gree of problem exists there. Mr. MAZZOLI. Yesterday the committee had some very lively discus- sions all day long with proponents and opponents of the bill. I think it is fair to say that there is less objection, though there is some, but there is less objection to a criminal sanction for the disclosure of names of agents by people who are in Government or were in Government and came upon that information by reason of their official position. There is less concert and more opposition to a provision of the bill which would sanction the disclosure of names which have been gleaned through the patient sifting of records, and the putting of two to two and coming up with four. And I wonder if the gentleman from Florida might just give me some observations on whether he feels there is a difference in the two Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 situations, and if so, whether there should be some difference of approach in our bill. Mr. BENNETT. Well, my reaction is there shouldn't be a difference of approach. I have also been a newspaperman. I wrote for AP and UPI when I was in college and was a college editor of the national champions college newspaper in 1932 and have written four or five books, so I have some background in writing. I have never felt that people that wrote were any less patriotic or any more anxious to have exceptions to their patriotism established by law than anybody else. You may find a few here and there that make a religion out of the first amendment, but it is not religion, it doesn't say any more than what it says, and it doesn't prohibit a law in this area, and I would think that most loyal Americans would support a bill which also protected us against that sort of thing. Mr. MAZZOLI. I thank the gentleman. The Chair's time has expired. The gentleman from Massachusetts is recognized. Mr. BoLAND. Well, I want to congratulate the distinguished gentle- man from Florida for his appearance here today. I know he has been closely associated with this problem for some time, and in your capac- ity as-what are you on, Armed Services now? You must be No. 2. Mr. BENNETT. I'm No. 2; yes. Mr. BOLAND. No. 2 on Armed Services,,and that service you have had there, of course, clearly has given you information over the years you have spent on that committee, particularly in the area of intelligence. I am sure that you have been briefed for many, many years on the in- telligence activity not alone of the CIA, but the Defense Intelligence Agency and what other agencies appear before your committee, and consequently, you are conscious of the necessity for some action in this area. Your bill, as you have indicated, is much broader than the bill that the committee has filed, but you indicate that you support the commit- tee bill. There are some problems with it that have been raised by witnesses who appeared here yesterday. You indicate that you think that even your bill would be constitutional. There were some questions raised yesterday of whether or not ours, our being the committee bill, is constitutional, and since ours is more narrowly crafted, that gives us pause to reflect. But in any event, we will meet that problem. Some have indicated there is no necessity at all for this kind of legislation and that it is perfectly all right to identify those who are employed by the intelligence agencies. But those of its who sit here, and I think the vast majority of the Members of Congress, recognize the problem, too, and particularly those who have had some association with them as you have had. So we appreciate your comments on this matter, and I might say that we will do our very best to craft a bill that meets the problem, and that meets it in a manner that criminalizes some of the actions that have been going on and some of the problems that have been associated with it. You have been very helpful to this committee, and I am sure that you and your staff will be coming to a judgment on that, and I only want to offer my congratulations to you for coming here today, and also for the very significant part you played in the legislative process. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. BENNETT. Thank you very much. I would be glad to cooperate in any way I can with the committee. I think it is doing an excellent job. Mr. MAZzOLI. 'Thank you. The gentleman's time has expired. The gentleman from Illinois, Mr. McClory, is recognized for 5 minutes. Mr. MCCLORY. Thank you, Mr. Chairman. First, of all, I want to express my appreciation for your assurance that the majority leader is setting the agenda for the House of Repre- sentatives, and that this has a top priority status. I have been wonder- ing who was in charge of setting the agenda. I just thought there was no one doing it. But I am pleased indeed to know. Mr. MAZZOLT. Since the gentleman has commented, may I make this statement? Mr. MCCLORY. I vield briefly. Mr. MAZZOLI. And I won't subtract the time, but I must say that the gentleman ,yesterday appeared to me to be perhaps representing the loyal opposition in many of his statements, so I think maybe we sort of cancel out one another. Mr. BOLAND. May I just answer the gentleman myself? I suppose it is very difficult for the majority leader and the leadership on our side to really set an agenda unless they get something to put the agenda on. So hopefully in the next couple of months we will give them a smorgasbord and they can make their choice and establish an agenda. Mr. MCCLORY. Well. we are all glad to know who is in charge, and we will deal with the issues as they come. But I want to express my appreciation that this is going to have top priority status. And also, I want to express a warm welcome to the gentleman from Florida, Mr. Bennett, and to express appreciation for his support of the principle involved in this legislation. I don't have any disagreement with any of the testimony of the positions that have been stated. Several of the questions I had in mind have already been asked by the chairman. Your bill in section 800(f) states that no one can be prosecuted as an accomplice or accessory to someone violating the provisions of the measure which would provide for these punishments for revealing the identity of agents. nor can a conspiracy prosecution be made. Mr. BENNETT. Well, it says no person other than a person described in subsection (a) and (b) shall be subject to prosecution as an accom- plice or accessory within the meaning of the offenses provided. I wanted to find definitely who was to be blamed and nobody else would be. Mr. MCCLORY. Well, what you want to do is get at the person who makes the disclosure, who identifies the person, and you don't want to have that person have an out, for instance, by saying, well, I got the information from someone else. Mr. BENNETT. Right. Mr. MCCLORY. If there is the intent present that it would impair and impede our intelligence capabilities as a result of revealing the identity of the agents or of identifyinz sources for securing intelli- gence, that person should be subject to these criminal, these severe penalties. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. BENNETT. Right, yes, sir. Mr. MCCLORY. Well, I can't help but agree with you, and I envision you and myself as liberal Members of the House of Representatives, and I have been very impressed recently by a liberal position an- nounced most eloquently by Senator Pat Moynihan of New York who takes the position that if we don't protect ourselves-we liberals who enjoy these vast freedoms that are guaranteed to us under the Constitution against the attacks of these secret, aggressive efforts of the KGB and our other adversaries-we are in danger of losing the very things that we cherish so much. Mr. BENNETT. Absolutely. Mr. McCLORY. You subscribe to that point of view, don't you? Mr. BENNETT. I certainly do, I certainly do. Mr. McCLORY. So that this would be one method of protecting us against those secret, undercover attacks of our enemies by having our own covert agents identified and named. Mr. BENNETT. Yes. I think that is very important. I think your committee has done a good job in putting in the bill that you have. Mr. MCCLORY. Well, I thank you very much for your major contri- bution to our work. Mr. BENNETT. Thank you, Mr. McClory. Mr. MAzzom. The gentleman's time has expired. We very much appreciate the distinguished gentleman from Florida's appearance today and wish him well. Mr. BENNETT. Thank you. Mr. MAzzoLI. The Chair would ask our next witness, to come forward Mr. William Schaap. Mr. Schaap is a coeditor of the CovertAction Information Bulletin, a publication about which we have talked much yesterday and of course today. Mr. Scliaap is a graduate of Cornell University and the University of Chicago Law School, and in addition to his connection with the CovertAction Information Bulletin, Mr. Schaap is editor of the Mili- tary Law Reporter, and was coeditor of the "Dirty Work 2: The CIA in Africa." Mr. Schaap, you are welcome, and would you please in- troduce for the record your colleagues so that the reporter can have that information. STATEMENT OF WILLIAM H. SCHAAP, COEDITOR, COVERTACTION INFORMATION BULLETIN; ACCOMPANIED BY ELLEN RAY, CO- EDITOR, COVERTACTION INFORMATION BULLETIN; AND LOUIS WOLF, COEDITOR, COVERTACTION INFORMATION BULLETIN Mr. SCHAAP. Yes; I will. Thank you, sir. On my left is Ms. Ellen Ray, and on my right is Mr. Louis Wolf. The three of us comprise the staff of the Covert Action Information Bulletin. Mr. Chairman and members of the committee, the CovertAction Information Bulletin is pleased to have this opportunity to present its views to you. Let me mention one point before I continue with my prepared state- ment. We were somewhat concerned yesterday with the references to so-called journalists, and to persons purporting to be journalists. I Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 just want to note for the record that Mr. Wolf has been an accredited journalist for 14 years. Ms. Ray has been a documentary film maker for 12 years, and a writer for the past several years, and I have been a full-time professional writer for more than 4 years, on top of some 15 years practice of law. Philip Agee, who has been mentioned before the committee, incidentally, and who left the CIA some 10 years ago, has also been a professional journalist since that time. Finally on that subject, let me clear up some other obvious miscon- ceptions before I proceed. Mr. Agee is neither a director, an officer, nor an editor of the CovertAction Information Bulletin. He does con- tribute articles to it, although, as one could ascertain from reading them, those articles do not name any names. You might all be in- terested to know that Mr. Agee has not, to our knowledge, named any names in more than 3 years, and that applies as well to both "Dirty Work" and "Dirty Work 2," the two books which we sitting before you have coedited. Because so much of the discussion which has led to the introduction of H.R. 5615 suggests that it is aimed expressly at us, we would like to touch briefly on our philosophy and on what, in fact, we do. Al- though there may be and surely is a profound difference between our view of appropriate intelligence work and that which has led to the itroduction of a, bill such as this, we do suggest that our position has been misrepresented. Our publication, as you are aware, is devoted to exposing what we view as the abuses of the Western intelligence agencies, primarily, al- though not exclusively, the CIA; and to exposing the people respon- sible for those abuses. We believe that our Nation's intelligence ac- tivities should be restricted to the gathering of intelligence in the strictest sense. We believe it is wrong, and in the long run extremely detrimental to our democracy, for this country to interfere covertly in the affairs of other countries. We believe that other countries should choose the governments and systems which the people of those coun- tries want for themselves. And we also believe that when our Govern- ment chooses to support another government and to give it aid, it should do so openly and publicly. In this connection, we believe that the CIA, as it is at present, is probably beyond reform. We believe that it should be completely re- vamped or abolished altogether and another new agency created, strictly limited to the gathering of intelligence. In sum, we believe that the covert manipulation for which the CIA has become notorious, undercover officers and agents corrupting and bribing officials, buying elections, secretly controlling various media, employing economic and political sabatoge, all the way to bombings and assassinations, that this manipulation does not strengthen de- mocracy here in the United States, but in fact, weakens it. Indeed, over the past 30 years or so, we would say that the CIA has generated more hatred of the U.S. Government around the world than any other single institution. The situation today in Iran, for example, is in large part, we believe, because of the CIA, not in spite of the CIA. If it is a reasonable goal for a nation to try to live in harmony with the rest of the world, the CIA, we submit, is constantly frustrating that goal for this country. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Now, before commenting on the specifics of the bill, we would like to try to dispel two myths which affect not so much our actual work as other people's perceptions of it, myths which have clearly affected the deliberations of this committee. First of all, we believe there is the myth that exposure subjects a CIA officer to a serious threat of physical harm or even death. This is objectively false. Of the more than 1,000 CIA people who have been named over the past 5 or 6 years by many people and many pub- lications in many countries, not one has been physically harmed on account of it. Indeed, we believe they are rarely transferred ahead of schedule. We won't belabor the point here, but you should 'be aware, as we know the CIA is, that Richard Welch, the CIA station chief in Athens, was murdered by people who were originally stalking his predecessor, not him, and that his death had nothing to do with having been named many times in various countries over the years as a 'CIA officer. In the one instance where physical harm might have been an issue, the taking of hostages in Iran, we have consistently, and against considerable pressure from the media, refused to comment on the identifications of anyone involved. I might say that in that connection, we have received calls from virtually every network and every major newspaper in the United States asking us if we know the names of CIA people being held hos- tage, and if so, if we would tell them. We have refused to comment on it. Mr. BOLAND. Do you know? Mr. SCHAAP. I don't think it would be appropriate to answer that question publicly, sir. I would answer it privately. We have taken the position that it would be wrong for us even to say whether or not we know whether or not there are people because it might be interpreted by someone as saying that we do know there are some, but we won't say who. I would be happy to inform the chairman of the knowledge that we have in closed session, sir. The second myth is that we and others doing similar work have some special access to secret classified information, that it comes from some inside source. This is simply not true. None of us ever worked for the Government. The deductions we draw, the journalistic con- clusions we come to, that certain persons are in fact intelligence offi- cers, come from dozens of public sources, from research methods well known and well publicized. Similar deductions and conclusions are made every day by investigative journalists in this country and around the world. The identities of the people we and others have exposed are usually quite well known to the host country governments, and we are sure they are already known to the other major intelligence serv- ices. Indeed, as this week's Newsweek points out, CIA officials admit "the names aren't news to hostile governments." These undercover people are usually not known, however, to the people of the host country, and to the people of this country, even though their con- duct is generally totally and completely illegal in the host country and often illegal at home. Finally, I would like to outline our specific arguments regarding H.R. 5615. We believe that the entire bill represents a serious threat Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 to the backbone of democracy, particularly freedom of the press. The bill is not, in reality, aimed merely at our publication or others like it; it is aimed at journalists generally, and at their sources, at out- side investigators and inside whistleblowers. For one thing, the bill is not even limited to exclude exposures of patently illegal activity. Nor is it limited to the exposure of identities learned because of access to classified information, or even to identities at all. The bill censors any information that identifies an undercover officer or agent. Yet it is virtually impossible to expose an improper or unlawful or im- moral operation or activity in government without disclosing infor- mation from which one might ascertain the identity of the persons responsible for such an activity. Whistleblowers have traditionally been this country's greatest weapon against official corruption and immorality. This bill, we believe, would wipe out whistleblowing in the intelligence field where it may be most necessary. Critically, from a constitutional point of view, the bill is not lim- ited to information which is in fact secret and classified. There was considerable testimony yesterday before the committee about Judge Learned Hand's opinion in United States v. Heine, which I would again recommend that the committee carefully read. It deals with the question of publishing information which is in fact already public. This appears to us to be the first time that something really approach- ing an Official Secrets Act has been so seriously proposed in the United States. We believe that if truly secret and classified infor- mation is exposed, and if it is truly damaging to the national secu- rity, then the existing espionage laws are sufficient to protect the interests of the country. Lastly, the idea of specific intent required in the second part of the bill presents another great difficulty. The bill only criminalizes jour- nalism, it appears, if the writer's intent is "to impair or impede the foreign intelligence activities of the United States." But what if the intent is to expose illegality or to engender greater morality in gov- ernment? The specific i_ltent requirement does not minimize the un- constitutionality of the section. What one person sees as reform an- other will see as impairment. Indeed, as I said earlier, we believe that the best thing for the security and well being of the United States would be to limit severely, if not to abolish, the CIA. Our intent both in exposing the abuses of the intelligence agencies and in exposing the people responsible for those abuses is to increase the moral force of this Nation, not to lessen it. That many people would disagree with us, and I might add, disagree vehemently with us, is obviously clear. That the CIA would assume our intent is simply to impair or impede their foreign intelligence activities also seems likely. Patriotism, we would suggest, is to some extent in the eye of the beholder. But it is very distressing that such disagreements could become the substance of criminal prosecutions under a bill such as this. Our society is supposedly dedicated to openness, to accountability, to continuing reform. Investigative iournalists and their sources rep- resent one of the key elements of that tradition. The danger that the hysteria of the moment could subvert that tradition is great. The current move to unleash the CIA, of which this bill is just one part, Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 would be, we believe, completely counterproductive. Efforts to exempt the CIA from the Freedom of Information Act and to repeal the Hughes-Ryan amendment are equally dangerous. To conclude, we hope that you understand our motivations. We hope even more that you recognize the effect this bill would have, not on us, but on freedom of the press in this country and on government morality. If you have any questions, we would be glad to try to answer them. Mr. MAZZOLL Thank you very much, Mr. Schaap. We have appreci- ated your being here, and your statement is certainly quite thought provoking. I guess I have to confess, to be candid with you, I just really have a hard time, as much of a projection as I could make, to really half-way agree with you. I can see where you would be motivated to disclose the outrages and overreachings of an intelligence agency, but I just really, I just can't quite handle the approach that you and your people take. I also recognize that it is important to have a dialog in America. The b:'auty of this Nation is we can have people who so very diametrically disagree with one another and can still be in the same room together without polemics going back and forth. But really, I have to say in candor that your view, while carefully reached and zealously held, is, I am sure, a very, very small minority, not lust in respect to Capitol Hill, but I think through the country, and I think legitimately a small part of that. I would ask you a question here. On page 2 of your statement you say that you believe the Nation's intelligence activities should be restricted to the gathering of intelligence in its strictest sense. Accepting that that should be the mission of our intelligence agen- cies and anything short of that or beyond that is wrong, does not your activity impede and in many cases interrupt and destroy that intelli- gence gathering mission? Mr. SCHAAP. Well, I think that the answer depends on understand- ing our philosophy about the CIA, and again, I appreciate what you said. We have no delusions that we have come here to change the minds of the members of the committee. We have come here to try to explain where we are coming from, and of course, on another level, to make clear that we do not use secret documents and we do not have any inside line to the CIA, that we work from public research. But our philosophy, with which you may well disagree, is that the CIA is in fact an evil instrumentality I guess I would put it, that it is beyond reform because of a tradition which has built up over many years of doing the activities which have been exposed in the press over the past number of years. It is our belief that those activities continue to this very moment. It is certainly my belief that there are members of this committee who would quite sincerely take the position that it is a good thing that they do. We sincerely take the position that it is a very bad thing that they do. We think, therefore, that they have to start over again, either with a completely revamped agency or with a new agency. Mr. MAZZOLI. I appreciate that, but of course, that is not going to happen, and I wonder if the effort, though, at exposing the wrong- Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 doing doesn't really destroy their mission as you see it, which is to gather intelligence. It certainly doesn't make it any better or easier; does it? Mr. SCHAAP. No; I don't think it makes it any easier. Our problem of course, is that the manipulation that we see, or the dirty tricks, as they are called, we feel is so intertwined. It is our understanding- and we are certainly not experts-that the vast majority of intelli- gence gathering, up to 95 percent at least of it, is done through micro- wave interception by the National Security Agency, is done through electronic surveillance, and is done through clipping of newspapers. There are I don't know how many thousands of employees at the CIA headquarters in Virginia analyzing documents, reading books, clip- ping newspapers. We have no problems with that kind of intelligence analysis whatsoever. Mr. MAZZOLI. Mr. Schaap, on page 4 of your statement, in the second paragraph, you talk about the bill censoring information. I would respectfully disagree. As I understand our bill, there is no prior re- straint. There is a sanction for the disclosure of information, but I don't see any censorship, and I wonder if you believe that the bill does censor anything. Mr. SCHAAP. I was not technically referring to the concept of prior restraint at all; no. I meant the restraint that would be imposed by criminal sanctions. Mr. MAZZOLI. Thank you very much. One last question, and very briefly, my time has almost expired. Don't you think, or do you think that you could accomplish your mis- sion, which you, again, have reached very thoughtfully, to reform the Intelligence Agency without naming names? Mr. SCHAAP. Possibly. Our feeling at this point, after working in this area for several years, is that we cannot, partly because of the value that it has in many instances in explaining operations. The dis- cussion most relevant, I guess, was yesterday's comments about the King Hussein story. An editor wouldn't even have put it in the paper much less page 1 if he didn't say who it was. It is possible that in some instances it wouldn't make any difference. We don't, for example, name low-ranking telecommunications oper- ators, drivers of cars, the person that sweeps up the hallway, or any- thing like that. We do feel strongly, though, that you cannot separate the responsibility for the actions from the individual responsibility of the people who do it. If you accept our premise-I know that you don't-but if you accept our premise that the CIA station in a foreign country is manipulating, is paying off politicians, is buying elections, is doing whatever, putting aside assassinations and so on, if you accept that that manipulation is taking place, the individuals involved are responsible. They certainly know what they are doing. We would have a disagreement about whether what they are doing is right or wrong, but certainly not that they know what they are doing. Mr. MAZZOtr. Thank you. My time has expired. It is an interesting answer. I appreciate it. The gentleman from Massachusetts, our chairman. Mr. BOLAND. Thank you, Mr. Chairman. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 I want to welcome Mr. Schaap and Mr. Wolf and Ms. Ray for their appearance here this morning. It is nice to get both sides of the argu- ment, and I think you present it very well. As a matter of fact, you even present your Covert Action Information Bulletin very well. It is a slick publication, I mean that the format is and the paper you use make it slick, and the information in the bulletin is slick information, too. Mr. SCHAAP. We appreciate the comment. We might point out that the CIA as well as Congress were among our earliest subscribers. Mr. BOLAND. What is your circulation, about 2,000? Mr. SCHAAP. No, it is a little bit more than that. It is probably about 4,000. Mr. BOLAND. How many do you actually sell in the bookstores around the area? Mr. SCHAAP. More than by the mail subscriptions. I would say the mail subscription list, the bulk mail subscription list is roughly 1,000, and the bookstores vary between 3,000 and 4,000. We never know exact- ly because of returns. Mr. BOLAND. All right. Well, your circulation is a clear indication that there is a minority, albeit a small one, but there is a minority of people in this Nation that share the same concern that you do, or that the three of you do. You are the only three that actually write for it, too, are you ? Mr. SCHAAP. No, we have outside journalists who write articles for it on occasion. We do all the editorial work, and although I appreciate your comment about slickness, you should understand that the layout is generally done by the three of us staying up until 4 in the morning the night before we are supposed to get it to the printer, by using our hand waxer and slapping it down on some sheets of paper. Our printer does do a nice job. But we edit it entirely ourselves. We have more and more asked for outside journalists to write for us, and in fact have had some people fairly well known in their fields write articles for us. Mr. BOLAND. All right, just a moment ago, Mr. Schaap, you referred to the CIA as an evil instrumentality. Is that the description you want to apply to it today? Mr. SCHAAP. Well, to the extent that the manipulation we are talk- ing about still takes place, yes. That is the philosophical under Mr. BOLAND. What do you know about their manipulations? Give me one example of some manipulation that now takes place that makes it an evil instrumentality. Mr. SCHAAP. If I knew something that was taking place right now, it would be in this issue of the Bulletin, sir. I can only tell you about what was taking place. I don't know what the most recent exposure of a particular incident might have been. Our problem is that there is no past experience to give us reason to believe when the Agency makes the comment, in whatever words they might make, "we don't do that anymore," and I say that because over the years, every time that has been said, and on several occasions to this Congress by officials of the Agency, under oath, it has turned out to be untrue. By no means do I mean that everything that is going on rises to the level of the intervention in Chile or the overthrow of Mossadegh in Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 118 Iran, or to Guatemala, or so on. By no means do I mean it that every- thing or even a majority rises to that level. I simply feel to a moral certainty that it is going on now. I am sure there are politicians being paid off right now by our Government through the CIA. I am sure there are elections being bought right now by our CIA. We will find out about them a year from now. Mr. BOLAND. You state that one of the aims of the CovertAction Information Bulletin and of those who are associated with it is to stop illegal or immoral activity. Is that a fair statement of one of your beliefs? Mr. SCHAAP. Yes. Mr. BOLAND. Is the issuance of fake passports illegal, in your judg- ment? Mr. SCHAAP. Is the issuance of fake Mr. BoLAND. Fake passports. Mr. SCHAAP. I would imagine in every country in the world it is illegal. Mr. BoLAND. Would you be critical of the-if it were so, would you be critical of the Government of Canada for issuing fake passports to the Americans who were secreted out of Iran? How would you judge that particular action? Mr. SCHAAP. I don't think I would be critical of it. I have no prob- lem with securing the release of the hostages. I very much wish we had no hostages in Iran. Mr. BoLAND. Well, I am talking about the Americans who were secreted in the Canadian Embassy or the Canadian residence there; and whether or not the Canadian Government issued fake passports. I have no knowledge of that, but if the Canadian Government did, would you be critical of the Canadian Government for engaging in an illegal activity? Mr. SCHAAP. Not that illegal activity, no. I am not critical that they assisted in helping these people to escape, nor am I critical that, ac- cording to the newspapers, the CIA assisted in forging some visa stamps on the passports in order to assist them to escape. I am some- what critical of the mass media that published that fact. The Wash- ington Post has shown less restraint than we have in this area, which I find somewhat surprising. We would not have published that fact which apparently has been so inflammatory to the Iranian authorities. Mr. BOLAND. Now, you also say that your intent is to expose abuses, and that H.R. 5615 would criminalize whistleblowing. What abuses does your naming of names section reveal? What abuses are surfaced or what come to the surface as a result of your naming names in the bulletin? Mr. SCHAAP. Well, I would imagine that that information, in par- ticular instances, especially diplomatic cover officials in embassies, would only come to light thereafter and would be recognized by the citizens of the host country. In most cases where we are simply re- porting on a case officer in a country, we don't know precisely what he is doing. Again, as I said, you have to understand, our philosophy would posit that a large portion of what he is doing is wrong, and it is bad for this country that he is doing it. It generally comes out after- ward what the specific things might be. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. MAZZOLI. I'm sorry, the gentleman's time has expired. Mr. BOLAND. Thank you. Mr. MAZZOLI. The gentleman from Illinois is recognized. Mr. McCLOxr. Thank you, Mr. Chairman. My principal observation is that while the testimony and the activ- ity of this publication appears to be directed at abuses of the CIA and other intelligence agencies, what we are dealing with ourselves are what we regard as abuses of first amendment rights which we feel threaten the destruction and loss of the first amendment privileges which we have. I have made mention of it here several times about a change in direction insofar as the liberal community appears to-the position they appear to be taking as a result of the tremendous threats of the KGB and other covert operations of adversary nations. Now, I am unaware, you can tell me perhaps, that you made mention of microwave and electronic interceptions and so on, and it is virtually public knowledge that the Soviet Union engages in all kinds of inter- ference with our private communications. And, the charge has been made, and apparently a valid charge, that in Geneva, Switzerland, the KGB is operating with literally thousands of covert agents. In the U.N. in New York City, in this very country, and in its various em- bassies and through its visitor programs and so on, they have large scale covert operations that are taking place. What, if anything, have you done to try to expose any of the covert operations of any persons that I would regard as our enemies, those that are trying to destroy these first amendment rights that you pur- port to be championing ? Mr. SCHAAP. Well, let me say that I don't know very much about the KGB. You should understand that if they are doing the same things that we say we don't like the CIA doing, we don't like their doing it either. Mr. MOCLORY. Well, you announced the publication of your Covert- Action Information Bulletin in Havana, Cuba, in July 1979. You must have some contacts and some relations with Soviet satellite nations to be involved in a business activity there, haven't you? Mr. SCHAAP. There are two inaccuracies in that. We didn't start the magazine in Havana, Cuba. It started approximately a month before the 11th World Youth Festival which took place in Havana and at which we attended. That was the event that was going on at that time and it happened to be scheduled in Havana. We were invited by the International Committee and we were there. I have no contact with the KGB, if that is what you are implying. We really don't know much about it. As I said, we are not in favor of anybody doing these kinds of things. The problem is that Mr. MCCLORY. Have you ever exposed yourself or named any for- eign covert agents? Mr. SCHAAP. We have some, on occasion, some Western, some French or British, but that has mostly been by other people writing for us. The point that I am making only is that we are Americans, we know about our Government, we are trying very hard, in our opinion, to make our Government a better government. I certainly hope that there are Russians, citizens of the Soviet Union trying very hard to make their Government a better government. I hope there are people like that everywhere. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. MCCLORY. And to justify your publication and your position you suggest that people in all nations should have the right to choose the government they want, and yet it seems to me that what you are contributing to is denying the opportunity of people to have the kind of government they want. In other words, we have a growth and expansion of totalitarian governments as a result largely of secret activities that they carry on to undermine and suppress the interests of their own people and to preclude our opportunities to communicate these principles of freedom, these opportunities for self-expression or self-determination in those very countries. Mr. WoLF. Mr. McClory, may I say here that I think it is impor- tant to remember that for the United States to stand as a beacon before the world, it must demonstrate this, and it must carry out its principles in fact, in the way Mr. MCCLORY. You don't think we are? Mr. WOLF. Well, I think that the CIA stands for quite the opposite of what I am talking about here. Mr. MCCLORY. Well, do you think that if the CIA or any agencies, covert or overt, support the opportunities for people to vote in free elections, do you think that that is contrary to our interests, and can you tell me any instance where any of our intelligence agencies have tried to suppress that opportunity? Mr. SCHAAP. The most obvious example, which I think this Con- gress has Mr. MCCLORY. Do you know anything about what the CIA or what our Nation did or the intelligence agencies did between 1945 and 1965 ? Mr. SCHAAP. Well, my understanding is that they pumped many millions of dollars into the Christian Democratic Party in Italy, for example. Mr. MCCLORY. Well, do you think Western, free Europe is anti- American? Mr. MAzzOLI. The gentleman's time has expired. We will have a second round. Mr. MCCLORY. Well, could he answer? Mr. MAZZOLI. Yes, I will yield a minute. Mr. SCHAAP. I will answer very, very briefly. I know we have a pro- found difference of opinion on it. All I am saying is that I think it is wrong for this country to secretly pump millions of dollars into the coffers of a particular political party in another country. I think it is wrong for anyone to do that. Mr. MCCT.ORY. Well, I can only observe you are not answering the question. Mr. MAZZOLI. Mr. Schaap, let me ask you, on my time, just briefly- at the bottom of page 3 you seek to disabuse the committee of any thought that you use clandestine means to get your information, or that you use classified material, but you work with public records and you don't have some special access. Maybe the term "special ac- cess" is important in this, or that it comes from inside sources, because staff handed me a copy of your Anril-May 1979 issue in which there is a very long secret document, Department of State. dealing with something that occurred, I guess, in Europe. So-and this is the first time I have seen your nublication-apparently you do use classified information and publish it. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 121 Mr. SCHAAP. I am sorry, which issue is that that you have before you? Mr. MAZZOLI. April-May 1979, on page 6, and perhaps the use of that document can !be squared with your statement at the bottom of page 3, but it seems like you are leading the committee, in your state- ment on page 3, to believe that classified information doesn't play a part, it is gleaning public records and whatever. Mr. SCHAAP. Well, that particular example can be explained very easily. This document appeared prior to our publication in an Italian newspaper, I believe called La Repubblica. It appeared in full, and in fact, one of the reporters for La Repubblica sent us a copy in the mail, and we additionally received two other copies in the mail anony- mously, I don't know where from, but in fact, it had already appeared in full in an Italian newspaper and was not secret. Mr. M&zzou. Let me-and maybe I am wrong, because I really don't want to read anything especially into this, but on page 3 of your statement in which you say that despite the entreaties of your col- leagues in the fourth estate you have not succumbed and you have not given out the names of the CIA people, if any, in Tehran, and you say that you take some small issue with your colleagues at the Washington Post for having published the fact that allegedly CIA helped doctor the visas. Mr. SCHAAP. For having published it while there are hostages being held. I wouldn't mind it being published after there was no situation like that. Mr. MAzzom. I find this almost-well, it seems to me that you are really trying to perhaps have it both ways. You are trying to indicate that you have a certain honor, if you will, or righteousness in how you approach this, and at the same time you, without any backward looks, publish names, some of which are not even correct. You know, if they are correct, possibly your righteousness has been displayed and dem- onstrated concretely, but sometimes they are wrong names, sometimes you finger the wrong people. Mr. SCHAAP. Nobody has ever proved that to our satisfaction, sir. By the way, I might add, no one has ever sued us for being named, no one has ever threatened us for being named, no one has ever pointed out a mistake. Mr. MAZZOLI. Well, I would hardly think that people would ever sue you, for obvious reasons. But, I wonder why you would argue with what the Post has done. I mean, why would that concern you, give you trouble? Mr. SCHAAP. It gives me trouble because we are very sensitive to this aspect of putting people's lives in danger. Ever since the Welch as- sassination, there has been an assumption on the part of many people that it was caused by his having been named in a predecessor magazine of ours that we did not work on at that time, called CounterSpy, when in fact that wasn't true. The real problem is that as I recall I think in March of this year Admiral Turner admitted in a speech he was giving at Johns Hopkins that perhaps it was true that the naming of Welch in CounterSpv had nothing to do with his being killed, but that was irrelevant to the issue then being discussed. We have had to live with that for a number of years. We are not in favor of putting anyone's life in danger and don't believe that we do. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 The situation in Iran is sui generis, and that is why we feel so con- cerned. It is not a principle that relates to the concept of naming names. Mr. MAZZOLI. Well, let me thank you again. As I say, there is a profound disagreement between the two of us, but I think that you have served a very useful purpose in explaining to this committee the position and the perspective which you use in doing your work. My time has expired. The gentleman from Massachusetts is recognized. Mr. BOLAND. Mr. Schaap, where do you draw the line in exposing secrets? Is it OK to name names of agents but not the details of re- connaissance satellites, for instance? Mr. SCHAAF. "well, I don't know very much about reconaissance satellites. Mr. BOLAND. Have you ever published anything about reconnaissance satellites? Mr. SCHAAP. To my knowledge we have not published anything having to do with reconnaissance satellites. Mr. BOLAND. But if you had, if you had information with respect to highly secret reconnaissance satellites, I presume that you would print it. Mr. SCHAAP. I am not so sure. I don't think we would unless it was a situation where it related to manipulation of events or dirty tricks. As I said, we have stated publicly many times, we are not against intelligence gathering in that sense. Mr. BOLAND. All right, where do you draw the line on exposing secrets, then? You are in the business of exposing secrets, are you not, in a sense? Mr. SCHAAP. In part, in part. Mr. BOLAND. Sure. Mr. SCHAPP. Let me point out again that we publish a 32- or 36-page magazine,. 1 or 2 pages of which may be devoted to naming names, and unfortunately, we live with the fact that nobody ever talks about the rest of it, but we do publish investigative pieces and political anal- yses and reports which don't name any names but discuss politics around the world. Mr. BOLAND. I suppose that one of the reasons why people center around naming names is because that is a very-for a lot of people that is very serious. In response to Mr. Mazzoli, I thought I would ask this follow-up question. What do you know about the 1,000 individuals that you have exposed that leads you to believe that they are performing individ- ually illegal acts, and what makes you so confident that no harm has come to those whose names have been exposed or disclosed or harass- ment to their families? You really don't have that knowledge, do you? You don't Mr. SCHAAP. I feel fairly certain that certainly if any serious harm had occurred to anybody we had named, that the press office of the CIA would have called a press conference and had it on the wire services instantly. The Welch assassination, they had a press confer- ence called before he was in his coffin. Mr. BOLAND. Well, I am not sure that they would do that. The CIA can respond to that one, though. We will certainly ask whether or Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 not. I am not sure they would respond in the way that you have in- dicated because I think that might very well lead to harm to others. But I presume that you would agree that harm can be done to fami- lies, that they have to move, they have to pull up their roots in a par- ticular country when the name of an agent, when a particular agent's name is disclosed, and harassment can easily occur and has occurred many, many times to the homes and the families of those who are con- nected with the intelligence community in various countries whose names have been disclosed. Now, would you consider that to be harmful? Mr. SCHAAP. I am not sure what you mean by harassment. Of course, I have no knowledge of any that has occurred. As I said, we are against any physical harm. We have no reason to believe any has oc- curred. But frankly, within the ambit of our philosophy, which is that we think the agency is beyond reform and ought to be revamped, our aim is to try and stop it from continuing to do what it is doing. If it were proved to our satisfaction it didn't do those things, we would feel completely differently. Mr. BOLAND. Now, let me ask you again, what abuse are you stop- ping by naming names? You know, that is one of the purposes, you say, the abuse of the intelligence community, the abuse of the CIA, and naming names to me doesn't stop whatever abuses you are con- cerned about. Mr. SCHAAP. Well, it stops a large area, we think or we hope, which has to do with the undercover officers obtaining the confidence of persons in various positions in other countries by pretending to be something other than what they are. The only way they can really get to meet let's say an opposition politician or a labor union leader in cir- cumstances where they can then hope to, in effect, corrupt that person and cause that person to become an operative for them would be by having this cover of pretending to be something else. Mr. BOLAND. Well, how do you obtain intelligence in foreign coun- tries without cover? Mr. SCHAAP. Again, the problem-I agree that that is necessary. The problem is our philosophy about the CIA as an institution and the abuses which it has committed. If there were a fresh start, and if it were simply intelligence gathering, if there were a different esprit de corps, if there was not what we feel is a veneer that has built up over many years of allowing an agency to think it can do virtually anything it wants in the world, including killing, murdering, bomb- ing, and everything under the sun. If it weren't for that, we'd feel differently. Mr. BOLAND. Well, I think a lot of people would agree with that, the abuses have been extensive in the past, and the question is whether or not they are present. I am convinced they are not, but in any event, is your bottom line that the United States should not be engaged in any covert activities? Is that a fair assessment of one of your positions? Mr. SCHAAP. No, any covert manipulation. Mr. BOLAND. What is the difference between covert manipulation and covert activity? Mr. SCHAAP. Well, if someone under cover is quietly attending po- litical rallies and making note of what the political temper in the area Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 is 'and so on, that is no problem. If, on the other hand, the United States, through the CIA, is paying money to certain political parties so that they can have more election propaganda and win the election, that we disagree with. Mr. MAZZOLI. I am sorry, the gentleman's time has expired. Mr. BOLAND. Thank you very much. I appreciate your appearance here today. Mr. MAZZOLI. The gentleman from Illinois. Mr. MCCLORY. Just reading from one of your advertising letters, I guess, with which you send a complimentary copy of your Covert- Action Information Bulletin, and then inviting the person to sub- scribe, you mention not only naming names, exposing CIA case officers overseas, ". . . we also commence with this issue the column entitled `Sources and Methods' dealing with some of the more unusual tech- nical accomplishments of the intelligence complex." It seems to me that it -is inherent in the intelligence community to, as we develop the techniques and methods and sources for gathering information, which is the principal activity of intelligence work, to not expose those to persons who would utilize them in a way which would be adverse to our national security interests. How do you justify that, publicizing that kind of activity? Mr. SCHAAP. Sir, if you would read the column in question, you would discover that it does not deal with secret information. It in fact deals with public information reported in books and scholarly journals. The particular article in question, which was reported all over the world, dealt with using essence of cockroach to track people and how powerful it was as opposed to almost any other substance. It was quite humorous, in fact, and was picked up by many wire serv- ices. But it came from a public book which is all over and everbody knows about it. Mr. MCCLORY. Well, you make the pretense that you identify CIA officers by reading publications, but both your magazine and the book "Dirty Work" by your associate Philip Agee-or your contributing editor I guess you call him, Philip Agee-and your associate Mr. Wolf, list as sources, "Paris Embassy sources, Athens Embassy sources and Department of State sources." So you do have these people who ap- parently spy for you and on other Americans, do you not? Mr. SCHAAP. Well, that is a bit of an overstatement. Mr. MCCLORY. Are these covert agents of the CovertAction publication? Mr. 'SCHAAP. No, by and large those are people simply confirming that CIA case officer Joe Smith is in fact at the Paris Embassy. It is very often done by picking up the telephone, calling the Embassy, and asking for Joe Smith. Joe Smith gets on the phone. As many witnesses testified yesterday, and we are not about to announce the method- ology, I don't want you to get concerned, it is very simple, from a number of books and magazines, to discover that a certain supposed State Department employee is in fact a CIA case officer. If the diplo- matic list published by the Government of France lists him as being in Paris as of a certain' date, you have a friend in Paris who can pick up the phone, call the Embassy and ask for him. If he answers the phone, then we have ascertained through our source in Paris that he is there. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. MCCLORY. Do you think if we publish your testimony here it would kill the circulation of your magazine l Mr. SCHAAP. I doubt it. Mr. McCLoRY. Now, you mentioned the book "Who's Who in the CIA" by Julius Mader as a book that did what you do now. This was back in 1968. Mr. SCHAAP. Far less accurately, I might add. Mr. McCLORY. What you neglected to mention was that the book was a product of the East Germany Government, and that the false identification in the book of a man by the name of Dan Mitrione re- sulted in his murder by terrorists. What do you know about Mader and his activities? Mr. SCHAAP. I don't know him, I know of him, and I have a copy of the book, and there are a number of inaccuracies in it. I would take issue with the description regarding Mr. Mitrione, although I don't know that that is appropriate to this committee. Mr. Mitrione received his paycheck, I understand, from AID and not from CIA, and in that sense was not a CIA employee. Several former Agency employees have mentioned in books, several other people have written books that in fact he was doing a CIA case officer's job. I really don't know that much about it. I have read books ascribing rather terrible things to Mr. Mitrione. Mr. MCCLORY. Well, if you would justify your publication based upon that and naming names as being harmless because nobody has been killed or murdered, it should suggest to you that this is very, very dangerous business and can be very, very dangerous to the in- dividuals and to the facilities of those persons whose names that you name. Mr. SCHAAP. If it were true, it could. I don't believe that it is true. At least from what I have read, vast numbers of people in Uruguay knew who Mr. Mitrione was and knew that he worked with the secret police and knew that he was involved in the securing of implements of torture and so on. Mr. MAzzoLi. The gentleman's time has expired. We want to thank you and your colleagues- Mr. BOLAND. May I just ask one question, and it arises as a result of Mr. McClory's questioning. What is your rate of accuracy in the naming names column? Mr. SCHAAP. Well, as I said, we think it is 100 percent. We try very hard to err on the side of caution and have rejected hundreds of names. Mr. BOLAND. All right, you think it is 100 percent. I think there would be considerable dispute over whether or not it is 100 percent, and if it is not 100 percent, then of course'those who have been named have been falsely accused; haven't they? Mr. SCHAAP. If we ever found out we had done that, we would print in bold type a retraction and an apology, but I really don't think we have. Mr. BOLAND. Well, I am glad to hear you say that. I think you would have some duty to those who may have been falsely labeled in the naming names column. You would think that, too. OK, thank you very much. Thank you. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. MAZZOLI. Thank you, Mr. Chairman. Thank you, Mr. Schaap and Mr. Wolf and Ms. Ray. Mr. SCHAAP. Thank you. Mr. MAZZOLr. I would invite to come forward to the witness table Mr. William Colby, formerly, of course, Director of Central Intelli- gence, now an attorney in private practice in Washington. Mr. Colby is a career intelligence officer who became the occupant of the Nation's highest intelligence post. Mr. Colby is well known to our committee and has been generous in the past with his time and his advice, and we welcome his statement on the bills before us. STATEMENT OF WILLIAM E. COLBY, REID & PREIST, FORMER DIRECTOR OF CENTRAL INTELLIGENCE Mr. CoLBY. Thank you very much, Mr. Chairman. It is a pleasure to be with you again. Mr. Chairman, American soldiers expect to face hostility, danger, and even death from an enemy. They expect the Nation which sends them into combat, however, to protect them against being shot in the back by fellow Americans. In several laws, Congress does exactly that. One is, of course, the punishment for treason for giving aid and com- fort to the enemy. A more precise one is the statute punishing anyone who, with intent to interfere with, impair or influence the loyalty, morale, or discipline of the military or naval forces advises, counsels, urges, causes or attempts to cause insubordination, disloyalty, mutiny or refusal of duty among their fellow soldiers. Congress has enacted a number of other acts to protect particular officers of the Government against assault, murder, or manslaughter. These include the President and Vice President, Members of Congress, and officers and employees of the United States. Congress has also pro- vided punishments for individuals falsely impersonating Government officers. The Supreme Court has said that the proper purpose of that act is to maintain the general good repute and dignity of Government service. Mr. Chairman, American soldiers expect to face hostility, danger danger, and possible death from hostile governments, terrorist groups, and individuals. They do this in conformity with the intelligence mis- sion assigned them, by our constitutional executive and legislative au- thorities. I hope that this mission will be clarified in the near future by the adoption of a new legislative charter, as the President has sug- gested. But the National Security Act of 1947 and subsequent annual appropriations for our intelligence services over the past 30 years con- stituted a congressional determination that intelligence was a necessary service of our American Government, and that its officers and em- ployees, and their families, and our foreign agent sources were serving the American Nation. The dangers to intelligence personnel abroad have been increased in recent years by the sensational and irresponsible exaggeration of a comparatively few incidents in the history of CIA, to give a totally false impression of the scale of its missteps and misdeeds and stimulate attention and hostility to its activities. And the vulnerability of our officers has increased as a result of inadequate official and unofficial cover, available for their protection and of unauthorized revelations Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 by erstwhile fellow intelligence officers repudiating their solemn undertaking to respect the necessary discipline of the profession. Other Americans opposed to intelligence for ideological reasons have developed a cottage industry of exposing fellow Americans. They frankly admit this dangerous action as a cynical tactic to veto Con- gress determination that the service is important to the protection of our republic. Danger is not the only threat these practices pose. The identifica- tion of our officers increases surveillance of their activities by hostile governments and political groups so that they, cannot carry out their missions. Other governments can also be politically compelled to act against their presence when their identification is trumpeted, although they would be more permissive if they could pretend ignorance. And the career potential of highly motivated, selected and trained officers can be ruined by this sort of deliberate sabotage. The personnel of our intelligence services have carried on their duties as well as they could despite those harassments and dangers. But it is far past time that the Congress should provide the necessary protection and support that the honorable men and women of intel- ligence deserve in their service abroad. The Congress has protected our military forces; it has protected our currency against counter- feiting; it punishes citizens who refuse to pay taxes out of disagree- ment with the laws enacted by our constitutional system; it even took pains to omit the identities of intelligence personnel from the pub- lished accounts of its extensive investigations in the last 5 years of past intelligence activities. It now must act a ainst those who would deliberately destroy what the Congress has determined is essential to protect our country, an effective intelligence service. An even more vulnerable group of people are the foreign and Ameri- can sources and informants of American intelligence. Many of these have responded to the increased danger in recent years by withdrawing from secret relationships or refusing to initiate them, in well justified fear that they could be exposed to retribution and reprisal for con- tributing to America's better knowledge and understanding of for- eign developments. In today's world, Mr. Chairman, we must reassure them that we have the will and the means to protect them as we would our eyes and ears. As this committee well knows, however, the present statutes of the United States are totally inadequate to provide this reasonable sup- port and protection of our officers and informants. The attempts of the executive to use contract law to control this pernicious activity have been valiant, but are obviously inadequate. It is also plainly undignified for this Congress to leave such an important obligation to the mercies of such a skimpy protective device. For these reasons, Mr. Chairman, I fully support H.R. 5615, and commend the responsibility and initiative of its sponsors, who I note with pleasure include every member of this important committee. In section 501(b), the specific intent requirement puts the activity well beyond the constitutional protections of free press, speech, and as- sembly, especially as the intent must be proved by more evidence than the mere intentional disclosure of the information or inferences de- rived therefrom, and the proscriptions are clearly necessary and rea- sonable to protect an important public function. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 This bill, Mr. Chairman, is no Official Secrets Act on the lines of British legislation. It does not even go as far as suggestions I previ- ously made to this committee, which would have included the secret techniques and sensitive technology as well as the human sources of our intelligence agencies. It does, however, take a major step forward for the protection of the individuals who serve our intelligence com- munity. This will carry out the obligation our country expressly and by implication makes to protect the identities of Americans and for- eigners who risk their lives, their families and their livelihoods to provide our country the information necessary to give it better pro- tection against the many problems in the hostile world around us. Some time ago, Mr. Chairman, I asked the Congress to give a signal to our friends around the word that we will protect the real secrets of American intelligence while we will not insist on the complete secrecy that envelopes the intelligence services of other countries. Intelligence technology has expanded our knowledge of the world immensely, but there are subiects which are not visible on the photographs or ascer- tainable by electronics. We must depend upon brave Americans and brave foreigners to provide us this material. We owe their bravery the same debt of responsibility for their safety that our country owes our soldiers when we send them into action. I have only two minor points in addition, Mr. Chairman, to submit for your consideration. The definition in section 505 (6) excludes from the category of agent, informant or source of operational assistance individuals who are citizens residing within the United States. I would suggest that a number of such individuals should be given the same protection as the same category abroad. This could be of particular importance in securing the assistance of American citizens in this country to arrange cover protection for intelligence officers abroad and conduct other activities abroad from an American base. Exposure can wreck their businesses, curtail their foreign connections and travel, and subject them to public attack for having helped their country. The definition does not exclude foreigners residing in the United States, and I believe it should not, so I find it somewhat contradictory that it excludes our citizens within the United States. If the concern is to insure that the Agency not be involved in operations within the United States actively using informants and agents here for domestic purposes, better systems of control are available in the new charter legislation than leaving these other legitimate helpers exposed in the fashion that this definition does. It would also seem appropriate to consider the addition of the Fed- eral Bureau of Investigation to the agencies listed in section 505(4). A number of their informants and agents would seem to be entitled to the same protection as we would give foreign sources. It may be that this subject will be covered in separate charter or other legisla- tion for the FBI, but I suggest that it is a subject which needs attention. Thank you very much, Mr. Chairman. Mr. MAZZOLI. Thank you very much, Mr. Colby. I appreciate your testimony. It will be very helpful to the committee, including your observations about coverage of the FBI. On page 5 you call the atten- tion of the committee to the fact that current statutes are inadequate, Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 and I think yesterday, you were not in the room, but the Department of Justice finally has gone on record, after a long, ambivalent period, of being in favor of new legislation and eschewing the position they have had up to now which is that current statutes, properly enforced, will do the job. So we will get some type of legislation from them. Mr. CoLBY. Delighted. Mr. MAzzoLI. Let me ask you to do the impossible. Let me ask you to consider yourself a publisher of Covert Action Information Bul- letin and consider yourself of the firm belief, reached upon sensitive deliberation, that the CIA in its current position ought not to exist, and that you are trying to hasten its demise. Can you conceive of doing that job without naming names ? Mr. CoLBY. Well, I think the gentleman who spoke before me, Mr. Schaap, said that out of the 32 pages that he puts out, most of which are exposures of CIA activities of one sort or another, only one or two pages name names. It seems to me that we are asking him to leave out the one or two pages. We are not telling him to stop the rest of the activity. In other words, I think yes, there are things you could do without naming names. One can publish things, one can come to this Congress and advocate the demise of the CIA, there are lots of things that are possible without naming the names.. Mr. MAZZOLI. I think the committee yesterday in many of its ques- tions indicated from various perspectives the problem-and I don't think it is a problem of being jingoistic about the United States or anything else, it is just a problem of why the individuals have to'be named in the course of pursuing the goal which may be salutary, who knows. I disagree but they may be correct in their view that the CIA should only engage in information gathering. So it is a problem that concerns us greatly, this naming of names, more so than pursuing that point of view. As a professional who has been the chief intelligence officer of the United States, and a serious student of intelligence as a professional, do you believe that the intelligence gathering capability of CIA goes forward apace if there is the naming of names going on, accurately and inaccurately? Mr. COLBY. Absolutely not, Mr. Chairman. The relationship with a secret source for the collection of sensitive information that we would not otherwise receive must be held secret, and it must be conducted secretly. Now, if the American officer involved or if the source is named, then the relationship cannot exist safely in these countries. As I said, even before I left CIA, I was aware that certain people had already indicated that they did not dare continue to work for us out of fear of exposure of their names. Now, we struggled very hard to keep names out of the investiga- tions, and I think the Congress showed responsibility in the way that it ae'reed with that position. Mr. MAZZOLL So you can say from your experience while you were with CIA that some of our sources dried up, some of the material that we could have used was unavailable as a result of the fear of somebody being named. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. COLBY. Of exposure, yes, Mr. Chairman. Mr. MnzzoLI. My time has expired, but I thank you for that state- ment, Mr. Colby. The gentleman from Massachusetts is recognized. Mr. BOLAND. I want to express my appreciation to Mr. Colby for coming here. He has assisted this committee on many occasions, and has aided us greatly in coming to particular decisions that we reach in other areas that this committee considers. I think you are the only one, Mr. Colby, that favors, within the definition of the source of operational assistance, American citizens residing in the United States. These are people who are now specifi- cally excluded from coverage in H.R. 5615, and you think it might be a wise idea to include them. That gives me a little bit of a problem. Do you think it is proper or wise to subject someone to criminal prosecution for disclosing that his college professor gives information to the CIA, or that, as happened several years ago, the National Student Association was funded by the CIA, or that the president of the Widget Corp. has a covert contract with the CIA? Mr. COLBY. Well, my position, Mr. Chairman, comes from a very intense discussion I had with a gentleman with a very large-scale busi- ness at one time in the middle of the investigations, and he was deathly afraid that his worldwide business would be destroyed-and I can assure you it would have been-if it had come out that he had been helpful to the CIA in various situations. Now, I think that that man deserves protection. We did protect him. It has not come out, and I hope it never does. But the fact is that I think if someone deliberately revealed that contact and wrecked his business, that that individual should be punished. Mr. BOLAND. Now, you also indicated that Mr. COLBY. Now, whether you would apply it to every case, I am not sure. I mean, there may be some that Mr. BOLAND. OK. One problem I have with it, I think that there would be an incredible amount of prosecutions under it. I think there would be a number of charges leveled against those who would indi- cate that so and so professor or so and so president of an institution is a member of the CIA or consults with them. Mr. COLBY. Well, if I may, Mr. Chairman, I am not so sure of that because in the first place, the first section would only refer to an individual who was entitled to that access, to that information and then revealed it. So it would not apply to the college student that made a point of it. And the second section would only apply to some- one who was deliberately trying to wreck the intelligence activities of the U.S. Government. I mean, there are all sorts of other motives that could have led to that. Now, I think we just saw a very clear example of the thoucrht process here that says that CIA is an evil institution and that CIA must be destroyed, and that the way to do it is to reveal the names. Now, I think that is a con scions thought process. Now. my problem is that the Congress had enacted that this kind of intelligence activity should continue. I can understand people being Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 against it and advocating the elimination of it. I understand paci- fists who say there shouldn't be an army. But nonetheless, I don't see that we should allow them to go and destroy the institution that the Congress has set up, and that these provisions are reasonable and necessary to protect our intelligence activities. Mr. BOLAND. Let me ask you whether or not-it was stated here several times yesterday, and Mr. Schaap indicated today that it is possible to determine the identities of CIA officers by diligent reading and legwork without ever having access to classified information or Government sources. Do you believe that 8 Mr. COLBY. A number can be identified. One is inclined to include a misidentification of other individuals among that number if one only looks from the outside, and there are some that will be concealed, that they will not identify. Now, this act would not affect this kind of an activity unless there were a deliberate intent to destroy our intelligence activities. Now, that is a matter of proof that would have to be brought before a jury and a jury convinced that that actually was the intent, to destroy our intelligence activities. Any of the other purposes Mr. BOLAND. And that would not be easy, of course. Mr. CoLBY. No, it would not be easy, and there could be all sorts of other reasons why the individual did it which would undoubtedly arise in the trial. Mr. BOLAND. Now, you made reference a few times in your statement to charter legislation which is imperceptibly but surely working its way through the Congress. Would you prefer to wait for the charter legislation or do you think we ought to deal with some of these matters piecemeal until we get the charter legislation? Mr. CoLBY. I think this matter of protecting our sources, Mr. Chair- man, is sufficiently important. It is a very important act, to give this signal around the world. Mr. BOLAND. You would favor it being considered outside. Mr. CoLBY. I would go ahead with this act and then incorporate it later. Mr. BOLAND. Thank you very much. Mr. MAZZOLI. Thank you, Mr. Chairman. The gentleman from Illinois, Mr. McClory. Mr. MCCLCRY. Thank you, Mr. Chairman, and I also want to express appreciation for your appearance here today, plus your other appear- ances, and to state as a ranking member on the temporary Select Com- mittee on Intelligence, how fully you cooperated with our committee in providing us with all of the information that was essential for our investigation. I want to state quite frankly that I think that the breach of con- fidence, the breach of trust which the committee itself, and the staff of the committee committed was egregious and that it contributed to a great deal of the harm that I think has been experienced' by the CIA. A number of these so-called exposures were not necessary for the purpose of our committee's work, and I think that the same motiva- tion that is indicated in the testimony of Mr. Schaap prevailed to Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 induce persons to expose confidential, secret information which you provided us with, that I understood we were to guard with complete secrecy. Mr. COLBY. Thank you, Mr. McClory. I must say, I have been pleased by the very clear evidence that this committee has a different frame of mind. Mr. MCCLORY. I think that the Congress itself, the House of Repre- sentatives, did support the position I am taking by burying the report so that it might never appear with any official imprimatur. We have a number of activities where we guard secrets, where we guard confidentiality, and this doesn't impair the rights and privileges we have under the first amendment. Grand jury proceedings are secret, and if you violate that secrecy, why, it is punishable. We have various other relations of confidentiality and privilege, where secrets are secret and part of our system, and it seems to me that to intend that the secrets which are involved in intelligence gathering, including the identities of persons who operate in secret, to suggest that that secrecy should not exist is inconsistent with our traditional American system. What does concern me about this legislation is an apparent will- ingness or desire on the part of some to discriminate, discriminate between agents of the CIA, for instance, and other persons in Gov- ernment to whom the secret information is disclosed, persons who are not in Government who are nevertheless privy to secret information, journalists who by one means or another secure information. Do you think we should discriminate between Americans, or do you think we should put everybody together? Mr. COLBY. Well, I think, Mr. McClory, that the legislation is an example of the selection of the practical and the possible as distinct from perhaps the ideal, and I fully subscribe to that sensible approach to it. We do have, as you say, many laws which punish Government offi- cers who reveal secrets, trade secrets, agriculture statistics and all the rest of it. There are some 20 or 30 statutes that do this. So it is not abnormal that we have this kind of punishment. I think, however, that this falls into the category of a narrowly drawn bill just to protect the sources of our intelligence overseas, and I agree that let's get this one done and let's worry about the rest of it later. Mr. MCCLORY. Would you just give me your appraisal of the con- tributions you think that CIA and other intelligence agencies have made to our country in contrast to the, to what I would regard as the relatively few abuses that are concerned? To what extent do you think that our freedom and our national security have been secured as a result of intelligence activities? Mr. COLBY. Well, the fact that we have developed-and I will iust talk about the clandestine ones, not the technology and not the scholar- ship. We have had individual reports which increase our understand- ing of the developments in foreign countries. We have had foreign officers who have given us secret information about their military activities and their military programs which has helped us in time of crisis to understand better what we are facing. This particularly happened, this kind of assistance, in the Cuban missile crisis; that Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 kind of information, clandestinely acquired, gave us a better sense of confidence that we understood what was going on and what was apt to go on. Now, this kind of intelligence is not visible from a photograph. It is not ascertainable by clipping out clippings. It is the inside fac- tions and forces at work in foreign societies which keep their affairs very secret indeed. Unless we understand those, unless we can assess better the likely dynamics of another situation through this kind of inside information, we are going to be flying blind on some of these things. Mr. MnzzoLI. The gentleman's time has expired. The gentleman from Ohio, Mr. Ashbrook. Mr. AsnBROOK. Mr. Colby, say on February 1, employee X of the CIA, is sent for what you as Director would deem to be a relevant and necessary function, under some form of cover to Egypt on assign- ment. Say on March 1 some publication, for their own reasons, pub- lished that agent's name. Now, the question is, is there any way that information can be legally obtained for publication? Mr. COLBY. Possibly, by study of some weaknesses in the cover struc- ture that-some of these weaknesses at least did exist. I don't know that they have. been improved. There have been some improvements. The State Department doesn't publish its list of officers with quite the same detail they used to. After a number of years of urging them to not do that anymore, they stopped doing it, I am glad to say.. But there are certain ways that one could possibly, from the out- side, ascertain that an individual is actually a CIA agent, whereas another agent possibly you wouldn't be able to ascertain from the out- side, you would have to get it from the inside. Mr. ASHBROOK. So it is not possible to project for us whether that information was legally obtained, accidently obtained, surreptitiously obtained, or illegally obtained. Mr. COLBY. Right. And of course, the publisher might indeed pub- lish it, having received it from somebody who himself was violating the law by illegally giving the information to him. Mr. ABHBROOK. Yes, I am not talking about his apparent right to publish information. I am talkin how it is acquired and trying to work back to that particular probg lem. Say 10 agents go out the first of February to 10 different stations, and the next month all 10 names are published. Do you have a little more reasonable Mr. COLBY. A little harder on that one. Mr. ASHBROOK [continuing]. Reasonable assumption that they had been improperly Mr. COLBY. In the first place, if it is 1 month after they arrive, then the chances are that there is some inside source. Mr. ASHBROOK. But there is no way in legislating that we can as- sume that the preponderance of evidence would indicate they had been illegally obtained? Would that be a fair assumption? Mr. COLBY. I would say that you couldn't say that the preponder- ance was either way in any single case. I think there is a chance of one and a chance of the other. Mr. ASHBROOK. Thank you. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. MAZZOLI. Thank you. Mr. Colby, one of the things that motivates this subcommittee, and I think the Congress, is the fear that by identifying undercover agents, you jeopardize them personally. Are we overplaying that? Is this an overdramatization of the fact? Mr. COLBY. I don't think so, Mr. Chairman. I think people live in a certain fear of it, and I would even say that Mr. Welch's death wasn't entirely one thing or another. There were a whole series of things that contributed to his death, including the exposure of his name, but a lot of other things also. But that is a pretty serious effect, and it has a very deterrent effect on a lot of other people who don't want to go to a dangerous assignment where there are known terrorist groups active, and then be revealed as members of the CIA. Mr. MAZZOLI. On another point, yesterday-and I hope my memory is correct-Mr. Ford Rowan, who used to be with NBC News, came in here and in a very eloquent statement said that among other reasons why he was against the bill was because you could always find some way to get out from under any of its provisions and manufacture proof that would show lack of intent. Earlier in the day, Mr. Keuch from the Department of Justice in- dicated that if the case involved a newsman, it would be extraordi- narily difficult to prove intent to harm the national security. If these people are correct in their assessment, the one, that it would be in- effective because there's a bunch of Philadelphia lawyers around, the other because they are a member of the news media, should there be a bill at all? Mr. COLBY. Well, I think the first section of the bill is absolutely vital. I have always stood for that, the discipline on the people within the intelligence and the official community who had authorized access to the information. This is just absurd that we allow them to go on and spill these things and not be subject to some punishment, in view of the many other laws we have punishing Government officers who reveal information improperly. Now, the second one, I think that it would only apply to a very few cases, that is correct, that probably the newsman could not be punished under it if he just really said it in the course of his normal journalistic activity. This is all right with me, because I agree that the freedom of the press is an important American consideration. What we are talking about is people who have made up their mind to flaunt the decision of this Congress that we need an intelligence service, and made up their mind that they are going to destroy it. Now, this is a total rejection of the authority of Congress to work out these differences in attitude among our people. Now, of course we are going to have people who are opposed to CIA. There are people opposed to the IRS these days, of course. But that does not give them a right to destroy the IRS. It does give them a right to complain about it, to urge that it be changed, to circulate literature saying the IRS is a terrible institution. That's fine, let them go ahead. But it doesn't give them a right to destroy it. And I think the same thing is true of intelligence. Mr. MAZZOLI. I thank you very much for your testimony. It is always helpful. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 The gentleman from Massachusetts. Mr. BOLAND. Let me just ask the one question. In your opinion, was Richard Welch's death caused by the printing of his name in Counter- 2 spy COLBY. I think there were four different reasons for his death, Mr. Chairman. One was the degree of sensationalism, the heightened attention to CIA, all the rhetoric, all the noise that frightened a lot of people about CIA, made it a worldwide cause, I think, improperly, quite frankly, because I agree with Mr. McClory that the abuses were few and far between, but I think that was one factor. The second factor was the focusing on the identification of indi- vidual CIA officers, in other words, bringing down that general sensa- tional approach to the personalities of our people, not with Mr. Welch himself, but just the idea of focusing on CIA people and having their identities revealed, and we went through quite a little exercise of see- ing it happen in various other places. And the third was the actual name of Mr. Welch as a known officer. And the fourth was some of the weaknesses in our cover situation, some of the weaknesses imposed by the legislation that affects it, and some of the weaknesses yielded to by CIA in desperation over not being able to get a better cover. Now, that is four reasons. I don't name just the one, and I will point out that my reaction at the time of his death was not to attack the people who published it until they published a scurrilous state- ment that tried to blame his death on CIA. That really lifted the hair off my head, and I am afraid I lost my temper and denounced that kind of cynical exploitation of the death of an American officer. Mr. BOLAND. Your statement with respect to cover is instructive. Cover really isn't adequate enough, is it, in the foreign embassies? Mr. COLBY. It is terrible. I hope it has been improved since I left, Mr. Chairman, but I don't know. I will just speak as when I left- it was terrible. Mr. BOLAND. Can we blame the State Department for that? Mr. COLBY. No, we can't blame the State Department, we have to blame lots of people. We can blame the fact that the American Gov- ernment, in its own deliberations, and the Congress, has excluded CIA from a whole lot of official covers. We send officers abroad, but we say they can't be-we did say, I don't know whether they do now-- they can't be in the USICA, International Communications Agency, they can't be in the AID anymore, they can't be in the Peace Corps, they can't be in various other areas. Now, as a result of those agencies attitudes and that of Congress- congressional pressure produced the AID bar, there are only a few areas where we have good cover. The State Department, we cannot use certain kinds of nominations, and therefore that is a further ex- clusion. You boil it down, and there are very few things that you can use, and then it become pretty easy to identify. Now, we have got to open up the possibilities at least within the Government. Now, we also have the general restrictious-thou shalt not use the press, thou shalt not use various other private areas, and everybody would like to get on that bandwagon and exclude CIA from them, and then there would be no unofficial cover either. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. BOLAND. Is the personnel within the intelligence community overseas initialled FSR all the time? Mr. COLBY. Not all the time, no, Mr. Chairman. Mr. BOLAND. OK. That would be-if that were so, of course, that would be relatively simple. Mr. COLBY. Well, there are other people who are FSR, too, and that is what leads to the misidentification of some non-CIA people as CIA. Mr. BOLAND. I see. Mr. Colby, thank you very much for your appearance. Mr. COLBY. Thank you very much, Mr. Chairman. Mr. MAZZOLI. Thank you very much. The gentleman from Illinois, Mr McClory. Mr. MCCLORY. I will just ask a couple of questions. As far as you know, do the KGB or other foreign intelligence agen- cies, do they restrict their personnel operating under cover to exclude athletes or dancers or scientists or embassy personnel or consular of- ficers or military attaches or anybody at all-journalists? Mr. COLBY. They certainly do not. There is sometimes a nonathletic athlete that shows up. There are some others that appear among their teams, among their groups. Mr MCCLORY. You may have answered this, but there is pending, of course, so-called charter legislation which it seems to me perhaps imposes more restraints than it does opportunities for liberation of the CIA and other intelligence agencies. Do you not feel that if we could amend the Freedom of Information Act to exclude the foreign agents from having access to secret informa- tion and amend the Hughes-Ryan Act so that the agencies don't have to report to 180 Members of Congress plus the staffs, and if we en- acted this legislation which now I understand is top priority with the majority leader of the House of Representatives, we would be better off to move on these three things, wouldn't we, and leave charter for later consideration. Mr. COLBY. Well, I certainly think that this bill that you have be- fore you now is the most important, quite frankly. Second, I would say that also important is the Hughes-Ryan thing. This is absurd. I mean, we cannot conduct that kind of operation under those provisions. The Freedom of Information Act is certainly a desirable step to take. In other words, the bill submitted by Senator Moynihan, Senator Nunn and the others I think is very appropriate and quite appropriate. I would like to see a new charter. I would like to have seen it a year or two ago. I think it was hung up between those who would like to go back to the old days and those who really want to festoon every kind of restraint on intelligence possible. I think we need to come to that American compromise and consensus which will reflect what in- telligence should be doing today, so that the people in intelligence have a clear line and they can go back to work and not debate what they should be doing anymore. Mr. MCCLORY. In a sense, translate into statutory form what is in the guidelines now. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. COLBY. Right, yes, essentially. There will be some changes., and I am sure I would not be satisfied with the final result, but it will be an American consensus, and I think an important new one. Mr. MCCLORY. Well, these amendments in the FOIA, Hughes-Ryan and identities of agents legislation would enable us to at least partially fulfill what I would interpret as President Carter's new determina- tion to revitalize the intelligence capabilities. Mr. COLBY. I think so, yes, Mr. McClory, and you do also have the restrictions in the executive orders which will insure that the Agency stays within its proper limits in the interim. But I do think that that would be well put into legislative form rather than just Presidential form. Mr. MCCLORY. Thank you very much. Mr. MAzzoLi. The gentleman has time. Would he yield it to me? Mr. McCLORY. Surely. Mr. MAZZOLL Thank you. The gentleman brought up the point that the KGB doesn't elimi- nate any category for cover, so I think if we find a slightly clumsy, overweight skier at Lake Placid next month we might be a little bit worried that maybe they have other than skiing triumphs on their mind. Mr. COLBY. They are trying to train a few ballet dancers, too. Mr. MAZZOLi. A slightly overweight ballet dancer. Let me ask you this question. Some of our witnesses in the last day or so have mentioned that in truth, it is fairly common that in foreign embassies, certain. people are CIA, known to maybe even the press abroad. Let's accept that that is true. It may or may not be in each case true, but let's accept that it might be true. Do you still see danger that would accrue and come from an official revealing of their names or an attempt by a Covert Action Bulletin to name these people? Mr. COLBY. Well, I think it is a problem, in our relationships with a foreign country. There are, as you say, a number of these areas where our senior officers, particularly, usually not the junior ones but the senior ones, are known to the local intelligence services and they deal with them. They are known around the Embassy itself, our Embassy, among the other Americans, and there is maybe too much chatter about them, too. I think the answer is if you had an official statement of their CIA identity, it would give the local government a considerable strain. If you had an unofficial revelation of their identity which could not really be contested, such as by a private group, then you can put pressures on that government equally because the opposition groups in that country will focus on it, will raise a hue and cry as to what this agency is doing in their country. They would have a tool with which they can attack their own government and attack ours which they would not have in the absence of that, even though they may be known to various people, but they just wouldn't have the Political tool for that particular purpose. And that is affecting not the safety of the individual so much, although it could, but it really is affecting our ability to carry out the intelligence mission that the Congress has decreed that we should carry out. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Mr. MCCLORY. I ask unanimous consent to proceed for an additional 2 minutes, and I yield to the gentleman. Mr. MAZZOLI. Thank you. I appreciate that. We are getting very, very formal here, but I do think it helps the committee function better. There is one problem that troubles all of us, and that concerns disclosures made from publicly available sources. As a person who has examined this from inside as well as outside, do you think there could be problems, perhaps unrelated to personal safety but related to the completion of the intelligence mission, if this information were revealed unofficially or certainly by our Government? Mr. CoLBY. And let's face it, Mr. Chairman, you also have a jury to go through, and if you have an outrageous case, you are not going to get through the jury. I mean, that is an automatic protection, of course. And second, the standard of specific intent has to be there, and if anyone else reveals the name, and the violation of the agree- ment has to be there under the first section. So there are these addi- tional obstacles to an arbitrary enforcement of that particular statute. Mr. MAZZOLL Well, let me again thank the gentleman for his appear- ance today, and again, you have been very helpful. All of our wit- nesses today have been very helpful to the committee. Senator Bentsen was scheduled to be here today as one of the au- thors of one of the several bills before us, but the Senator was de- tained. When his statement is obtained, without objection, the com- mittee will receive it, and the subcommittee stands adjourned. (See appendix C.) [Whereupon, at 11:01 a.m., the subcommittee recessed subject to the call of the Chair.] U.S. DEPARTMENT OF JUSTICE, OFFICE OF THE DEPUTY ATTORNEY GENERAL, Washington, D.C., June 18, 1980. Hon. MOROAN F. MURPHY, Chairman, Subcommittee on Legislation, Permanent Select Committee on Intelli- gence, House of Representatives, Washington, D.C. DEAR MR. CHAIRMAN : When I testified before your Subcommittee concerning the proposals that had been made for a new criminal statute protecting the identi- ties of intelligence officers, agents, and sources, I was asked to respond in writ- ing to some legal questions that were raised by members of the Committee during the course of my testimony. The central question concerns the constitutionality of the proposal set forth in ? 501(b) of H.k. 5615. Section 501(b) would make it an offense for anyone to disclose information identifying a covert intelligence officer, agent, or sourceeven where the information is assembled from the public rec- ord-if the identity is "classified" at the time of the disclosure and the disclosure is made with an intent to impair or impede the foreign intelligence activities of the United States. At the hearing I expressed concern that this proposal might chill constitutionally protected speech ; and I noted that the Department of Jus- tice favored a different approach. I was asked by several members of the Com- mittee whether, in our view, ? 501(b) is constitutional or not. This is a difficult question. Permit me to answer it as briefly and as simply as possible. 1. A first principle of adjudication under the First Amendment is that speech cannot be punished unless it creates a danger that the Government is entitled to Prevent. See Schenck v. United States, 249 U.S. 47 (1919) : Dcbs v. United States, 249 U.S 211 (1919) I think it clear that there are circumstances in which publi- cation of the identity of an intelligence officer, agent. or source can create a dan- ger that will justify criminal prosecution of the publisher under the Constitution. At the same time, I think it clear that in some other circumstances, for instance, Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 where publication will create no new danger because the identity is already fully known to the world, a criminal prosecution of the publisher would be pointless and questionably constitutional. In short, a naked prohibition against publication of intelligence identities can have both constitutional and unconstitutional appli- cations. The lawmaker's task is to find legislative language that will confine the prohibition to the cases in which prosecution can constitutionally proceed and will exclude prosecution in the cases in which it cannot. We are obliged of course to track the Constitution in any legislative endeavor. but we must proceed with special caution where First Amendment values are at stake. An error here can doom the entire enterprise. Under the First Amendment the viability of a criminal statute does not depend entirely upon how it applies in a particular case. Even if the conduct that the Government seeks to punish in a particular case is not protected by the First Amendment, the court may ask whether the statute is drafted so broadly that it could be applied in other cases to reach protected speech and because of that "overbreadth" perhaps chill pro- tected speech. If the court so finds, it may hold the statute void for overbreadth. In other words, the possibility of an unconstitutional application may taint the statute and prevent its use even in those cases where under a more narrowly drawn statute the conduct of the defendant might be constitutionally punished. While the doctrine of overbreadth is apparently now undergoing some metamor- phosis, and under the current approach taken by the Supreme Court may not carry the force it once had, See Broadrick v. Oklahoma, 413 U.S. 601 (1973), it still is a doctrine of caution which we must observe. In my view, ? 501(b) has the potential for constitutional and unconstitutional applications. Given the current uncertainty regarding the overbreadth doctrine, I simply do not know whether a court would find this measure so "substantially overbroad" as to be unsuitable as a vehicle for prosecution in any and every case ; but I would respectfully submit that there are other approaches that more clearly fall on the safe side of the constitutional mark. Let me compare the approach taken in ? 501(b) to the approach taken in ? 801 (a) of the Department of Justice proposal. These two proposals overlap at a num- ber of points. The main difference between them lies in the burdens they impose on the prosecution. Whereas ? 501(b) makes the intention of the publisher the decisive criterion of criminal liability, ? 801 (a) focuses on the source of the infor- mation in question. Section 501(b) requires the Government to prove that the publisher intended to impair or impede the intelligence activities of the United States. Section 801(a) requires the Government to prove that the publication was based on direct or indirect access to classified information, that is, access to "in- side" sources of information protected by the system the Government uses to safeguard highly sensitive information in the field of foreign and military affairs. These two criteria-the intention of the publisher and the source of the in- formation published-are very different, and they have a different bearing upon the central constitutional question presented by any outright prohibition against public speech : What danger does the speech create? It may be, as Justice Holmes once suggested, that if a speaker intends to produce harm, his intention may it- self increase the risk that the harm will occur ; but the Supreme Court has since taught that all the circumstances of the case must be taken into account before the actual danger of speech can be assessed for First Amendment purposes. Speech may be innocuous in fact-it may have no actual tendency to create a danger the Government is entitled to prevent-even though the predilections of the Speaker are of a different character. See Brandenburg v. Ohio. 395 U.S. 444 (1969). This is why the question of the source of information can be important. If the Government proves that a publication of intelligence identities was based on sen- sitive "inside" information, it may be rather clear that the publication was harm- ful in itself. By making the classified information available to others, the publication can bring to pass the very danger the security system was designed to prevent. On the other hand, if the publication was based, not on inside infor- mation, but on information generated by research in publicly available sources, it may be far less clear that the publisher has informed our foreign rivals of any- thing they did not already know, even though the publisher's intentions or pred- ilections may have been less than honorable. The source of the publication is, in this situation, more directly relevant to the central constitutional concern of showing harm than is the intention of the publisher. The second difference between the two approaches falls somewhere in the range between policy and constitutional doctrine, and is the one I stressed in my oral Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 testimony. If the Government is required to focus upon the intention of the pub- lisher in order to obtain a conviction, the temptation will be strong to rely upon evidence of his views and opinions regarding foreign policy in general and intel- ligence activities in particular. The problem is that much of this evidence could involve constitutionally protected expression ; people are entitled to express oppo- sition to the operations of our Government and to express their views vigorously and openly in public. If a ? 501(b)-type prohibition on disclosures by private per- sons from publicly-available sources is too broad to pass constitutional muster without an intent requirement, the addition of an intent requirement that draws mainly on constitutionally protected expressions of views may not help greatly in defending against a constitutional attack based on overbreadth. H. Congressman Fowler asked that I comment on Mr. Floyd Abrams' testimony concerning the constitutional question presented by ? 501(b). Mr. Abrams ex- pressed the view that ? 501(b) is "flatly and facially unconstitutional." As I have already said, I believe that ? 501(b) could have unconstitutional applications, but because of present uncertainty regarding the "overbreadth" doctrine, I am sim- ply unable to predict whether a court would find the statute so "substantially overbroad" as to have no legal force whatever in any of the cases in which it might apply. I am not sure I know the precise reason for the difference between Mr. Abrams' views and my own, but the difference may involve a very fundamental point. At places in his testimony Mr. Abrams takes the position that even though the United States may have power under the Constitution to punish a government employee who discloses intelligence identities, there is no case whatever in which it has power to punish third parties (newsmen, in particular) who receive infor- mation about intelligence identities from government employees and publish it. I disagree. The First Amendment is not "an absolute." There are dangers that can justify restrictive governmental action even where private speech is involved. 'see Debs v. United States, supra; and as I have said, in the field of foreign and military affairs the publication of some kinds of sensitive information can pre- sent such a danger. While the previous success of the Government in maintaining the secrecy of particular information can be highly relevant in proving that pub- lication of the information will cause harm, I think it clear that the danger presented by the publication of a defense secret does not evaporate as a matter of law simply because the information is transmitted prior to publication from one person who is employed by the Government to another (the publisher) who is not. In my view, the rather clear implication of the opinions of a majority of the Justices in the Pentagon Papers case, New York Times v. United States, 403 U.S. 713 (1971), is that the Constitution does permit the Government to proceed in a proper case under a properly drafted criminal statute against a private pub- lisher of defense secrets. Indeed, the proposal set forth in ? 801(a) of the Depa rt. ment of Justice bill is founded upon that proposition. III. During the course of my testimony Congressman McClory asked about my criticism of the "reason to know" language contained in ? 501(a) of H.R. 5615. I asked that I be permitted to respond to his remark in writing. My criticism of the "reason to know" language was and is based on a policy consideration, not upon a point of law. Section 501(a) is broad enough to pro- hibit even disclosures of indirect identifying information obtained from public sources, so long as cumulatively the information has the effect of identifying an intelligence officer, agent, or source. With such breadth of coverage under the statute, I believe that as a matter of policy, grading as a felony is appropriate only where the defendant actually knew the identifying effect his disclosure would have. IV. Section 801(a) of the Department of Justice proposal prohibits the disclosure of intelligence identities where disclosure is "based on classified information." Congressman Fowler asked how we construe that phrase. The phrase is not intended to describe any particular form of disclosure. It is intended instead to focus the inquiry on the question of where the defendant ob- tained the information he disclosed. Read in conjunction with the scienter re- quirement regarding the source of the disclosure is intended to make the liability Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 of the defendant turn upon (1) his knowledge that the Government has attempted to prevent the disclosure of the information in question through the established classification system, and (2) his knowledge that his disclosure will transmit the information from an inside source to unauthorized persons. That sort of transaction could occur in a number of different ways. V. Finally, Congressman Fowler asked whether ? 501(b )'s scienter requirement is similar to the provision of the Atomic Energy Act governing communication of atomic energy "Restricted Data". See 42 U.S.C. ? 2274. Mr. Fowler's particular concern was whether, in prosecutions under ? 2274, the Government has encoun- tered any difficulties of the kind that I described in my criticism of the scienter requirement set forth in ? 501(b). Section 2274 punishes the communication of Restricted Data where the communication is made with intent to, or with reason to believe the data will be utilized to, "injure the United States or ... secure an advantage to any foreign nation". H.R. 5615 would punish the publication of any information revealing intelligence identities where the defendant intends the publication to "impair or impede the intelligence activities of the United States." The Government may have to show the defendant's actual knowledge of, or at least reckless disregard of, the restricted nature of the data under ? 2274, whereas the Government need only show negligent disregard of the identifying impact of disclosed information under ? 2274. The scienter requirements are thus both similar and dissimilar. But in any event, we have had very little experience with criminal prosecutions under ? 2274. Our limited experience does not shed much light on the kinds of problems we would encounter in prosecutions under the standard set forth in ? 501(b) . If the Committee has additional questions regarding the Department's views on these important issues, I will be happy to respond to them. ROBERT L. KEucH, Associate Deputy Attorney General. APPENDIX B FLOYD ABRAMs, New York, N.Y., February 6,1980. Hon. ROMANO L. MAZZOLI, M.C., Acting Chairman, U.S. House of Representatives, Permanent Select Committee on Intelligence, Washington, D.C. DEAR REPRESENTATIVE MAZZOLI: During the course of my testimony on Janu- ary 30, 1980, I was asked by Chairman Boland to comment on the draft legis-? lation furnished earlier that day by the Department of Justice and asked, as well, by Representative Young for my views as to what type of legislation barring the identification of intelligence officers would be constitutional. I write for the purpose of responding to those questions and supplementing my testimony with respect to a few additional areas as to which questions were asked. Any legislation in this area burdens, at least to some extent, freedom of ex- pression ; it thus raises significant constitutional questions. The burden is least substantial and a determination of constitutionality most likely when two prin- ciples are borne in mind. The first is that legislation making criminal disclosure of information by agents or former agents themselves is far more constitutionally defensible than is legislation which makes criminal the publication by third parties of information obtained by them. An example I cited in response to a question by one member of the Committee is one that I still believe is appro- priate : it is one thing to say that disclosures by Mr. Agee which are proved to be based upon information learned by him during the course of his service with the CIA may, under some circumstances, be deemed criminal ; it is quite another to say that after Mr. Agee makes his disclosures, the New York Times or the Washington Post could be held liable for, in essence, republishing that which Mr. Agee has already disclosed. The second guiding principle I would urge upon the Committee is that the narrower the definition of the information which may not be disclosed, the more likely it is that a statute containing such a definition would be held constitutional. By way of example, a fiat ban on the disclosure of any information which could lead to the disclosure of any CIA employee regardless of what that employee may do or have done is far less likely to pass constitutional muster than is a definition limited in scope so as to bar only information about CIA operatives who use aliases or the like. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 With these background principles in mind, I offer the following thoughts on the questions put to me by Chairman Boland and Representative Young : First, the single piece of legislation that has thus far been introduced which comes closest, in my view, to being constitutional is H.R. 3357. That is so because of the deliberately limited scope of the legislation : it would make criminal the disclosure of information identifying CIA agents by those who are or have "been in authorized possession or control" of such information ; it would not bar disclosure of any information by individuals not in authorized possession of the information. However, even H.R. 3357 raises certain serious constitutional problems. For one thing, the information the disclosure of which is prohibited is not limited to information which identifies an agent, but also includes information "which can lead to the identification of" an agent. Such breadth of language may sweep in so much information as to raise significant constitutional doubts on this ground alone. Second, H.R. 3357 contains no limita- tion as to which employees or agents of the CIA may not be disclosed, let alone which people who have been "associated" with the CIA may not be disclosed. Here again, the failure to limit the categories of employees or agents itself raises constitutional doubts as to the validity of the legislation. Third, as my testimony urged, it seems to me important that any legislation contain some form of "whistle blowing" defense, in situations in which the agent who is identified is committing crimes under United States law. While I cannot advise you that such a defense is constitutionally required, my own view is that the failure to permit some form of defense of this sort (at least in circumstances in which the agent whose identity has been disclosed has committed grievous crimes under our law) would make the legislation far less desirable than would otherwise be the case. As for the legislation urged upon the Committee by the Department of Jus- tice, I start with the general comment that it is, in some respects, more likely to be held constitutional than H.R. 5615, but far less likely to be deemed lawful than H.R. 3357-particularly with changes such as I have suggested above. The Department of Justice draft does contain one significant improvement over H.R. 3357. It defines the term "covert agent" in an extremely narrow fashion so as to limit the disclosures which may not be made to the identification of any present or former officer, employee, or source of an intelligence agency of a member of the Armed Forces assigned to duty with an intelligence agency (i) whose present or former relationship with the intelligence agency is pro- tected by the maintenance of a cover or alias identity, or, in the case of a source, is protected by the use of a clandestine means of communication or meeting to conceal the relationship and (ii) who is serving outside the United States or has within the last five years served outside the United States." . I consider this denflition a signal improvement over that contained in H.R. 5615 and, of course, over the failure of H.R. 3357 to contain any definition at all. Its addition to a bill based upon H.R. 3357 would be extremely constructive. However, the Department of Justice draft is flawed in other ways that I believe are irredeemable. Preliminary, it is inexplicable to me why the Depart- ment has chosen to urge that the penalties to be imposed upon those who disclose intelligence identities who are not government employees should be twice as severe as those imposed on those who are government employees. The Depart- ment's bill would thus fine an outsider up to $50,000 and imprison the outsider for not more than 10 years for disclosure of the identity of a covert agent. while imposing penalties of up to $25.000 and a prison term of not more than 5 years for government employees. Entirely apart from my view, expressed above and in my testimony, that penalties imposed upon outsiders are far less likely to be constitutional than those imposed upon government employees, it is simply out- landish to seek to punish outsiders with greater severity than government em- ployees who breach their obligations. That aside, I wish to repeat my general objection to Section 801 of the De- partment's draft on the ground, testified to by me, that third party liability for disclosures of this sort should not, in my view, be made illegal. It is one thing. I think, to impose particular obligations upon agents and others in government employ arising out of their government service: it is quite another to sweep in the rest of the world and make criminal their disclosure of information which may. in fact, have already been widely disseminated. Additionally. I wish to repeat my objection to the effort of the Department of Justice, in Mr. Beach's language. to " make it crystal clear that publication in a newspaper or book is as much prohibited as any other form of communication". (Testimony, p. 3). It is my view that such publication should not be made illegal and that, indeed, Congress has frequently considered precisely such efforts and Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 rejected them. In that respect, I am annexing to this letter pages 39 through 57 of the brief filed on behalf of The New York Times Company in the United States Supreme Court in the Pentagon Papers case. In those pages, we surveyed prior legislation which had been proposed to Congress and rejected by it that would, indeed, have made criminal the publication of certain materials by newspapers, books or the like. Although the issue is still not free from doubt given the fact that Justices Douglas and White disagreed on the point in their Supreme Court opinions in the Pentagon Papers case (403 U.S. 713, 720-722 (Douglas, J., con- curring), 403 U.S. 737-740 & n. 9 (White, J., concurring) ), I would strongly urge upon you that the Department should not be permitted to use this legislation to import into law so questionable and troubling a concept. Finally, I would like to furnish to the Committee the pages from the book, "The Invisible Government" by Messrs. Wise and Ross relating to the American Pilot, Allen E. Pope, who was shot down in Indonesia, to which my January 30 testimony referred. As you may recall, I urged upon you that the publication of such material was unexceptionable-in that it would plainly do no harm ; and that, in fact, it was useful in that it permitted the authors fully and accu- rately to describe the events about which the book revolved. I believe the Com- mittee will agree with me upon having the opportunity to read the relevant pages from the book, and I therefore append them to this letter. One again, I want to advise the Committee what a genuine pleasure it was to have appeared before it and to have participated in the process by which the Committee formulates law on a matter of such overriding import to the Ameri- can people. If I can be of any further assistance, I would be most honored to do so. Respectfully, (ANNEX TO ABRAMS LETTER) III. ON THE FACTS OF THIS CASE, THE GOVERNMENT CANNOT PREVAIL WITHOUT A STATUTORY BASIS. NONE EXISTS Since we have concluded that the Government's generalized claim to inherent Presidential authority as the source of an injuction in this case cannot stand, we maintain that on the facts, as found by Judge Gurfein in the District Court in our case, and on a fuller record by two courts in the Washington Post case, the Government's complaint must be dismissed without further inquiry, unless some statutory basis can be found for it. Our contention would be that no statute could constitutionally result in the issuance of an injuction in this case, but with- out conceding that point, the argument in this section is that no statutory basis for the action exists. We have surveyed all statutory provisions which might, by their terms, pro- hibit the dissemination (to use the broadest term) of sensitive government infor- mation. The only statutory provision which is not, on its face, conclusively inapplicable in this case is 18 U.S.C. ? 793 (e).' 1 Congress has enacted other statutory provisions to prohibit and punish the dissemi? nation of information, the disclosure of which it thought sufficiently imperilled national security to warrant that result. These include 42 U.S.C. ?? 2161 through 2166 relating to the authority of the Atomic Energy Commission to classify and declassify "Restricted Data" ["Restricted Data" is a term of art employed uniquely by the Atomic Energy Act]. Specifically, 42 U.S.C. ? 2162 authorizes the Atomic Energy Commission to classify certain information. 42 U.S.C. ? 2274, subsection (a) provides penalties for a person who "com- municates, transmits, or discloses . with intent to injure the United States or an intent to secure an advantage to any foreign nation. "Restricted Data." Subsection (b) of ? 2274 provides lesser penalties for one who "communicates, transmits. or discloses" such information "with reason to believe such data will be utilized to injure the United States or to secure an advantage to any foreign nation.. " Other sections of Title 42 of the U.S.C. dealing with atomic energy prohibit and punish acquisition, removal, concealment, tampering with, alteration, mutilation, or destruction of documents incorporating "Restricted Data" and provide penalties for em- ployees and former employees of the Atomic Energy Commission, the armed services, contractors and licensees of the Atomic Energy Commission. 42 U.S.C. ?? 2276. 2277. Title 50 U.S.C. Appendix ? 781 (part of the National Defense Act of 1941, as amended. 55 Stat. 236) prohibits the making of any sketch or other representation of military installations or any military equipment located on any military installation, as specified : and indeed Congress in the National Defense Act conferred jurisdiction on federal district courts over civil actions "to enjoin any violation" thereof. 50 U.S.C. App. ? 1152. 50 U.S.C. ? 783(h) makes it unlawful for any officers or employees of the United States or any corporation which is owned by the United States to communicate material which has been "classified" by the President to any person whom that governmental employee knows or has reason to believe is an agent or representative of any foreign government or any communist organization. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Although it briefly attempted to rest on 18 U.S.C. ? 793(d), the government. having abandoned that false reliance, has cited us to no statute other than 18 U.S.C. ? 793(e). There is a faint contention that the Freedom of Information Act, U.S.C. ? 552, has some relevance to the case in that it offered a way to the New York Times to seek the declassification of the documents in question in this case, and then to acquire access to them. This contention must rest on the theory that the Freedom of Information Act was intended to provide-for the press as well as for private individuals-an exclusive avenue toward obtaining govern- ment information. Such a theory is palpably erroneous. Nothing is clearer about the Freedom of Information Act than that it was meant to open further avenues to obtaining information from the government, not to foreclose any existing ones. If, therefore, the New York Times was entitled under the Constitu- tion and laws to publish the documents published in this case, obtained as they were, then the other, slower and more laborious route perhaps opened up by the Freedom of Information Act is irrelevant. If, on the other hand, consistently with the Constitution of the United States, it was unlawful for the New York Times to obtain and publish the documents in question in this case, then the Freedom of Information Act is equally irrelevant ; it could not have helped. 18 U.S.C. ? 793(e), the only statute whose possible application in this case so much as needs to be discussed, must be approached, of course, in light of the special requirements of clarity and precision which obtain when First Amend- ment rights are in play. United States v. Rumely, 345 U.S. 41 (1953) ; Watkins v. United States, 354 U.S. 178 (1957) ; Kent v. Dulles, 357 U.S. 116 (1958) ; Aptheker v. Secretary of State, 378 U.S. 500 (1964) ; Gojack v. United States, 384 U.S. 702 (1966). "The tradition of English-speaking freedom has depended in no small part upon the merely procedural requirement that the state point with exactness to just that conduct which violates the law." Masses Publishing Co. v. Patten, 244 Fed. 535 (S.D.N.Y. 1917) (L. Hand, J.), rev'd on other grounds, 246 Fed. 24 (2d Cir. 1917).' 18 U.S.C. ? 793(e) read as follows: "(e) Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which in- formation has possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communi- cates, delivers, transmits or causes to be communicated, delivered, or trans- mitted, or attempts to communicate, deliver, transmit or causes to be com- municated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it ;" Judge Gurfein in dismissing the government's prayer in the District Court in this case, held 18 U.S.C. ? 793(e) inapplicable. He relied, in part, on the notable absence of the work "publish" "A careful reading of the section," wrote Judge Gurfein, "would indicate that this is truly an espionage section where what is prohibited is the secret or clandestine communication to a person not entitled to receive it .. . Naturally enough, we have not found, and the government has not cited, any case beyond a single civil action'-not a prosecution or in any way an action initiated by the government-in which ? 793 or its companion sections of the Espionage Act have been applied to anything but an ordinary espionage situa- tion' 218 U.S.C. ? 793(e), moreover, is a criminal statute. Its construction in this extraor- dinary civil action can hardly be different from the construction which would be given it if it were used to achieve its prime end, namely, imposition of the criminal sanction. Criminal statutes also receive close and narrow readings. United States v. Sullivan, 332 U.S. 689 (1948) : Winters v. New York. 333 U.S. 507 (1948) : Lanzetta v. New Jersey, 306 U.S. 451 (1939) ; Connally v. General Construction Co.. 269 U.S. 385 (1926). 'Dubin v. United States, 289 F.2d 651 (Ct. of Claims 1961) (a civil action brought by a private citizen to recover the fair market value of ra"ar eruipme"t purchased as "surplus" which the Government reclaimed under an assertion that said devices were "classified" and mistakenly sold for sur"lus. ) * See Garin v. United States. 312 U.S. 19 (1941) ; Boeckenhaupt v. U.S.. 392 F.2d 24 (4th Cir.), cert. denied, 393 U.S. 896 (1968) ; U.S. v. Rosenberg. 191) F.2d 582 (2d 1952) cert. denied, 344 U.S. 838 (1952) (Stay by Douglas T. vacated. 346 U.S. 273 (1953) : U.S. v. Drummond, supra, and U.S. v. Butenko, 384 F.2d 554 (3rd Cir. 1967), vacated sub. nom. Alderman v. U.S., 165 (1969). Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 The scheme of the Espionage Act as a whole and its legislative history both confirm Judge Gurfein's determination that publishing was not meant to be covered by Section 793(e).' The strikiug fact is, as Judge Gurfein pointed out, that when Congress wanted to procribe the act of publishing as well as com- municating, delivering or transmitting, it knew how to do so and insisted on doing it with precision. Thus, when Congress dealt in Section 794 with the highly dangerous act of revealing to the enemy, in war time, information on troop movements and dispositions, on ships, aircraft and war materials, on opera- tions, plans, fortifications and other [which would be construed to mean simi- lar] information relating to public defense, Congress spoke of whoever, in time of war, "collects, records, publishes, or communicates." (Italic supplied) Again, when in Section 797 Congress dealt with special miltary and naval installations so denominated by the President, Congress spoke of "whoever reproduces, pub- lishes, sells, or gives away any photograph, sketch, picture," etc. (Italic sup- plied) Finally, when in Section 798 Congress defined and listed, and then punished the disclosure of, four categories of classified information, having to do with codes and cryptography, it spoke of whoever "knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an un- authorized person, or publishes...." (Italic supplied) In the scheme of the Espionage Act, the terms communicating, furnishing, making available, transmitting and, on the rare occasions when it appears. publishing. are used with care. When Congress wished to cover the latter, it named it. And under a Constitution that includes a First Amendment, which in turn places the act of publishing to the people in a specially protected cate- gory, it is natural for a legislative body to make nice distinctions between words (e.g. communicate, transmit) aptly characterizing the ordinary espionage trans- action, and the term which describes the activities of those who issue to the public its daily newspapers, its books, and, by extension. its radio and TV broadcasts. And it is doubly natural, given the First Amendment, for Congress to have used the word "publish" sparingly, and only when it thought it crucial. All this the legislative history noted by Judge Gurfein amply demonstrates. In the extended debates in the first session of the 65th Congress in 1917 on the predecessor espionage act to present Sections 793 and 794 of Title 18 U.S.C., both the House bill (H.R. 291), which ultimately was enacted as Sections 31, 32, 34 and 36 of Title 50 U.S.C.,' and the parallel (but more broadly drawn) Senate Bill (S. 2), contained provisions empowering the President in time of war or threat of war to directly prohibit by proclamation the publication of inf. rmation relating to national defense which might be useful to the enemy. The provision in H.R. 291 was as follows : "SEc. 4. During any national emergency resulting from a war to which the United States is a party, or from threat of such a war, the President may, by proclamation, prohibit the publishing or communicating of. or the attempting to publish or communicate any information relating to the national defense which, in his judgment, is of such character that it is or might be useful to the enemy. Whoever violates any such prohibition shall be punished by a fine of not more than $10.000 or by imprisonment for not more than 10 years, or both : Provided, That nothing in this section shall be construed to limit or restrict any discussion, comment, or criticism of the acts or policies of the Government or its representatives or the publication of the same." (55 Cong. Rec. 1763) E This is not to say that, as 18 U.S.C. ? 1717 assumes, it is not possible for a newspaper to violate other subsections of Section 793 in the some fashion as on individual or an entity of any sort is capable of violating Section 793. Thus presumably if a newspaper violates subsection (b) of Section 793 by taking or copying a photograph or a map, or an appliance. or indeed a document connected with the national defense, for the purpose nformation to belie reason t It and abo e that the is tothe ain usedito the injury ofuthe UnitedwitStatesh It can then becomeva publicationfu der i18 news- similar effect violation viola a subsection (c) ofsS ctiono793^Butithe consequences parer could with which would only be that it becomes nonmailable. 18 U.S.C. 11717 is drawn from Title 12 of the original Espionage Act of 1917. As we shall see, infra. Congress at that time ex- plicitly rejected a proposal for censorship of newspapers on the ground that it would he unconstitutional. Congress at the time believed, however, that it could consistently with the First Amendment exclude newsnapers from the malls. and that was what Congress did. Section 1717 and its legislative history further confirm the inapplicability of 18 U.S.C. ? 793 (e) as a source of authority to censor. " As Judge Gurfein stated : "The government does not contend. nor do the facts indicate, 17981 the type of classified that the publication specifically of prothe dociiments In question hibited by the Congress [in IS would disclose Information 7 Act of June 15, 1917, ch. 30, Title I. 111, 2, 4, 8, 40 Stat. 217, 218, 219. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Since war had already been declared on Germany, Congress was under great pressure to grant whatever emergency powers the executive requested. Yet Congress resisted the censorship proposal. Senator Ashurst of Arizona, among others. spoke at length, and with present relevance, on the question of censor- ship, even if his more general First Amendment views have a somewhat quaint sound to our ears : "Mr. AsnuasT. Mr. President, I have submitted an amendment of Chapter II of the pending bill because I am unable to support that chapter in its present form. I am opposed to a censorship of the press as we have come to know that expression, and I oppose it on two grounds-upon the ground of public policy and upon the ground of constitutionality. I shall discuss the present chapter, reviewing both aspects of the same as they present themselves to me; that is, from the standpoint of public policy and from the standpoint of its constitutionality. . "What does 'freedom of the press' mean? It is amazing to note the amount of loose talk-not in the Senate, but throughout the country and in the news- papers themselves-as to what is 'freedom of the press' as used in the Con- stitution of the United States. The average citizen of this Republic, the ordinary publisher in our country who is not a lawyer, thinks that `freedom of the press' means the right to publish his sentiments just as he pleases. In a large sense, that may be true; but in a legalistic sense, and from a constitutional standpoint, that is not entirely accurate. `Freedom of the press' means simply, solely, and only the right to be free from a precensorship, the right to be free from the restraints of a censor. In other words, under the Constitution as amended by amendment. No. 1, 'fredom of the press' means nothing except that the citizen is guaranteed that he may publish whatever he sees fit and not be subjected to pains and penalties because he did not consult the censor before doing so. The citizen is left to publish just what he pleases, and must take his chances before a court of his country as to whether or not he has published anything libelous or anything that may bring any human being to disrepute or ridicule, or whether he has published anything of a treasonable or obscene nature. I undertake to say upon the floor of the Senate that any sort of censorship which even the necessities of war may apparently cast upon us would not be in keeping with the Constitution of the United States." 55 Cong. Rec. 2004 (65th Cong., 1st Sess. 1917) On May 4, 1917. Section 4 of Title I of H.R. 291, quoted above, was stricken in the House. Id. at 1808. The bill passed without it. By the Act of May 16, 1918, Congress amended the Espionage Act of 1917 so as could be clearer than that Congress was aware of it, and of its significance. which Abrams v. United Staten, 250 U.S. 616 (1919), of unhappy memory, was in part decided. See also Pierce v. United States, 252 U.S. 239 (1920) ; Schaefer V. United States, 251 U.S. 466 (1920). In 1921, the 1918 amendment was rather resoundingly repealed. 51 Stat. 1359 (1921). When, in 1953. it enacted the second of the two sections numbered 798 in Title 18, continuing in effect the wartime penalties of Section 794, Congress had be- fore it a report from a Senate committee which analyzed some of the sections we are concerned with. The committee pointed out that the prohibition of Sec- tion 794 on gathering or publishing certain information with intent to commu- nicate it to the enemy could be invoked only in time of war. However, the com- mittee pointed out that Section 793 of Title 18 prohibits "similar acts of gather- ing or communicating defense information at any time (in wartime or peace- time), under penalty of a fine ... or imprisonment ... or both." S. Rep. No. 409, 83rd Cong., 1st Sess. 2 (1953). (Italics supplied) The committee thus care- fully noted and brought to the attention of Congress the differences between the two sections, and the omission in Section 793 of the act of publishing, although "similar acts of gathering or communicating" were covered. The committee did not suggest that Congress supply this omission, and Congress did not. But nothing could be clearer than that Congress was aware of it and of its significance. What the committee did suggest, and what Congress did do, was to continue in effect the wartime penalties of section 194-which does punish publishing. The omission of the word "publish" in section 793, and the fact, therefore, that newspapers were not covered by it, continued to be noticei in Congress. In 1957, the Senate had before it S. 2417, introduced June 27, 1957, by Senator Cotton (for himself and Senator Stennis), expressly to implement certain of the recommen- dations of the Commission on Government Security for revision, inter alia, of the espionage laws. (85th Cong., 1st Sess., 103 Cong. Rec. 10447). The Commission Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 specifically focused on the problem of unauthorized publication of classified infor- mation as being not covered by the Espionage Act : "The Commission found to its dismay that one frustrating aspect of this overall security problem is the frequent unauthorized disclosure without subversive intent of classified information affecting national security. Several instances were noted where information emanating from the Department of Defense, and subsequently determined to have been classified, has found its way through various media into the public domain, when in deference to the interests of national security more restraint should have been exercised before dissemination. Airplane journals, scientific periodicals, and even the daily newspaper have fea- tured articles containing information and other data which should have been deleted in whole or in part for security reasons. "In many instances the chief culprits responsible for any unauthorized publica- tion of classified material are persons quite removed from Government service and therefore not amenable to applicable criminal statutes or other civil penalties. Congressional inaction in this particular area can be traced to the genuine fear of imposing undue censorship upon the bulk of information flowing from the various governmental agencies, and which the American people, for the most part, have the right to know. Any statute designed to correct this difficulty must neces- sarily minimize constitutional objections by maintaining the proper balance between the guarantee of the first amendment, on one hand, and reduced measures to establish a needed safeguard against any real danger to our national security." (Report of the United States Commission on Government Security 619-20 (1957) ) That the Commission's Bill, S. 2418, was intended to extend the applicability of Section 793 to newsmen among others was well-understood. See 103 Cong. Rec. 10449 (85th Cong., 1st Sess. 1957). The bill was, of course, not acted upon, but it demonstrates yet again that until the present action against The New York Times, no one supposed that Congress, despite the First Amend- ment, and in the teeth of common English usage, had meant to cover the act of publishing by using such words as "communicate, deliver or transmit." The omis- sion of the word "publish" in Section 793 was noted. Judge Gurfein also held that under Gorin v. United States, 312 U.S. 19 (1941), 793(e) could be constitutionally applied, if at all, only upon a finding that a violation of it, in addition to being willful, was committed with knowledge that the information involved "could be used to the injury of the United States or to the advantage of any foreign nation." 8 Otherwise, the operative phrase of the statute "relating to the national defense," would be unconstitutionally vague. It may be that in the present ? 793(e), as compared to the slightly differ- ent predecessor section involved in Gorin, supra, the clause "reason to believe [that it] could be used etc...." modifies only the word "information," not the words "any document, writing, code book . . ." Scienter could not then be imputed as an element in the phrase "relating to the national defense" so far as it relates to documents and writings which under the Government's allega- tions are in issue in this case. Under either construction, the statute is inapplica- ble. Without scienter, Gorin v. United States indicates that it is too vague to be applied. If, on the other hand, scienter is held to be required, then, as Judge Gur- fein held, the Government must fail because it is impossible to find on this record that the New York Times has "reason to believe" that the documents "could be used to the injury of the United States or to the advantage of any foreign nation." As our uncontroverted affidavits show, the New York Times believed-as Judge Gurfein was later to hold-that it is dealing with historical materials running back several years, all at least three, and some many decades. A reason to surmise injury to the United States or advantage to a foreign nation could be imputed to the New York Times on the facts of this record only by accepting the preposterous and plainly unconstitutional construction that any discomfiture caused the government of the United States by political opposition at home qualifies as an injury to the United States and an advantage to a foreign nation within the meaning of ? 793 (e). Quite aside from any requirement of scienter, and all the more so if such a requirement is applicable, the concept of documents or information "relating to the national defense" must be restricted to a meaning that can fairly be ex- pected to have been in the the minds of, or at least accessible to, persons situ- ated as was the New York Times in this case. We believe the concept is uncon- 8 The United States Attorney observed that it was the Government's "assumption that the Times acted in complete good faith. . . (Tr. 36). That being so, there could be no violation of 18 U.S.C. 1793 (e). Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 stitutionally vague if it is read to go beyond both decided cases that have con- strued it in the past, and the common understanding exhibited in the practices of newspapers and publishers of other materials. At no time until the Government's motion was filed in the District Court on June 15 has the Government used this section to move criminally or civilly against the publication-not communication or transmittal or delivery, but publication-of any materials or information in a newspaper or magazine or book or any other medium addressed internally within the United States to the American public. This has been the unbroken administrative practice, which we submit is conclusive against the attempted application of section 793 in this case. Cf., Poe v. Ullman, 367 U.S. 497 (1961). There might be some question about the significance of the previously unbroken administrative practice if it were true that no or few recent occasions had arisen, or come to the Government's attention, which presented the need for an appli- cation of the statute (if such an application were thought possible), beyond the ordinary espionage situation. But the overwhelming fact, demonstrated by our uncontradicted affidavits (e.g., Frankel affidavit ?? 15, 16, 20)? is that numerous publications similar and even precisely equivalent to the publications made and still contemplated by the New York Times have been common in news- papers, magazines and books in the United States for many years. The unbroken practice on the part of the government of moving only against what may properly be defined as espionage has prevailed, then, in a context of public disclosure in which the supposed offense now charged to the New York Times under Section 793(e) was common occurrence in newspapers, maga- zines and books published to the American people.10 This is the context of public discourse in which memoirists who formerly held high government office and various journalists and others have published books going over the same grounds as the publications of the New York Times, and using in part materials included in the documents now in possession of the New York Times." It may be contended that Attorney General Mitchell's telegram to the New York Times of June 14th authoritatively defines the phrase "relating to the national defense" for purposes of this case, and cures its vagueness. Among other difficulties with this contention, the decisive one is that it would repose untrammeled discretion in the Attorney General or in the Secretary of Defense or in some other officers of the Government to define the terms of a statute which imposes criminal penalties, and which in this unprecedented instance is being used to impose a prior restraint upon a newspaper. Such a delegation would without doubt be unconstitutional under Kent v. Dulles, supra ; Rumely v. United States, supra ; Watkins v. United States, supra ; Sweezy v. New Hamp- shire, 354 U.S. 234 (1957). See also, Schechter Poultry Company v. United States, 295 U.S. 495 (1935). There is no warrant for defining the concept, "relating to the national defense," as coterminous with the concept of classified information. Nor would it be possible in this fashion to cure the vagueness of the phrase as applied in this case, since no expectation can be imputed to the defendant that any classified material, no matter what its nature, would be considered to relate to the national defense within the meaning of this statute. It is notorious that numerous papers having no proper relation to the national defense, or no longer having any, and in no sense dangerous or injurious to the national security if published, are or remain nevertheless classified, despite the perhaps more restrictive criteria for classification contained in Executive Order No. 10501 3 C.F.R. 280 (1970). The late Professor Chafee wrote : 0 See also affidavit of Walter Rugaber, ? 12 and annexed exhibits ; affidavit of Hedrick Smith, ? 2 and annexed exhibits, affidavit of John W. Finney, IF 2 and annexed exhibits ; affidavit of Tad Szulc, ? 2 and annexed exhibits ; and affidavit of William Beecher, ? 2 and annexed exhibits. 10 One-time newspaper (but not book) publications are difficult to move against by seeking an injunction. But ours is not the first relevant serial publication. For example, the series by David Kraslow and Stuart Loory of the Los Angeles Times entitled "The Secret Search For Peace in Vietnam." to this day the most extensive newspaper (end book account of the diplomacy surrounding the War. 11 See Frankel affidavit ?? 27. 2R: see also Matthew B. Ridgeway, The Korean War. pp. 267. 268 (containing texts of letter of instruction to air and naval forces of the United States; Theodore C. Sorenson, "Kennedy," n. 612 (relating to the "missile gap"), p. 642 (relating to U.S. Intervention in Laos), p. 659 (paranhrasing cable relating to overthrow of Diem). p. 712 (relating to Cuban missile crises) ; John Bartlow Martin. "Overtaken by Events," p. 757 (revealing the author's sources of information to he private notes and files accumulated while in government service). p. 235 (paraphrasing a "top priority- top secret" cable on communist involvement in Dominican Republic in 1965). Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 "Of course, state secrets are nothing new. Military information was always guarded from the enemy, and bureaucrats have often invoked public safety as a protection from criticism. What is significant is the enormous recent expansion of the subjects which officials are seeking to hide from publication until they give the signal. If persuasion fails to prevent leaks, they are tempted to use threats. The result may be a hush-hush attitude, likely to extend beyond the real public need for silence . . . A direct consequence of secrecy in the ordinary press may be great activity of the subsidiary press in disseminating the concealed material, and this is more dangerous than frank discussion in the general press Too often we get as gossip what ought to reach us as regular news." Chafee, Government and Mass Communications 13, 14 (Archon ed. 1965). It may be true, and it does not in any event affect our position in this case, that as was held in Epstein v. Resor, 296 F. Supp. 214 (D.C.N.D. Calif. 19(9), aff'd, 421 F.2d 930, cert. denied, 398 U.S. 965 (1970), no elaborate inquiry into the justification for a classification will be undertaken by a court in response to a suit by a private individual seeking to have the Government declassify material so that the plaintiff can obtain it under Section 3 of the Administrative Procedure Act, 5 U.S.C. ? 552. That statute by its terms does not apply to mate- rials kept secret in the interest of national defense or foreign policy. The scope of review of the Epstein case may, perhaps, be acceptable when the classification comes under attack in a suit by a plaintiff wanting to Obtain material from the Government-that is one thing. But there is a vast different when application to a private person of a criminal statute is attempted, or when as here the Gov- ernment seeks to impose a prior restraint on publication. Under these conditions, the judicial function in passing on criteria for classification is infinitely more crucial. Yet, of course, even In-the Epstein case, as we have noted, the Court did not accept without question and without judicial review any classification simply because it was placed on a document in the regular order by a govern- ment official. The Court undertook rather to make an independent judicial inquiry at least whether a classification is "clearly arbitrary and unsupportable." Other cases in addition to Epstein conclusively refute any assertion that the question of whether a classification is valid is a political question, and that the act of classification is an exercise of executive discretion not subject to judicial review. To the contrary, as it affects private rights, the act of classifying a document, like other even more serious exercises of executive discretion relat- ing to the internal and external security of the country, is subject to judicial review, even as the ultimate act of declaring martial law is under our system of government subject to judicial review.12 Sterling v. Constantin, 287 U.S. 378 (1932) ; Duncan v. Kahanamoku, 327 U.S. 304, 336, (1946), (Stone, C. 3., con- curring). In the United States v. Drummond, 354 F.2d 132 (2d Cir. 1965), cert. den. 384 U.S. 1013 (1966), which affirmed a conviction under the Federal Espio- nage Act, .the court held that the classification of certain documents as "Top Secret" or as "containing information affecting the national security of the United States" was not sufficient for a conviction. Rather, the Second Circuit ruled that the defendant had a "right to a jury determination on the character of the documents," pointing out that the trial court had properly charged the jury that : "Whether any given document relates to the national defense of the United States is a question of fact for you to decide. It is not a question of how they were marked." Id. at 152. The Government cannot rest, in this action, on any statutory authority. APPENDIX C TESTIMONY OF SENATOR LLOYD BENTSEN Mr. Chairman, it is indeed a pleasure to be here today. In 1975 I first intro- duced my bill to protect the identities of intelligence personnel. Recent Soviet aggression, and instability in other trouble spots around the world, demonstrates more graphically than ever the need for strong and effective intelligence. 12 A somewhat analogous situation is the assertion by the Government of a privilege not to disclose classified information demanded by a party in a suit to which the government is also a party. This privilege was honored in narrowly defined circumstances in United States v. Reynolds, 345 U.S. 1 (1953). partly on the ground that no unavoidable necessity was shown for the privileged information. But the court noted that "[jludicial control over the evidence in a case cannot he adjudicated to the caprice of executive officers." 345 U.S. at 9-10. Cf.. Proposed Rule of Evidence for the United States Courts and Magistrates Rule 509 "Military and State Secrets." subparagraph (e) 91 S. Ct. 61-64 (Apr. 15, 1971). 53 (19privilege" is also carefully circumscribed. See Rovario V. United States, government "Informer Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 In this Congress we have an opportunity to consider and hopefully enact legislation to protect identities, to tighten the Freedom of Information Act, to provide death gratuties, and to modify Hughes-Ryan. We can do this in a manner consistent with National Security, and with our desire to provide clear safe- guards against the abuses of the past. Today we consider identities protection. These hearings provide a vital forum for considering the various legislative proposals, and for weighing and evalu- ating the objections raised. My bill, S. 191, is a narrow bill targeted at former or current government employees who break their trust and reveal the identities of acting intelligence personnel. Other proposals would cast a wider net. I, like this subcommittee, will consider every argument raised for and against every proposal. Rather than hardening positions, I would hope these hearings would present a free trade in ideas, a first step towards a consensus. Mr. Chairman, since George Washington first sent Americans behind the British lines, we have understood the crucial need for intelligence information. If we anticipate crisis we can prevent them or be better able to cope. We live today in a dangerous world, facing a Soviet Union that has contempt for human rights, basic freedoms, national sovereignty and international law. Our intelli- gence capability must be strong and effective. Our intelligence activity must be consistent with our national ideals. We can stand strong, and stand for some- thing important. Individuals who undertake dangerous intelligence work deserve our support and our appreciation. They serve our country at great personal risk. They perform vital tasks. The very anonymity of their profession mandates that their work is often unheralded, their failures often criticized, their successes generally unknown. Those who perform intelligence work undertake a sober responsibility. They have access to the most sensitive information. They know the identities of officers who could be dead if exposed. They have inside knowledge of operations that could be devastated if revealed. They deal with foreign sources who could be deterred by fear of disloyalty or leaks. Those involved in this work accept a trust, the trust of confidentiality, a trust others have honored to protect them. With life and death at stake, with the national interest in the balance, they pledge, on their honor, to serve their country and protect their colleagues. Those who violate this trust commit one of the most serious crimes imaginable, and they should be forewarned that they will be punished accordingly. In recent years a small band of renegade former employees has embarked on a crusade to destroy our intelligence capability. At forums such as the youth festival in Havana, they declare war against our intelligence service. Let's be clear about what they are doing: they threaten the lives of their colleagues, who are vulnerable to terrorists or foreign powers. They erode our national security, which is dependent on sound information that can only be gathered by live personnel. Wittingly or not, they serve the interest of those who oppose the United States. Wittingly or not, they serve the interest of those most opposed to freedom and human rights. They serve those whose goal is totalitarian, whose method is the Gulag, whose policy is contempt for international law. That's why my bill singles out those who have broken the most basic trust. I suggest if they had revealed the names of Soviet KGB agents, they might not be alive today to continue their self-righteous and indefensible proclamations. They should be punished according to the protections and duties of American due process of law, a due process, I might add, that is not available in those nations most benefitted by their reprehensible conduct. Mr. Chairman, at the very least, identities protection must be enacted in this Congress. Hughes-Ryan should be changed in this Congress. We must maintain vigorous oversight. We must protect against abuses. This can be accomplished by having the House and Senate Intelligence committees perform vigorous over- sight over covert actions. There is no excuse for having eight congressional committees, including some two hundred legislators and their staffs, with an oversight function so cumbersome that it severely and unnecessarily hampers effective covert actions. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 We should tighten up the freedom of information act in this Congress, to protect our intelligence capability from hostile powers who would threaten our Nation by abusing our laws. We should pass a bill I have introduced to provide death benefits for dependents of intelligence personnel killed in the line of duty, in this Congress. This is the least we owe those who serve us. This is an important message of support as well as an expression of basic fairness. I believe that my identities protection bill can win almost unanimous support in this Congress. I think it should be enacted this year. I will be carefully following the actions of the intelligence committees, and the testimony re- ceived. I look forward to congressional action in the immediate future. Mr Chairman, in recent years our intelligence service has had difficult days. We have seen abuses that must never be tolerated. We have seen violations of civil rights. and actions that were clearly against our national ideals and our national interest. We must put those days behind us, and stand vigilant in our determination that they will never be relived. There can be no retreat from the principles upon which this Nation was founded. It is these principles, as much as our strong economy and our strong defense and the will of our people, that makes this a great Nation. We can live up to these ideals, and we can have a strong and effective intel- ligence capability. We need not sacrifice national security or national principle. We must enact the changes needed to improve our intelligence capability ; we must maintain those safeguards necessary to insure that past abuses are not repeated. I look forward to working with your subcommittee, and I thank all witnesses for expressing their views. No task can be more important in this dangerous world. APPENDIX D [H.R. 3356, 96th Congress, 1st session] of certain employees of the Central A Bill To protect the confidentiality the Identities Agency Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) whoever, being or having been in authorized possession or control of any information which identifies or which can lead to the identification of any individual or entity as being or having been an employee or agent of, or having been associated with, the Central Intelligence Agency and such information has been specifically designated by an Executive order of the President as requiring a specific degree of protection, willfully discloses such information to any person not authorized to receive such informa- tion shall be fined not more than $10.000 or imprisoned not more than ten years, or both. (b) Prosecution under subsection (a) shall be barred if any information described in subsection (a) is communicated to- (1) a regularly constituted committee or subcommittee of the Senate or the House of Representatives, or any joint committee of the Congress, which has oversight jurisdiction of intelligence activities of the United States, (2) a judge of any United States district court pursuant to an order of such court issued upon a showing that production of such information is reasonably needed for any judicial proceeding, and (3) any Federal law enforcement officer, if application is made by the Attorney General of the United States, or any Assistant Attorney General specifically designated by the Attorney General, to the judge of any United States district court and such judge (A) makes a finding that the disclosure of any information described in the first section is essential to the investiga- tion of a possible crime, and (B) issues an order authorizing the disclosure of such information to such law enforcement officer. SEC. 2. As used in this Act. the term "authorized" means the authority to have access to, to receive. to possess, or to control information as a result of the provi- sions of a Federal statute or an Executive order of the President. SEc. 3. A person not authorized to receive information described in the first section of this Act shall not be subject to prosecution as an accomplice within the meaning of section 2 or 3 of title 18, United States Code, or to prosecution for conspiracy to commit an offense described in the first section of this Act. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 APPENDIX E [H.R. 3357, 96th Congress, 1st session] A Bill To protect the confidentiality of the identities of certain employees of the Central Intelligence Agency Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) whoever, being or having been in authorized possession or control of any information which identifies or which can lead to the identification of any individual or entity as being or having been an employee or agent of, or having been associated with, the Central Intel- ligence Agency and such information has been specifically designated by an Executive order of the President as requiring a specific degree of protection, willfully discloses such information to any person not authorized to receive such information shall be fined not more than $10,000 or imprisoned not more than ten years, or both. (b) Prosecution under subsection (a) shall be barred if any information de- scribed in subsection (a) is communicated to- (1) a regularly constituted committee or subcommittee of the Senate or the House of Representatives, or any joint committee of the Congress, which has oversight jurisdiction of intelligence activities of the United States, (2) a judge of any United States district court pursuant to an order of such court issued upon a showing that production of such information is reasonably needed for any judicial proceeding, and (3) any Federal law enforcement officer, if application is made by the Attorney General of the United States, or any Assistant Attorney General specifically designated by the Attorney General, to the judge of any United States district court and such judge (A) makes a finding that the disclosure of any information described in the first section is essential to the investiga- tion of a possible crime, and (B) issues an order authorizing the disclosure of such information to such law enforcement officer. SEC. 2. As used in this Act, the term "authorized" means the authority to have access to, to receive, to possess, or to control information as a result of the pro- visions of a Federal statute or an Executive order of the President. SEC. 3. A person not authorized to receive information described in the first section of this Act shall not be subject to prosecution as an accomplice within the meaning of section 2 or 3 of title 18, United States Code, or to prosecution for conspiracy to commit an offense described in the first section of this Act. APPENDIX F [H.R. 3496, 96th Congress, 1st session] A bill to protect the confidentiality of the identities of certain employees of the Central Intelligence Agency Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) whoever, being or having been in authorized possession or control of any information which identifies or which can lead to the identification of any individual or entity as being or having been an employee or agent of, or having been associated with, the Central Intelligence Agency and such information has been specifically designated by an Executive order of the President as requiring a specific degree of protection, willfully discloses such information to any person not authorized to receive such informa- tion shall be fined not more than $10,000 or imprisoned not more than ten years, or both. (b) Prosecution under subsection (a) shall be barred if any information described in subsection (a) is communicated to- (1) a regularly constituted committee or subcommittee of the Senate or the House of Representatives, or any joint committee of the Congress, which has oversight jurisdiction of intelligence activities of the United States, (2) a judge of any United States district court pursuant to an order of such court issued upon a showing that production of such information is reasonably needed for any judicial proceeding, and (3) any Federal law enforcement officer, if application is made by the Attorney General of the United States, or any Assistant Attorney General Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 specifically designated by the Attorney General, to the judge of any United States district court and such judge (A) makes a finding that the disclosure of any information described in the first section is essential to the Investiga- tion of a possible crime, and (B) Issues an order authorizing the disclosure of such information to such law enforcement officer. SEC. 2. As used in this Act, the term "authorized" means the authority to have access to, to receive, to possess, or to control information as a result of the pro- visions of a Federal statute or an Executive order of the President. SEC. 3. A person not authorized to receive information described in the first section of this Act shall not be subject to prosecution as an accomplice within the meaning of section 2 or 3 of title 18, United States Code, or to prosecution for conspiracy to commit an offense described in the first section of this Act. [H.R. 3762, 96th Congress. 1st session] A bill to amend title 18, United States Code, to prohibit the unauthorized disclosure of information concerning individuals engaged or assistnig in foreign intelligence or counterintelligence activities, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Intelligence Officer Identity Protection Act of 1979". SEC. 2. Chapter 37 of title 18, United States Code, is amended by adding at the end thereof the following new section : 800. Unauthorized disclosure of information concerning individuals engaged or assisting in foreign intelligence or counterintelligence activities " (a) Whoever, being or having been an officer or employee of the United States or member of the uniformed services of the United States, knowingly discloses information identifying any individual as associated with a department or agency of the United States engaged in foreign intelligence or counterintelligence ac- tivities, which association is classified and has not been publicly acknowledged by the United States, to anyone not authorized to receive it, shall be imprisoned for not more than ten years or fined not more than $100,000, or both. "(b) Whoever, having or having had lawful access to information identifying individuals as associated with a department or agency of the United States engaged in foreign intelligence or counterintelligence activities, knowingly dis- closes information concerning any such association which is classified and has not been publicly acknowledged by the United States, to anyone not authorized to receive it, shall be imprisoned for not more than ten years or fined not more than $100,000, or both. "(c) Whoever knowingly discloses information identifying any individual as associated with a department or agency of the United States engaged in foreign intelligence or counterintelligence activities, which association is classified and has not been publicly acknowledged by the United States, to anyone not author- ized to receive it, where such disclosure prejudices the safety or well-being of the individual identified, or damages the foreign intelligence or counterintelli- gence efforts of the United States, shall be imprisoned for not more than ten years or fined not more than $100,000, or both. "(d) Whoever falsely asserts, publishes, or otherwise claims that any indi- vidual is an officer or employee of a department or agency of the United States engaged in foreign intelligence or counterintelligence activities, where such as- sertion, publication, or claim prejudices the safety or well-being of any officer, employee, or citizen of the United States or adversely affects the foreign affairs functions of the United States, shall be imprisoned for not more than five years or fined not more than $50,000, or both. "(e) Whenever, in the judgment of the head of any department or agency engaged in foreign intelligence or counterintelligence activities, any person is about to engage in conduct that would constitute a violation of this Act, the Attorney General, on behalf of the United States, may make application to an appropriate United States district court for an order enjoining such conduct. Upon a showing that the safety or well-being of any officer, employee, or citizen Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 154 of the United States would likely be jeopardized or that irreparable damage to United States foreign intelligence or counterintelligence activities or foreign affairs functions would be likely to result if such conduct is carried out, a perma- nent or temporary injunction, restraining order, or other order may be granted. Any proceeding conducted by a court under this subsection for the purpose of determining whether any information constitutes the type of information de- scribed in this Act shall be held in camera. "(f) No person other than a person described in subsections (a) and (b) of this Act shall be subject to prosecution as an accomplice or accessory within the meaning of section 2 or 3 of title 18, United States Code, to the offenses pro- scribed by subsections (a) and (b) or to prosecution for conspiracy to commit such offenses. "(g) As used in this Act : "(1) `Authorized' means determined to have authority, right, or per- mission pursuant to the provisions of statute, Executive order, directive of the head of any department or agency engaged in foreign intelligence or counterintelligence activities, order of a judge of any United States district court, or United States Senate or House of Representatives resolution which assigns primary responsibility for the oversight of intelligence activities. "(2) `Discloses' means to communicate, provide, impart, transmit, transfer. convey, publish, or otherwise make available to any person. "(3) `Associated with' means having a present or former employment, contractual, or other cooperative relationship. "(4) `Lawful access' means the opportunity to know, receive, possess, or control pursuant to the provisions of a statute, Executive order, directive of the head of any department or agency engaged in foreign intelligence or counterintelligence activities, order of a judge of any United States district court, or United States Senate or House of Representatives resolution which assigns primary responsibility for oversight of intelligence activities. "(5) `Classified' means designated and clearly marked or represented pursuant to the provisions of a statute or Executive order or rule of regula- tion issued pursuant thereto as information requiring protection against unauthorized disclosure for reasons of national security. "(6) The words `officer,' `employee.' and `uniformed services' shall have the same meaning as in title V, United States Code, sections 2104, 2105, and 2101, respectively.". [H.R. 4291, 96th Congress, 1st session] A bill to enhance United States intelligence collecting capabilities by prohibiting the un- authorized disclosure of information concerning individuals engaged or assisting in foreign intelligence or counterintelligence activities, and for other purposes Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SHORT TITLE SECTION 1. This Act may be cited as the "Intelligence Agents Protection Act of 1979". UNAUTHORIZED DISCLOSURE OF INFORMATION CONCERNING INDIVIDUALS ENGAGED OR ASSISTING IN FOREIGN INTELLIGENCE OR COUNTERINTELLIGENCE ACTIVITIES SEC. 2. (a) Whoever knowingly and willingly discloses to an unauthorized party information identifying an individual engaged in foreign intelligence or counterintelligence activities for the United States Government, whose associa- tion with a department or agency of the United States engaged in foreign in- telligence or counterintelligence activities is classified and has not been publicly acknowledged by the United States, shall be fined not more than $100,000 or imprisoned for not more than twenty years, or both. (b) Whoever falsely asserts, publishes, or otherwise claims that an individual is engaged in foreign intelligence or counterintelligence activities for the United States Government shall be fined not more than $50,000 or imprisoned for not more than ten years, or both. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 (c) Whenever, in the judgment of the head of a department or agency engaged in foreign intelligence or counterintelligence activities for the United States Government, a person is about to engage in conduct that would constitute a violation of subsection (a) of this section, the Attorney General, on behalf of the United States, shall make application to an appropriate United States dis- trict court for an order enjoining such conduct. Upon a showing that such action would constitute a violation of this section, a permanent or temporary injunction, restraining order, or other order shall be granted. Any proceeding conducted by a court under this subsection for the purpose of determining whether any information constitutes the type of information described in subsection (a) of this section shall be held in camera. (d) As used in subsection (a) of this section, the term- (1) "discloses" means to communicate, furnish, provide, impart, convey, transfer, publish, or otherwise make available to any person ; (2) "unauthorized party" means person, organization, or other entity not given the authority, right, permission, or opportunity to know, receive, possess, or control pursuant to the provisions of a statute, Executive order, directive of the head of any department or agency engaged in foreign intel- ligence or counterintelligence activities, order of a judge of any United States district court, or United States Senate or House of Representatives resolution which assigns primary responsibility for oversight of intelligence activities ; (3) "classified" means designated pursuant to the provisions of a statute or Executive order or rule or regulation issued pursuant thereto as infor- mation requiring protecction against unauthorized disclosure for reasons of national security ; and contractual, (4) "association or t on other with" means having or former employment, (e) Nothing in this section shall prohibit the furnishing, upon lawful demand, of information to any of Representatives of the United States of Am mma, or intucommittee t er osf.. FORFEITURE OF ANNUITIES, RETIRED PAY, AND VETERANS BENEFITS SEc. 3. (a) Upon conviction of an offense under section 2 of this Act, from and after the date of commission of such offense- (1) an individual, or his survivor or beneficiary, may not be paid annuity or retired pay on the basis of the service of the individual to the hUnndd indi- States which is creditable toward the annuity or retired pay vidual under title 5 of the United States Code ; and (2) an individual shall have no right to gratuitous benefits (including the right to burial in a national cemetery) under laws administered by the Veterans' Administration based on periods of military, naval, or air service commencing before the date of the commission of such offense and no other person shall be entitled to such benefits on account of such individual. (b) After receipt of notice of the return of an indictment under section 2 of this Act, the Office of Personnel Management and the Veterans' Administra- tion shall suspend payment of annuity and retired pay and veterans benefits pending disposition of the criminal proceedings. If an individual whose right to such payments has been terminated pursuant to this section is granted a pardon of the offense by the President of the United States, the right to such payments shall be restored as of the date of such pardon. (c) The Attorney General shall notify the Director of the Office of Personnel Management and the Administrator of the Veterans' Administration on each case in which an individual is indicted of an offense under section 2 of this Act, and the disposition of such criminal proceedings. APPENDIX I [H.R. 5615, 96th Congress, 1st session] rmants, A of Bill to aT-end Information t dentifyingicerSecurltv Act of 1947 to tain United States intelligence officers, agents, unauthorized infodisclosure and sources Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Intelligence Identities Protection Act". Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 SEC. 2. (a) The National Security Act of 1947 is amended by adding at the end thereof the following new title : "TITLE V-PROTECTION OF CERTAIN NATIONAL SECURITY INFORMATION "PROTECTION OF IDENTITIES OF CERTAIN UNITED STATES UNDERCOVER INTELLIGENCE OFFICERS, AGENTS, INFORMANTS, AND SOURCES "SEC. 501. (a) Whoever, having or having had authorized access to classified information that- "(1) identifies as an officer or employee of an intelligence agency, or as a member of the Armed Forces assigned to duty with an intelligence agency, any individual (A) who in fact is such an officer, employee, or member, (B) whose identity as such an officer, employee, or member is classified infor- mation, and (C) who is serving outside the United States or has within the last five years served outside the United States ; or "(2) identifies as being or having been an agent of, or informant or source of operational assistance to, an intelligence agency any individual (A) who in fact is or has been such an agent, informant, or source, and (B) whose identity as such an agent, informant, or source is classified information, intentionally discloses to any individual not authorized to receive classified information any information that identifies an individual described in para- graph (1) or (2) as such an officer, employee, or member or as such an agent, informant, or source, knowing or having reason to know that the informa- tion disclosed so identifies such individual and that the United States is tak- ing affirmative measures to conceal such individual'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 with the intent to impair or impede the foreign intelligence activities of the United States discloses to any individual not authorized to receive classified information any information that- "(1) identifies as an officer or employee of an intelligence agency, or as a member of the Armed Forces assigned to duty with an intelligence agency, any individual (A) who in fact is such an officer, employee, or mem- ber, (B) whose identity as such an officer, employee, or member is classi- fied information, and (C) who is serving outside the United States or has within the last five years served outside the United States ; or "(2) identifies as being or having been an agent of, or informant or source of operational assistance to, an intelligence agency any individual (A) who in fact is or has been such an agent, informant, or source, and (B) whose identity as such as agent, informant, or source is classified information, knowing or having reason to know that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual's intelligence relationship to the United States, shall be fined not more than $5,000 or imprisoned not more than one year, or both. "DEFENSES AND EXCEPTIONS "SEC. 502. (a) It is a defense to a prosecution under section 501 that before the commission of the offense with which the defendant is charged. the United States had publicly acknowledged or revealed the intelligence relationship to the United States of the individual the disclosure of whose intelligence relation- ship to the United States is the basis for the prosecution. "(b) (1) Subject to paragraph (2), no person other than a person committing an offense under section 501 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 conspiracy to commit an offense under such section. "(2) Paragraph (1) shall not apply in the case of a person who acted with the intent to impair or impede the foreign intelligence activities of the United States. "(c) In any prosecution under section 501(b), proof of intentional disclosure of information described in such section, or inferences derived from proof of Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 such disclosure, shall not alone constitute proof of intent to impair or impede the foreign intelligence activities of the United States. "(d) It shall not be an offense under section 501 to transmti information described in such section directly to the Select Committee on Intelligence of the Senate or to the Permanent Select Committee on Intelligence of the House of "EXTRATERRITORIAL JURISDICTION "SEC. 503. There is jurisdiction over an offense under section 501 committed outside the United States if the individual committing 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 Immigration and "PROVIDING INFORMATION TO CONGRESS "SEC. 504. Nothing in this title shall be construed as authority to withhold information from Congress or from a committee of either House of Congress. "SEC. 505. For the purposes of this title : " (1) The term `classified information' means information or material des- ignated and clearly marked or clearly represented, pursuant to the pro- visions of a statute of Executive order (or a regulation or order issued pursuant to a statute or Executive order), as requiring a specific degree of protection against unauthorized disclosure for reasons of national security. "(2) The term `authorized,' when used with respect to access to classified information, means having authority, right, or permission pursuant to the provisions of a statute, Executive order, directive of the head of any depart- ment or agency engaged in foreign intelligence or counterintelligence ac- tivities, order of a United States district court, or provisions of any Rule of the House of Representatives or resolution of the Senate which assigns responsibility within the respective House of Congress for the oversight of intelligence activities. "(3) The term `disclose' means to communicate, provide, impart, transmit, transfer, convey, publish, or otherwise make available. " (4) The term 'intelligence agency' means the Central Intelligence Agency or any intelligence component of the Department of Defense. "(5) The term 'informant' means any individual who furnishes or has furnished information to an intelligence agency in the course of a confidential relationship protecting the identity of such individual from public disclosure. " (6) The terms 'agent', 'informant', and 'source of operational assistance' do not include individuals who are citizens of the United States residing within the United States. "(7) The terms 'officer' and 'employee' have the meanings given such terms by sections 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 Pacific Islands.". (b) The table of contents at the beginning of such Act is amended by adding at the end thereof the following : "TITLE V-PROTECTION OF CERTAIN NATIONAL SECURITY INFORMATION "Sec. 501. Protection of identities of certain United States Undercover intelligence of- ficers, agents, informants, and sources. "Sec. 502. Defenses and exceptions. "Sec. 503. Extraterritorial Jurisdiction. "Sec. 504. Providing information to Congress. "Sec. 505. Definitions.". SECTION BY SECTION ANALYSIS OF H.R. 5615 INTELLIGENCE IDENTITIES PROTECTION ACT The Act would add a new Title V to the National Security Act of 1947. Section 501 would establish two separate offenses for the disclosure of in- formation identifying certain United States intelligence personnel, depending on the status of the offender. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 158 Section 501 (a) would apply if the offender had authorized access to classified information containing the identity of certain intelligence personnel and - dis closes any information identifying such personnel. In such a case, the offender would be subject to a fine of $50,000 or imprisonment for not more than ten years, or both. Section 501(b) would apply to any person who discloses information identi- fying certain United States intelligence personnel. In such a case, the offender would be subject to a fine of $5,000, or imprisonment for not more than one year, or both. As to both categories, the government must prove that the intelligence rela- tionship which is revealed by the disclosure is classified, that the disclosure was intentional, that the offender knew or had reason to know that the informa- tion disclosed identified protected intelligence personnel, that the offender knew or had reason to know that the United States was taking affirmative steps to conceal the intelligence relationship of the protected intelligence personnel, and that the person to whom the identifying information is disclosed was not au- thorized to receive classified information. If the offender has not had lawful access to classified information, the govern- ment must also prove that the disclosure was made with an intent to impair or impede the foreign intelligence activities of the United States. The Intelligence personnel whose identities are protected from disclosure by Section 501(a) and (b) are: Civilian officers or employees of the CIA or an intelligence component of the Department of Defense, or members of the Armed Forces assigned to duty with the CIA or such component, if such officer, employee or member is serving outside the United States at the time of the disclosure or has so served within 5 years preceding the disclosure. Anyone, except a United States citizen residing within the United States, who is or has been an agent of, or informant or source of operational assist- ance to, the CIA or an intelligence component of the Department of Defense. Section 502(a) establishes as a defense to a charge under 501(a) or (b) the fact that the United States had, prior to the disclosure, publicly acknowledged or revealed the intelligence relationship which is the subject of the disclosure. Section 502(b) (1) & (2) insure that a person who does not actually disclose information cannot be convicted under theories of aiding or abetting, misprison of a felony, or conspiracy unless the government proves an intent to impair or impede the foreign intelligence activities of the United States. Section 502(c) requires the government, when attempting to prove the intent element of section 501(b), to produce some evidence of intent in addition to the infrences that may be drawn from the fact of the intentional disclosure. Thus, the legal principle that a person is presumed to intend the foreseeable conse- quences of his actions cannot be used as the sole basis to prove that the defendant intended to impair or impede the foreign intelligence activities of the United States. Section 502(d) insures that disclosures made directly to the Senate or House Intelligence Committees are not criminal offenses. Section 503 makes clear that the federal government can prosecute a United States citizen or a permanent resident alien for an offense under Title 5, though the offense is physically committed outside of the United States. Section 504 is intended to make clear that the provisions in this title cannot be the basis for an executive branch decision to withhold information from Congress. Section 505 contains the definitions of the operative terms of the preceding provisions. The term "classified information" means identifiable information or material which is protected from unauthorized disclosure for reasons of national security pursuant to the provisions of a statute or executive order. The term "authorized" when used with respect to access to classified infor- mation, means having authority, right, or permission pursuant to the provisions of a statute, executive order, directive of the head of any department or agency engaged in foreign intelligence or counterintelligence activities, order of a United States district court, or provisions of any rule of the House of Repre- sentatives or resolution of the Senate which assigns responsibility within the respective House of Congress for the oversight of intelligence activities. The term "disclose" means to reveal by any means whatsoever, including publication in the press or other public information media. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 The term "intelligence agency" means the CIA or any intelligence component of the Department of Defense. The term "informant" means any individual who furnishes or has furnished information to an intelligence agency in the course of a confidential relationship protecting the identity of such individual from public disclosure. The terms "agent," "informant," and "source of operational assistance" do not include individuals who are citizens of the United States residing within the United States. Thus, for example, a disclosure that an American college professor, was, on a confidential basis, aiding CIA recruitment on campus could not be the subject of a criminal prosecution. The terms "officer" and "employee" have the meanings given such terms by sections 2104 and 2105, respectively, of Title 5, United States Code. The term "Armed Forces" means the Army, Navy, Air Force, Marine Corps, and Coast Guard. 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 Pacific Islands. APPENDIX J DEPARTMENT OF JUSTICE BILL tion cert Identif Individu A Bill To prohiassis ing in flosure oreign i tellis nce act vitiesyof inghe United States als engaged or Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Foreign Intelligence Identities Protection Act." STATEMENT OF FINDINGS SEC. 2. The Congress hereby makes the following findings : (a) Successful and efficiently conducted foreign intelligence activities are es- sential to the national security of the United States. (b) Successful and efficient foreign intelligence activities depend in large part upon concealment of relationships between components of the United States gov- ernment that carry out those activities and certain of their employees and sources of information. (c) The disclosure of such relationships to unauthorized persons is detrimental to the successful and efficient conduct of foreign intelligence and counterintel- ligence activities of the United States. (d) Individuals who have a concealed relationship with foreign intelligence components of the United States government may be exposed to physical danger if their identities are disclosed to unauthorized persons. SEC. 3. Title 18, United States Code, is amended by adding the following new chapter : "Chapter 38-DISCLOSURE OF INFORMATION IDENTIFYING CERTAIN INDIVIDUALS ENGAGED OR ASSISTING IN FOREIGN INTELLIGENCE ACTIVITIES" SECTION 800. Definitions. As used in this Chapter : (a) "Discloses" means to communicate, provide, impart, transmit, transfer, convey, publish, or otherwise make available to any unauthorized person. (b) "Unauthorized" means without authority, right, or permission pursuant to the provisions of a statute or Executive Order concerning access to national security information, the direction of the head of any department or agency engaged in foreign intelligence activities, the order of a judge of any United States court, or a resolution of the United States Senate or House of Representa- tives which assigns responsibility for the oversight of intelligence activities. (c) "Covert agent" means any present or former officer, employee, or source of an intelligence agency or a member of the Armed Forces assigned to duty with an intelligence agency (I) whose present or former relationship with the intelligence agency is protected by the maintenance of a cover or alias identity. or, in the case of a source, is proteected by the use of a clandestince means of communication or meeting to conceal the relationship and (Ii) who is serving Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 outside the United States or has within the last five years served outside the United States. (d) "Intelligence agency" means the Central Intelligence Agency or any for- eign intelligence component of the Department of Defense. (e) "Classified information" means any information or material that has been determined by the United States government pursuant to an executive order, statute, or regulation, to require protection against unauthorized dis- closure for reasons of national security. SECTION 801. Disclosure of Intelligence Identities. (a) Whoever knowingly discloses information that correctly identifies another person as a covert agent, with the knowledge that such disclosure is based on classified information, or attempts to do so, is guilty of an offense. (b) An offense under this section is punishable by a fine of not more than $50,000 or imprisonment for not more than ten years, or both. (c) There is jurisdiction over an offense under this section committed out- side the United States, if the individual committing the offense is a citizen of the United States or an alien lawfully admitted to the United States for per- manent residence. SECTION 802. Disclosure of Intelligence Identities by Government Employees. (a) Whoever, being or having been an employee of the United States govern- ment with access to information revealing the identities of covert agents, know- ingly discloses information that correctly identifies another person as a covert agent, or attempts to do so, is guilty of an offense. (b) An offense under this section is punishable by a fine of not more than $25,000 or imprisonment for not more than five years, or both. (c) There is jurisdiction over an offense under this section committed out- side the United States if the individual committing the offense is a citizen of the United States or an alien lawfully admitted to the United States for per- manent residence. SECTION-BY-SECTION ANALYSIS This bill, entitled the "Foreign Intelligence Identities Protection Act," would add a new Chapter 38 to Title 18 of the United States Code imposing criminal penalties for certain disclosures of information identifying specified categories of persons engaged in or assisting in the foreign intelligence activities of the United States. Section 2. Statement of Findings Section 2 of the bill lists a number of "findings" that underscore the impor- tance of maintaining the confidentiality of certain relationships between the foreign intelligence components of the federal government and their officers, employees, agents and sources of information. The "findings" emphasize that the success of these entities in performing their vital intelligence gathering mission and the physical safety and well-being of the individuals involved de- pend on the preservation of the confidentiality of such relationships. Section 3. Amendment to Title 18 Section 3 of the bill would amend Title 18 of the United States Code to add a new Chapter 38 containing two criminal offenses involving the disclosure of information identifying covert agents. The two new criminal offense provi- sions, 18 U.S.C. ?? 801 and 802, and an accompanying definition section, 18 U.S.C. ? 800, are discussed below. 1. 18 U.S.C. ? 800.-Definitions This section sets forth definitions of five key terms used in the new criminal offenses that would be created by the bill. The first defined term, "discloses," means to reveal to any unauthorized person by any means whatsoever, including publication in the press or other public information medium. The definition of "discloses" is intended to avoid any ambiguity regarding the means and manner of communication of information covered by the new criminal prohibitions contained in the bill. See New York Times Co. v. United States, 403 U.S. 713, 720-22 (1971) (Douglas, J., concurring) (concluding that 18 U.S.C. ? 793(e) does not encompass "publication") ; 437-40 and n.9 (White, J., concurring). "Discloses," as used in the bill, also incorporates a requirement that the com- munication be made to an "unauthorized" person. Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003ROO0200080008-0 "Unauthorized," in turn, is defined in section 800(b) to mean without author- ity, right, or permission pursuant to statute, Executive Order, court order, direction of the head of a department or agency engaged in foreign intelligence activities, or resolution of the Senate or House assigning primary responsibility for the oversight of intelligence activities. The term "unauthorized" is intended to exclude from the coverage of new criminal provisions communications made to persons with appropriate security clearances or who have been accorded authority to obtain access to information identifying covert agents by any of a variety of responsible persons or entities. The revelation of a covert agent's identity to a person who has an appropriate security clearance would not, for example, be "unauthorized" and thus would not constitute a "disclosure" even if the person did not have a need to know the specific information. Such com- munications may provide a predicate for administrative action regarding the mishandling of sensitive information involving agents' identities, but are not made criminal by the bill. The definition of "discloses" and "unauthorized" would permit the disclosure of agents' identities to, among others, the Mem- bers and appropriate personnel of the Senate and House intelligence commit- tees, to various Executive Branch entities with intelligence responsibilities a^' to federal courts pursuant to court orders. Proposed section 800(c) defines "covert agent" to mean "any present or former officer, employee or source of an intelligence agency or member of the Armed Forces assigned to duty with the intelligence agency (1) whose present or former relationship with the intelligence agency is protected by the maintenance of a cover or alias identity, or, in the case of a source, is protected by the use of a cladestine means of communication or meeting to conceal the relationship and (ii) who is serving outside the United States or has within the last five years served outside the United States." This definition delimits the relevant class of intelligence identities for purposes of the two new criminal offenses that would be created by the bill. The requirement of "the maintenance of a cover or alias identity" for officers, employees and sources of intelligence agencies or of "the use of a clandestine means of communication or meeting to conceal the relation- ship" for sources and the requirement of service outside the United States are intended to restrict the coverage of the bill's criminal prohibitions to the pro- tection of important confidential foreign intelligence relationships. The definition is not intended to reach employees or officers of intelligence agencies simply be- cause their relationship with the intelligence entity is not publically or officially acknowledged. Nor are persons who contract to supply or who volunteer informa- tion to intelligence agencies brought within the class of protected identities unless the cover of clandestine means of communication and the service outside the United States requirements are satisfied. Section 800 (d) defines "intelligence agency" to include the Central Intelligence Agency or any foreign intelligence component of the Department of Defense. Section 800(e) defines "classified information" to mean any information or material that has been determined by the United States government pursuant to an executive order, statute, or regulation, to require protection against un- authorized disclosure for reasons of national security. 2. 18 U.S.C. ? 801.-Disclosure of Intelligence Identities. This section would make it a criminal offense, punishable by a fine of not more than $50,000 and/or imprisonment for not more than ten years, for any person knowingly to disclose information that correctly identifies another person as a covert agent where the defendent acts with knowledge that the disclosure is based upon classified information. In order to establish an offense under this section, the government would be required to prove (1) that the defendant had obtained access to classified information identifying another person as a covert agent, (2) that the defendant knowingly revealed or communicated that informa- tion in any manner to another person, and (3) that the person to whom this information was revealed was not authorized to receive it. In proving these ele- ments of the offense the government would be required to demonstrate that the information disclosed by the defendant correctly identified another person as a covert agent and that the defendant was aware that the information he disclosed came from classified materials. The offense applies to the disclosure of information that correctly identifies another person as a covert agent. In the case of information that indirectly identifies a covert agent, the government would be required to establish that the defendant was aware that the information he disclosed would reveal the identity Approved For Release 2008/10/31: CIA-RDP85-00003ROO0200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 of a covert agent. The government would not be required to prove that the information was properly classified, since the sensitive nature of the information disclosed and the adverse impact of the disclosure on the United States will be demonstrated by proof that the defendant exposed the identity of a person who in fact is a covert agent. The offense created by proposed section 801 is similar in approach to the of- fense now set forth in 18 U.S.C. ? 798 concerning classified communications intelligence information. That section provides that anyone who "knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes . . . any classified information" concerning various specified communications and crytographic intelligence matters "[s]hall be fined not more than $10,000 or imprisoned not more than ten years, or both." The proposed section 801 reflects a judgment that the knowing disclosure of classified information revealing the identities of covert agents merits treatment on a par with that prescribed by Congress to protect against the compromise of sensitive communications intelligence information. The offense created by pro- posed section 801 is expressly made applicable to extraterritorial conduct of United States citizens and permanent resident aliens. The proposed section would also make it an offense to attempt to disclose in- formation that correctly identifies another person as a covert agent with knowl- edge that the disclosure would be based on classified information. This attempt provision would permit prosecution of persons who, with the state of mind re- quired for the commission of the offense, take a substantial step forward making such a disclosure but are prevented from completing the offense. It should be noted that the attempt provision is not intended to permit prosecution of per- sons who disclose information that incorrectly identifies another person as a covert agent. 3. 18 U.S.C. ? 802.-Disclosure of Intelligence Identities by Government Employees. This section would create a second offense applicable to persons who are or have been an employee of the United States government with access to informa- tion revealing the identities of covert agents. This narrow class of persons would be subject to prosecution for knowingly disclosing information correctly identi- fying another person as a covert agent. The penalty for this offense is a fine of not more than $25,000 and/or imprisonment for not more than five years. Under this section, the government would be required to prove (1) that the defendant is or had been an employee of the United States with access to information revealing the identities of covert agents, (2) that the defendant knowingly re- vealed or communicated information that correctly identifies another person as a covert agent, and (3) that this information was revealed or communicated to a person not authorized to receive it. The offense under section 802 differs from the section 801 offense in that it applies to a much narrower class of persons and does not require that the dis- closure be based on classified information. Unlike other Americans, persons coming within the reach of section 802 occupy or have occupied positions of trust within the government and have obtained first-hand knowledge regarding the identities of covert agents. Such persons are or have been in a position to learn how the United States establishes cover identities for its agents abroad and conceals its relationships with foreign intelligence sources. To permit such per- sons to employ inside government information and expertise in disclosing the identities of covert agents would pose a serious threat to the maintenance of vital, secret intelligence relationships. Disclosures of information identifying covert agents made by such persons, even after they have left government em- ployment, will be imbued with an aura of credibility derived from their govern- ment service and are more likely to be accurate than disclosures made by ordinary citizens. As a result, additional restrictions are warranted for this narrow class of persons. The more severe penalties of section 801 would, of course, remain available in situations where disclosures of intelligence identities by present or former government employees are knowingly based on classified information. Like section 801, the offense created by section 802 would be applicable to conduct outside the United States. In addition, the proposed section would also make it an offense for a present or former government employee within the class covered by section 802(a) to attempt to disclose information identifying another person as a covert agent. This attempt provision, like the provision in proposed section 801(a) , would permit prosecution of persons who, with the state of mind Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0 required for the commission of the offense, take a substantial step toward making such a disclosure but are presented from completing the offense. The attempt provision would not reach persons who incorrectly state that another person is a covert agent. The application of the general federal accomplice and conspiracy sections, 18 U.S.C. ? 2 & 371, would reach persons outside the narrow class of present and former government employees who are covered by section 802(a) only where such persons knowingly join with a covered person to effectuate the disclosure of information identifying covert agents. As a result of these general criminal liabiliay provisions, the proposed bill would serve to deter persons from in- tentionally assisting present or former government employees subject to the strictures of section 802(a) In disclosing information identifying covert agents. This section, together with section 801, will provide clear guidance to persons involved in discussion and debate regarding our nations' intelligence activities. Any article, book, speech, or other "disclosure" not knowingly based on classi- fied information or made by a present or former government employee coming within the class described in section 802 will be unaffected by the proposed legislation. 0 Approved For Release 2008/10/31: CIA-RDP85-00003R000200080008-0