A bad piece of legislation made some progress on the road to enactment last week. The House accepted a conference report on a bill that makes it a crime to disclose information identifying certain American intelligence officers, agents, informants and sources. The prohibition applies to private citizens as well as government employees and even covers information that is not classified. Supporters intended to put a stop to the activities of a small band of individuals--former CIA agent Philip Agee among them--who have revealed the names of over 2,000 American agents with the express purpose of destroying the American foreign intelligence apparatus. But this bill goes far beyond that narrow objective by eliminating the element of intent from the crime.
Both House and Senate committees reported bills that would have required prosecutors to meet a standard of proof that includes "intent to impair or impede the foreign intelligence activities of the United States." On the floor of each house, however, this was changed so that a person could be convicted simply because he had "had reason to believe" that damage to the intelligence apparatus would occur. In practical terms, this language will inhibit the publication of information on such matters as corruption and illegal or unauthorized activity by intelligence operatives even where there is absolutely no intention of disrupting legitimate intelligence activities.
Because there were minor differences between the House and the Senate versions of the bill-- though not in the section described above--a conference committee was appointed to work out a compromise, which it quickly did. Then it did something quite unusual. It issued a conference report that dealt at great length with a matter that was not in controversy--the government's burden of proof in cases arising under the proposed statute. Both the House and the Senate had rejected the intent standard by record votes. Yet the conferees sought to minimize the meaning of these votes and to assure judges who will be faced with interpreting the statute that it should be viewed narrowly.
"The standard adopted in section 601(c)" the conferees wrote, "applies criminal penalties only in very limited circumstances to deter those who make it their business to ferret out and publish the identities of agents. At the same time, it does not affect the First Amendment rights of those who disclose the identities of agents as an integral part of another enterprise, such as news media reporting of intelligence failures or abuses, academic studies of U.S. government policies and programs, or a private organization's enforcement of its internal rules." Would that it were so.
The conferees, apparently concerned that Congress had gone too far in eliminating the intent standard, made a well-intentioned effort to soften the clear language of the bill. Unfortunately, the courts have to work with the text of the law first. They only look at legislative history if the law is unclear. Even then, in this case they would look at the House and Senate votes to eliminate the intent standard and have a clear understanding of what Congress meant to do. A conference committee report that is at odds with both text and recorded votes is unlikely to be relied on by the courts.
The House has voted to accept the final version of the bill, and the Senate will act soon. Senators cannot duck the important constitutional question presented here by relying on the assurances of the conference report instead of confronting the plain language of the bill. Both should be rejected.