CONGRESS IS INTENT upon ending the practice of a few spoilers' exposing the names of the United States' secret intelligence agents. This is a worthy purpose, but it gives rise to a troubling complication. The two main legislative proposals offered to punish namers of names would penalize publication, including in some instances publication of unclassified information available in the public domain, and thus both of the proposals would cut into the integrity of the First Amendment. One of the proposals, however, would cut a good deal less than the other. It is important that Congress recognize this difference as the crucial stage of Senate floor action draws near.
The House last month passed a bill that would criminalize publication of an agent's name merely if there was "reason to believe" publication would impair foreign intelligence activities. This is dangerous legislation. It is not at all difficult to see how language of that sweep and looseness could be applied to journalists or others who brought news of American intelligence to light. Journalists regularly publish information that they suspect will have a negative impact. The First Amendment assures them their right to do so.
The Senate Judiciary Committee has since voted out, 9 to 8, a more acceptable bill. It opens namers of names to prosecution only if they acted with an "intent to impair or impede" intelligence activities. Such an intent--the traditional criminal test-- would hardly be a part of most journalism. Meanwhile, the administration supports an effort to adopt the House bill on the Senate floor.
Supporters suggest that only the House bill would adequately protect the country's secret agents. But this contention is far overdrawn. Either bill in Congress would supply a legal sanction to move against the Philip Agees, the unprincipled people who have made a practice of blowing the cover of American agents in order to disable the CIA. Even the Reagan Justice Department now accepts that there is no potential Philip Agee beyond the prosecutorial reach of the Senate bill; that legislation is, a departmental official says, "enforceable and constitutional."
But where the House bill bites deeply into the First Amendment, the bill reported out of Senate Judiciary bites less severely. The House measure targets not only the Philip Agees but, potentially, also legitimate journalists. The Senate Judiciary bill strikes just at the Philip Agees. That is the reason why, of the two, we believe the Senate Judiciary bill deserves to be carried on the floor. But we trust that senators will note, at least in passing, that both infringe, to one degree or the other, a consitutional right.