The Senate yesterday took up an oft-delayed bill to outlaw naming U.S. intelligence agents, with all signs pointing to a close vote on the one issue that has held up enactment.
The issue involves the standard to be required for criminal prosecutions of journalists and other outsiders who disclose information that serves to identify a "covert agent."
The Senate Judiciary Committee narrowly voted last fall to criminalize only those disclosures made with "the intent to impair or impede the foreign intelligence activities of the United States by the fact of identification and exposure."
But Sen. John H. Chafee (R-R.I.) has been pressing, with CIA support, for a broader rule, allowing prosecutions of disclosures made "with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States."
Either standard would provide for a penalty of up to three years in prison and a $15,000 fine, even when the information is gleaned from unclassified sources such as old editions of the State Department's Biographic Register.
Leading off yesterday's debate, Sen. John P. East (R-N.C.) praised Chafee's proposal as "good . . . solid . . . constitutional language" that at the same time would enable prosecutors to fend off claims of a "noble" purpose on the part of defense lawyers.
"We ought to err on the side of protecting these gentlemen in the intelligence agencies and protecting the national security interest," East declared. "Whatever the intrusions on constitutional rights here, they are modest and gentle."
Sen. Joseph R. Biden Jr. (D-Del.) contended, however, that the proposed "reason-to-believe" rule would cast far too broad a net, extending even to disclosures of corruption within the intelligence community and effectively preventing publication of many newsworthy stories.
"This is not a matter of semantics," Biden protested. Journalists, he said, "are not ready to throw themselves on a sword. They are as cowardly as the rest of us. This Chafee amendment will have a chilling effect, and that is not good for America."
Sen. S. I. Hayakawa (R-Calif.) suggested that Biden forgo any talk about semantics.
"Leave that determination to me," he advised Biden. "I have written five books about the subject."
Biden said that reminded him of the old saw about wars being too important to be left to the generals.
"Maybe semantics is too important to leave to people who write books about it," he told Hayakawa.
Sen. Henry M. Jackson (D-Wash.), chief co-sponsor of the Chafee proposal, repeatedly disagreed with Biden about the impact of the language, which the House approved last fall. Jackson insisted, for instance, that a 1980 New York Times story, which named CIA officers in South Korea reportedly aware of influence-buying in Congress, would not necessarily run afoul of the standard.
He said a jury could still determine whether the reporter's "objective was to uproot corruption" and thus let him off the hook even if he "incidentally" named a covert agent or two.
Biden maintained this would be possible only if Congress enacts a criminal intent standard. Under the "reason to believe" rule, he argued, the prosecutors would have to prove in the face of the Korean story only "that such disclosures would impede . . . the effectiveness of the CIA in Korea."
Chafee reportedly is confident of 44 votes for his amendment and thinks he can win over enough "undecided" senators to put it across. A recent count for the other side showed 41 favoring a criminal intent standard, 36 for Chafee and more than 20 undecided, although more of the "undecideds" were counted as leaning to Chafee.