The death penalty for spies is on the verge of being reenacted, but federal prosecutors and intelligence officials are giving it a chilly reception, saying most spies cooperate without it.
There was little open opposition -- but also little enthusiasm -- as the House and Senate put capital punishment for espionage into their crime bills.
Some supporters of death sentences admit that this punishment rarely may be imposed, but say it could provide a lever to gain cooperation through plea bargains.
Prosecutors, however, say they have no trouble getting spies to plead guilty. Indeed, the last completed espionage trial came in 1988. In the last decade, prosecutors have obtained 26 guilty pleas and six trial convictions.
Others predict the biggest spy cases will ignite a battle between an angry public and Congress demanding a death sentence and U.S. intelligence agencies seeking lesser penalties so that spies will agree to describe the damage they caused to U.S. security interests.
Friction between the Justice Department and the CIA already was aggravated by back-biting over how Aldrich H. Ames managed to spy for Moscow for nine years inside the CIA. It could get worse because Justice and CIA officials are pursuing leads about other moles.
The last spies executed were Julius and Ethel Rosenberg in 1953. But government charges that Ames caused the execution of at least four U.S. agents renewed questions about the death penalty.
Top Clinton administration officials have offered a cold reception.
Asked if she supports the death penalty for espionage and why it is needed, Attorney General Janet Reno replied, "The president supports the death penalty."
Should foreign spies be put to death?
CIA Director R. James Woolsey: "The death penalty question is really not one for the CIA; it's one for the Congress."
Does the administration want to bring back death for spies?
Deputy Attorney General Jamie S. Gorelick: "That was under consideration in some form... . I am not personally knowledgeable as to where that stands."
Gorelick spoke two weeks after a provision renewing death-for-espionage passed the House last month as part of a massive crime bill labeled President Clinton's top law enforcement priority.
The Senate late last year passed its crime bill also containing a similar death-for-espionage provision designed to overcome a 1972 Supreme Court decision that invalidated death penalties as then written.
The legislation, now headed for conference, is too late for Ames. But Gorelick insisted "we have imposed a very, very strong sanction on Mr. Ames" -- life in prison without parole and forfeiture of most assets.
That was not stiff enough for Sen. Hank Brown (R-Colo.), who blasted the deal that obtained Ames's guilty plea and his help in assessing damages.
"It is an outrage ... that the Justice Department did not even attempt to get the death penalty," Brown wrote Reno.
Years ago, Justice Department lawyers concluded that all federal death penalties were unenforceable until rewritten to include safeguards required by the court's 1972 decision. Those safeguards include a provision for two defense attorneys; separate proceedings for trial and sentencing; and identification of factors that make the death penalty more or less deserved.
Prosecutors who have handled spy cases privately anticipate being put in the middle, with the biggest spies generating the most pressure for a death penalty but also pressure from separate quarters for a lesser sentence in a deal to help assess damages.
"Congressmen will be screaming, 'We gave you the death penalty; why don't you use it?' " said Ames's attorney, Plato Cacheris. "But it will be self-defeating because, confronted with death, any defendant will fight. And the government will never get the cooperation it needs."
But a sponsor, Rep. Charles E. Schumer (D-N.Y.), chairman of the House Judiciary Committee's crime subcommittee, said, "You don't shy away from a penalty just because prosecutors may be pressured one way or another."
"It's a very tough call," said former CIA director Stansfield Turner. "I suppose I'd probably advocate having it on the books and letting the chief executive take the rap for bargaining for something less."
But the FBI's Harry Brandon, who retired this year as deputy chief of counterintelligence and has seen spies confess right after arrest, said restoring death sentences "could keep people from confessing and cooperating."
"It isn't likely to be used much," Schumer acknowledged. "It should be the ultimate penalty."