SECRECY NEWS
from the FAS Project on Government Secrecy
October 4, 2001

DISCLOSURE OF AGENT IDENTITIES CALLED "TERRORISM"

Can even the vilest form of speech be considered "terrorism"?

One wouldn't think so, but that is the upshot of the expanded definition of terrorism in a bill now pending before Congress.

Specifically, the bill defines the unauthorized disclosure of the identities of clandestine intelligence agents as terrorism if it is intended to influence the conduct of goverment behavior or retaliate against the government.

There is of course a consensus that the disclosure of "covert agents," particularly with intent to harm the United States, is a bad thing to do. That is why there is already a law that prohibits it, which is called the Intelligence Identities Protection Act.

But the relation between unauthorized disclosures of agent names and terrorism is hard to discern.

"This is a speech crime which has no place in this list [of terrorist activities]," said Morton H. Halperin, a former Pentagon and State Department official who is now at the Council on Foreign Relations in Washington.

If it is already against the law, does going further to define the disclosure of agent identities as "terrorism" make any difference? In fact, it does.

In testimony before the Senate Judiciary Committee on October 3, Mr. Halperin noted that Congress had carefully crafted the Intelligence Identities Protection Act back in 1982 "to ensure that it would not prevent the press from publishing information it had acquired by legitimate means. For example, Congress inserted a bar on conspiracy provisions so that a reporter could not be accused of conspiring with a source."

"This protection and many others would be swept away if this crime remains on the list of federal terrorism crimes," he said.

The House version of the anti-terrorism legislation, known as the "Provide Appropriate Tools Required to Intercept and Obstruct Terrorism (PATRIOT) Act of 2001," addresses the disclosure of agent identities at Section 301a. See the full text of the legislation here:

Morton Halperin's testimony before the Senate Judiciary Committee is posted here:


SENATE EASES DOE POLYGRAPH POLICY

Buried in the Defense Authorization Act approved by the Senate this week is language that would repeal the Department of Energy's controversial polygraph policy and replace it with a more measured polygraph program.

Under the new interim procedures, anyone who does not have routine access to "Top Secret Restricted Data" could be exempted from polygraph testing. In practice, there is very little information that is classified at the TS/RD level.

The legislation directs the Secretary of Energy to develop a new counterintelligence polygraph policy, but wisely refrains from dictating the specific content of that policy.

The text of the new polygraph legislation, which must still be considered in a House-Senate conference, is posted here:

"As we all know, the initial response prompting ... the polygraph program ... was the situation of security breaches in our nuclear laboratories," said Senator Jack Reed on September 24. "We hope and believe that is a thing of the past."

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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