Spy yarn with a First Amendment snag

If you are a devotee of spy novels -- say Helen MacInnes or John Le Carre -- consider the following: An American investigative reporter exposes bribes by a high-ranking US official to a business executive in a foreign nation. After the story is published, the reporter makes a chilling discovery: The bribery was undertaken to obtain vital intelligence information. What first seemed petty graft turned out to be something far different.

We cite this hypothetical case because of the controversial Intelligence Identities Protection Act now winding its way through the US Congress. The legislation could impose profound, and dangerous, restrictions on constitutionally guaranteed rights of free speech and a free press within the United States. In the above example the reporter writing the story could actually be guilty of a serious national security infraction, notwithstanding his unearthing of graft.

At issue is a difficult problem. How does a free society go about protecting the identity -- and safety -- of its covert intelligence agents while at the same time preserving freedom of speech and publication? A proper balance of interests is the key. The founding fathers, it must be noted, were explicit in their endorsement of maximum freedom of expression in the First Amendment to the Constitution, which says that Congress shall make no law "abridging the freedom of speech, or of the press. . . ." By enacting legislation along the lines of the identities act, Congress could undermine the First Amendment guarantees that have so long differentiated the US from other nations.

The legislation (as now being weighed by lawmakers in both the Senate and House), would impose severe criminal sanctions for exposing undercover US intelligence operatives. A particularly disturbing aspect of the act is that it would impose criminal sanctions of any privatem citizen who publicly identifies a covert US agent. The criminal liability would accrue even if the citizen used merely public information or private sources, as distinct from classified or official documents. To ease the impact of this provision on the press, the legislation provides that the disclosure by a private citizen is a crime if made "in the course of an effort to identify and expose covert agents with the intent to impair or impede the foreign intelligence activities of the United States. . . ."

We agree with those civil libertarians, press organizations, and concerned lawmakers who do not find the latter provision an adequate legal "safe harbor" against the possibility of retributive or restrictive measures against the news idea. Such measures could be taken either by an administration overzealous in its pursuit of "national security" or, worse still, by an administration tempted to cover up wrong-doing under the guise of protecting covert agents. The effort of the Nixon administration to hide Watergate malfeasance behind a national security cloak is an instructive reminder of what officialdom is capable of.

However, we are not unmindful of the legitimate security questions involved -- and the need for the highest sense of responsibility on the part of news idea. It is reprehensible that there are those within the press who would knowingly identify the names of US intelligence agents without taking into account what disclosure might mean to the lives of those individuals.

But Congress must be careful not to write into the statute books absolute restrictions closing off to public comment any type of identification of intelligence agents. It is up to intelligence agencies, after all, to do a better job of providing cover for their operatives.

There should be no tampering with the First Amendment, a constitutional guarantee that helps ensure national security in the most fundamental sense -- the security deriving from freedom and the responsible exercise of it.