How far are Americans willing to erode the First Amendment's right of free speech in order to preserve the cover of secret agents and informants? Do they feel it should be a crime for a newspaper reporter or other private citizen to disclose such a person's identity even if the information came from public, unclassified sources? These are among the questions that will persist if, as expected, the Senate goes along with the House and passes the Intelligence Identities Protection Act in a vote scheduled for today.
To be sure, the Senate could improve a bad bill by sticking with its own Judiciary Committee's version of a key passage - and rejecting Senator Chafee's proposed amendment to revert to the House's language. The Judiciary Committee would at least require proof that the intent of any disclosure was to impair United States intelligence activities. The House bill and the Chafee amendment, supported by the White House, would broaden the net to catch anyone who merely had reason to believe that disclosure would impair intelligence activities.
The ''intent'' standard would presumably be sufficient to reach the mischievous or sinister exposers who seek to harm US intelligence. The ''reason to believe'' standard could be made to apply to scholars and investigative reporters who might name names but whose larger intention would be to reform or improve intelligence operations. To criminalize all such disclosure would have worked against the past reforms of intelligence agencies and could prevent future ones.
It must be stressed that this is not just the disclosure of classified information - but of information obtained through public sources. To deny Americans citizens the right to put forth such information may be sufficient in itself to render the act unconstitutional.
When such prohibitions are combined with the act's provisions curbing whistle-blowing by present and former intelligence personnel, the possibilities for agency evasion of accountability are multiplied. But there has been little debate on such provisions against naming names by persons with access to classified material. They ought to cooperate in preserving the cover of their colleagues.
It is the criminalizing of disclosures by persons without access to classified information that creates the most controversy. The question is how the important matter of protecting the identities of secret agents can be handled without eroding constitutional rights. One theme in congressional testimony has been the responsibility of the intelligence agencies to devise better cover for the agents - cover that cannot be broken by means of public sources of information. Indeed, the act contains a provision requiring the president to give agents better cover and requiring government agencies to provide it when the president asks them to.
If American citizens can find out from the public record who their secret agents are, it hardly seems likely that interested adversaries cannot. To solve the problem demands more than turning Americans into criminals for passing on such information.