Wrong way to protect spies

Legitimate reporters and scholars could be criminally prosecuted along with traitorous informers under legislation to protect spies that is now on the way to a congressional conference committee. The version passed by the Senate last week is similar to the earlier House version. It fails to include proposals that could have helped to safeguard First Amendment rights of free speech.

Before the court tests that are sure to come, there remains one small immediate hope for limiting the act's potentially harsh and chilling consequences: that the conference committee agree on a report specifying a clear and well-defined interpretation of what Congress intends by the present ambiguously inclusive language. This would become part of the legislative history to which future courts would turn in connection with prosecutions under the act.

As it is, the bill calls for a three-year prison term and $15,000 fine for journalists or anyone else who discloses any information that identifies an individual agent - not necessarily even naming the name. The Senate voted down an amendment requiring at least an ''intent'' to harm to United States intelligence activities. It went along with the House criterion of mere ''reason to believe'' that such activities would be harmed.

Sponsors say the targets of the criminal penalties are publications that make a business of listing the names of secret agents. But, with such sweeping language, the threat to newsgathering activities is evident. In the course of investigating violations of rights by the CIA, for example, reporters might well convey information that appears to be covered by the act. Even if this were derived from unclassified sources in the public domain, they could be prosecuted - an extraordinary incursion on First Amendment guarantees.

Supporters of the Senate bill have argued that such reporters need not be concerned, because the act refers to ''a pattern of activities.'' Yet the context seems to enlarge the net rather than reduce it. It does not appear to mean only an ominous pattern over time but the kind of pattern that any reporter might follow in checking out a single story - going to sources, talking with people.

Here is where the conference report could help bx pinning down the legislative intention in line with what Senate sponsor John Chafee himself said: ''Nobody need fear prosecution other than those in the business of naming names.'' He described the bill as directed at those whose main purpose was to expose secret agents and not those whose main purpose was to report the news or unearth wrongdoing. The Senate rejected an amendment that would have spelled out this interpretation. Clarification by the conference committee is in order.

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