This CRS Insight provides background and issues facing Congress concerning U.S. restrictions on the use of journalists for intelligence purposes. Congress may examine whether existing statutory provisions sufficiently protect overseas U.S. journalists and others from a perception by adversarial governments of an individual's affiliation with the U.S. intelligence community.
Background
Wall Street Journal reporter Evan Gershkovich continues to be held by Russian authorities more than a year after being arrested in late March 2023 on charges of espionage. The U.S. Department of State determined that Gershkovich is "wrongfully detained" and that the U.S. government will provide all appropriate support to secure his release.
Prior to the mid-1970s, reportedly it had been a practice of the Central Intelligence Agency (CIA) to use American journalists for intelligence collection purposes. These reports raised questions about whether such practices violated the rights of Americans (including to a free press) or unnecessarily endangered American journalists abroad. Following investigations into U.S. intelligence activities by two congressional select committees (chaired by Senator Frank Church and Representative Otis Pike), Congress made a number of recommendations for reforming intelligence policy and oversight, including the recommendation to establish a permanent congressional oversight framework for intelligence activities. It has since been the policy of the intelligence community not to use journalists, clergy, or Peace Corps volunteers for intelligence purposes, other than in exceptional circumstances. The agency's declassified implementing regulations for E.O. 12333, United States Intelligence Activities, state the agency would not use accredited U.S. or foreign journalists, clergy, or Peace Corps workers for intelligence purposes. Open, acknowledged relationships with the clergy and journalists for conducting translation or training services, or (for clergy) religious services, were permitted. The agency also disallowed the use of congressional employees for intelligence purposes without approval from the individual's Member or committee chair.
John Deutch, then-Director of Central Intelligence (DCI), described an exception to this policy in July 1996 testimony for the Senate Select Committee on Intelligence. Deutch expressed reluctance to ever use journalists but defended maintaining an exception in "extremely rare...highly improbable circumstances" that could result in intelligence enabling disruption of an "extreme threat to the Nation."
As the Director of Central Intelligence, I must be in a position to assure the President and the members of the National Security Council and this country, that there will never come a time when the United States cannot ask a witting citizen, knowledgeable citizen, to assist in combating an extreme threat to the Nation. So I, like all of my predecessors for the last 19 years, have arrived at the conclusion that the Agency should not be prohibited from considering the use of American journalists or clergy in exceptional circumstances. (S.Hrg. 104-593, pp. 6-7)
Journalists testifying at the same hearing, citing the CIA's previous record of using journalists for intelligence purposes, expressed the opinion that allowing any exception potentially casts suspicion on anyone working overseas as a journalist, aid worker, or member of the clergy, and puts them at risk of detention or other adverse action by hostile governments. (S.Hrg. 104-593, p. 16)
Legislation
Shortly after this July 1996 hearing, Congress included language in the FY1997 Intelligence Authorization Act (P.L. 104-293 §309, codified as 50 U.S.C. §3324) addressing the use of journalists in intelligence activities. The provision states that it is the "policy of the United States that an element of the Intelligence Community may not use as an agent or asset for the purposes of collecting intelligence any individual who (1) is authorized by contract or by the issuance of press credentials to represent himself or herself, either in the United States or abroad, as a correspondent of the United States news media organization; or (2) is officially recognized by a foreign government as a representative of a United States media organization."
Waiver and Congressional Notification Provision
The statute permits the President to establish procedures (50 U.S.C. §3324(b)) for the President or Director of National Intelligence to waive the policy with respect to an individual upon making a written determination that a waiver is "necessary to address the overriding national security interest of the United States." In the event of a waiver, the Administration is to provide notification to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence.
Voluntary Cooperation of "Any Person"
The statute allows for the voluntary cooperation by "any person" who is aware he or she is cooperating with the U.S. intelligence community. A former Inspector General of the CIA has maintained that the wording of the provision—specifying "any person" knowingly volunteering information to U.S. intelligence—effectively includes members of the clergy and Peace Corps, in addition to journalists. Current CIA regulations do not allow for such relationships with Peace Corps volunteers.
Other Factors
The U.S. Department of State has issued travel advisories for some countries (including, for example, Russia, China, and North Korea) where it assesses U.S. citizens face heightened risk of harassment, detention, and arbitrary enforcement of the law. Hostile foreign governments may particularly target journalists (such as Michael Kovrig and Michael Spavor, in China), clergy or missionaries (Kenneth Bae, North Korea), or other individuals in sensitive positions to gain leverage in negotiating concessions from the United States or other nations, or for domestic reasons. Similarly, the cases of basketball player Brittney Griner (Russia) and former U.S. Marine Paul Whelan (Russia) suggest that U.S. citizens who are high-profile or from military or intelligence backgrounds may face additional risk.
Document ID: IN12369