Statutory Restrictions on the Use of Journalists for Intelligence Purposes

Statutory Restrictions on the Use of Journalists for Intelligence Purposes

INSIGHTi

Statutory Restrictions on the Use of
Journalists for Intelligence Purposes
May 1, 2023
On March 29, 2023 Russian authorities arrested Wall Street Journal reporter Evan Gershkovich and
charged him with espionage. The U.S. Department of State subsequently determined that Gershkovich is
"wrongfully detained" and that the U.S. government will provide all appropriate support to secure the
journalist’s release.
This Insight provides background and issues facing Congress concerning U.S. statutory restrictions on the
use of journalists for intelligence purposes. Congress may examine whether existing statutory provisions
sufficiently protect overseas U.S. journalists from the perception by adversarial governments or non-state
actors of affiliation with the U.S. intelligence community.
Background
Prior to the mid-1970s, reportedly it had been a practice of the Central Intelligence Agency (CIA) to use
journalists for intelligence collection purposes. However, following the investigations into past United
States intelligence activities by two congressional select committees (chaired by Senator Frank Church
and Representative Otis Pike), it has seemingly been the policy of the intelligence community not to use
journalists, clergy, or aid workers for intelligence purposes, other than in “exceptional circumstances.” A
declassified CIA regulation from 1987, for example, states that 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 allowed. (AR 2-2, Law and Policy Governing the Conduct of Intelligence
Activities, December 23, 1987, pp. 27-30, at
https://www.cia.gov/readingroom/docs/DOC_0006235713.pdf )
The exception to this policy was described in July 1996 testimony for the Senate Select Committee on
Intelligence by John Deutch, then-Director of Central Intelligence (DCI). Deutch expressed his reluctance
to ever use journalists. Nevertheless, he defended maintaining an exception in “extremely rare...highly
improbable circumstances” that could result in intelligence enabling disruption of an “extreme threat to
the Nation.”
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[A]s 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)
Legislation
Shortly after Director Deutch’s testimony, in October 1996, Congress included language in the FY1997
Intelligence Authorization Act (P.L. 104-293 § 309, codified as 50 U.S.C. §3324) concerning use of
journalists in intelligence activities. The provision is captioned “Prohibition on using journalists as agents
or assets,” and 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.” The prohibition
covers these individuals in the United States or abroad. This provision covers any individual with press
credentials of a United States media organization or who may be 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 also allows for the voluntary cooperation by “any person” who is aware he or she is providing
such cooperation to the United States intelligence community. A former Inspector General of the Central
Intelligence Agency 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 (L. Britt Snider, The Agency and the Hill: CIA’s Relationship with
Congress, 1946-2004, Washington D.C.: Center for the Study of Intelligence, p. 245).
Potential Issues for Congress
 Congress may consider whether the restrictions on intelligence community usage of
journalists as agents or assets should extend to overseas freelance or unaffiliated U.S.
journalists.
 Congress may consider whether U.S. members of the clergy, Peace Corps, and other U.S.
aid organizations warrant similar explicit statutory protections.
 Congress may consider whether the waiver provision in 50 U.S.C. §3324(b) provides a
pretext for a foreign government to detain U.S. citizen journalists, clergy or Peace Corps
volunteers on suspicion of being associated with intelligence.

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Author Information

Michael E. DeVine

Analyst in Intelligence and National Security

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