Restrictions on the Use of Journalists for Intelligence Purposes

Restrictions on the Use of Journalists for Intelligence Purposes

INSIGHTi

Restrictions on the Use of Journalists for
Intelligence Purposes
May 30, 2024
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
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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

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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.
Potential Issues for Congress
• Congress may consider whether the restrictions on intelligence community use of
accredited U.S. journalists as agents or assets should extend to overseas non-credentialed
U.S. journalists.
• Congress may consider whether U.S. members of the clergy, Peace Corps, and other
individuals at heightened risk from hostile governments 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 U.S. intelligence.
• Congress may consider whether its oversight bodies, particularly the Senate Select
Committee on Intelligence and the House Permanent Select Committee on Intelligence,
have appropriate access, tools, and authorities to conduct robust and timely oversight of
intelligence activities.

Author Information

Michael E. DeVine

Analyst in Intelligence and National Security

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