New Leak Case Relies on 1982 Law on Intelligence Identities

Updated below

Former CIA officer John Kiriakou this week became the latest person to be charged under the Espionage Act with unauthorized disclosures of classified information.  But unlike the previous defendants, Mr. Kiriakou was also charged with violating the Intelligence Identities Protection Act for allegedly disclosing the identity of a covert intelligence officer to a journalist.

The Intelligence Identities Protection Act was enacted in 1982 to combat the efforts of Philip Agee and his colleagues to expose CIA personnel around the world.  The Act made it a felony to reveal the names of “covert agents,” i.e. intelligence officers who are under cover and whose identities are classified information.

But until now, the Act has never been used in a contested prosecution.  “There do not appear to be any published cases involving prosecutions under this act, despite some high-profile incidents involving the exposure of U.S. intelligence agents,” according to a Congressional Research Service report on the subject from last year.

(There has, however, been one conviction under the Act.  In 1985, former CIA clerk Sharon Scranage pleaded guilty to providing classified information in violation of the Act concerning U.S. intelligence operations in Ghana.  She served two years in jail.)

The Intelligence Identities Protection Act is one of the very few classification-related statutes that purport to apply to anyone, not only to government officials who possess authorized access to classified information.  The language of the Act explicitly indicates that it also applies to private individuals — reporters, researchers, or anyone else — who expose covert agents, if they do so as part of a “pattern of activities” and with the requisite knowledge and intent.

In the present case, Mr. Kiriakou is charged with providing the name of a “covert agent” in response to inquiries from a reporter, “Journalist A,” who then passed that information on to defense attorneys at Guantanamo.  (The attorneys used the information in a classified pleading that they filed in 2009, which is what first brought the unauthorized disclosure to official attention.)

An FBI affidavit attached to the criminal complaint against Kiriakou states repeatedly that no laws were broken by the defense team that received the classified information.  The FBI notably does not volunteer the same assurance concerning Journalist A (whose name is not yet on the public record), who actively solicited the proscribed information from Kiriakou and forwarded it to the defense attorneys.

But Journalist A would presumably not be subject to the Intelligence Identities Protection Act because his efforts were not part of a systematic effort to expose classified identities. (The name of the covert agent that he allegedly elicited and conveyed to the defense team at Guantanamo has not been publicly disclosed.)

According to the Congressional Research Service report, the Act “would appear to preclude the prosecution of a recipient of covered information, whether solicited or not, who publishes the information but has not engaged in a prohibited ‘pattern of activities’ intended to disclose the names of covert agents.”

The CRS report also makes the curious observation that “It is not an offense for… a covert agent to disclose his or her own identity.”  See Intelligence Identities Protection Act, January 28, 2011.

Mr. Kiriakou is the sixth individual to be charged in the Obama Administration’s unprecedented campaign against leaks of classified information to the media, following Shamai Leibowitz, Jeffrey Sterling, Thomas Drake, Bradley Manning and Stephen Kim.  Among other things, the Administration’s aggressive pursuit of leaks represents a challenge to the practice of national security reporting, which depends on the availability of unauthorized sources if it is to produce something more than “authorized” news.

Update: The Intelligence Identities Protection Act was criticized in a April 6, 1982 op-ed by then-Senator Joseph Biden entitled “A Spy Law That Harms National Security.” (h/t Historiographic Anarchy)

4 Responses to “New Leak Case Relies on 1982 Law on Intelligence Identities”

  1. Norman January 25, 2012 at 6:12 PM #

    Wouldn’t Dick Cheney also fall under this act?

  2. Chuck January 26, 2012 at 1:23 AM #

    Don’t you mean Richard Armitage?

  3. Louis Wolf January 26, 2012 at 2:45 AM #

    When the then-CIA deputy director Frank Carlucci announced on national television that the CIA had written and delivered to the Congress the original language of what became the Intelligence Identities Protection Act as enacted, it demonstrated the gap between our Congress writing legislation as opposed to the Central Intelligence Agency writing legislation. The IIPA constituted a bill of attainder, which was specifically prohibited by the Founding Fathers.

    In our case at CovertAction Information Bulletin at the time, the identification of active CIA personnel was not guesswork but rather was derived entirely from detailed analysis of public sources and was not based on any single access to classified information. That was a further extension of what made the law unconstitutional then.

    The CIA even testified before Congress that the identifications made in the magazine were “substantially correct”.

    It is very regrettable that the Obama administration is now clearly applying that unconstitutional law in a political way.

  4. Leslie Rondin January 27, 2012 at 3:49 PM #

    All of the protection goes to the very organization that has unlimited authority to call the shots with regard to who they deem the opponent or enemy to be targeted whether for study, surveillance, hindering or worse – including death. The fact that the executive branch looks on approving at the same time that the legislative and judicial branches have bowed out with regard to exercising restraining critique is not to anyone’s good. How does the organization get genuine feedback over time with regard to both the setting of goals and steady accomplishments that are more than the serpent chasing its tail as it widens its circumference? It becomes more and more a deadly game that begins to take on features of the wild at a time when the genuine wild and the genuine civil realms are shrinking as fast as glaciers.