Intelligence Identities Protection Act

History

The law was written, in part, as a response to several incidents where Central Intelligence Agency (CIA) agents or officers' identities were revealed. Under then existing law, such disclosures were legal when they did not involve the release of classified information. In 1975, CIA Athens station chief Richard Welch was assassinated by the Greek urban guerrilla group November 17 after his identity was revealed in several listings by a magazine called CounterSpy, edited by Timothy Butz. A local paper checked with CounterSpy to confirm his identity. However, the linkage between the publication of Welch's name and his assassination has been challenged by pundits that claim he was residing in a known CIA residency.

Another major impetus to pass the legislation was the activities of ex-CIA case officer Philip Agee during the 1960s and 1970s. Agee's book CIA Diary and his publication of the Covert Action Information Bulletin (CAIB) blew the cover of many agents. Some commentators say the law was specifically targeted at his actions, and one Congressman, Bill Young, said during a House debate, "What we're after today are the Philip Agees of the world."

The law passed the House by a vote of 315–32, with all opposing votes coming from Democrats. The law passed the Senate 81–4, with the opponents being Democratic Senators Joseph Biden, Gary Hart, and Daniel Patrick Moynihan, and Republican Senator Charles Mathias. Biden had written an op-ed column in the Christian Science Monitor published on April 6, 1982 that criticized the proposed law as harmful to national security.

As of January 2013, there have been only two successful prosecutions involving the statute. In 1985, Sharon Scranage, a secretary in the CIA's office in Accra, Ghana, was sentenced to five years and served eight months, for giving the names of other agents to her boyfriend in Ghana. In January, 2013 John C. Kiriakou, a former CIA officer, who accepted a plea bargain, is serving a prison sentence for disclosing the name of another CIA officer to a reporter.

First Amendment implications

The criminal provisions of the act are contained in 50 U.S.C. § 421. During Congress's consideration of the measure, much attention is paid to subsection 421(c), which states:

421(c) Disclosure of information by persons in course of pattern of activities intended to identify and expose covert agents.

Whoever, in the course of a pattern of activities intended to identify and expose covert agents and with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States, discloses any information that identifies an individual as a covert agent to any individual not authorized to receive classified information, knowing that the information disclosed so identifies such individual and that the United States is taking affirmative measures to conceal such individual’s classified intelligence relationship to the United States, shall be fined under Title 18 or imprisoned not more than three years, or both.

Under this subsection, journalists and political commentators alike could be prosecuted should they show an effort towards discovering or revealing identities of covert agents. However, it was ultimately concluded by the Senate Judiciary and the Conference Committee that the measure is constitutionally sound. Individuals would only be prosecuted if they engage in a pattern of activities intended to identify and expose covert agents, on the grounds that such actions goes beyond information that might contribute to informed public debate on foreign policy or foreign intelligence activities.

The Conference Committee assured that U.S. intelligence critics would be beyond the reach of law so long as they do not actively seek to identify or expose covert agents. However, commentators are still wary of the measure, finding 421(c) standard over-broad since it lacks a 'specific intent requirement' and instead relies on a 'reason to believe' standard.

Valerie Plame affair

Between 2003 and 2007, an investigation was conducted by prosecutor Patrick Fitzgerald into whether this law and others were violated in the identification of Valerie Plame as a CIA operative in a 2003 newspaper column by Robert Novak. As a result of the investigation, former Vice Presidential Chief-of-Staff "Scooter" Libby was convicted on two counts of perjury, one count of obstruction of justice and one count of making false statements to federal investigators and sentenced to thirty months in jail. In a court filing related to Libby's sentencing, the CIA stated that Plame was a covert agent at the time of the leak. In addition, the leak enabled the identification of Plame as an employee of the CIA front company, Brewster Jennings & Associates, and in doing so enabled the identification of other CIA agents who were "employed" there.

John Kiriakou

A former CIA officer, John Kiriakou, was charged and convicted under the Intelligence Identities Protection Act. On Tuesday, October 23, 2012 Kiriakou pleaded guilty to violating the Intelligence Identities Protection Act.

As part of a plea agreement, Kiriakou accepted a 30-month prison term, while the charges filed under the Espionage Act were dropped. He was sentenced on January 25, 2013. This is the first conviction of a CIA officer under the Intelligence Identities Protection Act in 27 years.