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)