Congress is poised to dramatically expand the law that makes it a crime to out some “covert agents” of the U.S. government, a mistake that would have unintended and undesirable consequences not only for the American press but for the U.S. intelligence community as well.
Enacted in 1982 after six years of debate, the Intelligence Identities Protection Act criminalizes the disclosure only of agents whose overseas work means they would be in physical or legal jeopardy were they identified publicly. But a bill passed by the House of Representatives this week would expand the law to cover any intelligence officer, employee, informant, or agent — overseas or not.
Critics of the expansion, which was proposed by the CIA, have focused so far on the threat it poses to the press. The 1982 law was controversial because it does not exempt those people who, like journalists, haven’t taken the government’s oath of secrecy. But a special provision intended to limit the law’s applicability to non-government people says they may only be charged under the law if their disclosure is part of a “pattern of activities” intended to expose covert agents and impede U.S. foreign intelligence activities. By contrast, that limit does not apply to those who have sworn an oath to secrecy, who may be charged if they merely “intentionally” disclose information they know identifies an agent.
The proposed expansion, therefore, may pose its biggest threat to transparency and accountability by dissuading intelligence agency sources and whistleblowers from going public with information about misconduct or even threats to the agencies themselves, like moles.
Under current law, insiders in the intelligence agencies would only be exposed to IIPA liability were there some overseas nexus to the outing. For intelligence officers and employees, the law requires that they be posted overseas currently or at some point in the last five years. For U.S. citizen agents and informants, they must be posted overseas at the time of disclosure.
The CIA’s change would remove that nexus, meaning that intelligence agencies could criminalize the disclosure of the identity of an officer or agent in perpetuity, after they retire and even after they die, by maintaining the classification of their identity.
Were I a public affairs staffer at one of the agencies, I’d be looking twice at this proposed expansion. Though the “insider” provisions require that the individual doing the disclosing “know” that the information reveals the identity of a covert agent, there could be instances where seemingly harmless disclosures — for instance, to a reporter who has a name and is trying to confirm that person’s status as a covert agent — could trigger liability.
Indeed, one could see an instance where a reporter stumbled onto a story that could, unbeknownst to the reporter, create legitimate risk. It would be a violation of the law for intelligence personnel to confirm that agent’s status to convince the reporter not to write the story.
While public affairs personnel are unlikely to make such a mistake for highly sensitive covert agents overseas, where the risk to life and limb is obvious, the CIA, in particular, has had senior-level officials under classified cover, but who are well known as CIA officials, take leadership roles in the United States. In 2015, the New York Times decided to publish the names of three such officials in a story about targeted killing. Common interactions between public affairs personnel and the press on similar stories could likewise trigger the expanded law.
Lastly, the intelligence agencies may be comforting themselves that this expansion will not pose a risk given that they decide when to refer a violation to the Justice Department for prosecution. Put aside the inherent problem in that dynamic — that the CIA and other agencies can selectively use the law to punish “bad” disclosures while insulating disclosures that make the agencies look good — the expansion could backfire against agency personnel.
For instance, Zero Dark Thirty, a movie about the killing of Osama Bin Laden, was quickly politicized, with various members of Congress calling for investigations into leaks of classified information to the filmmakers. Those resulted in Pentagon and CIA inspector general investigations that found, among other things, that the leaks included the identities of senior special forces members and the leakers were senior CIA and Pentagon officials.
The Pentagon report resulted in a referral to the Justice Department for the disclosure to the filmmakers of the name of a special operations commander by Michael Vickers, the undersecretary of defense for intelligence and, at one time, a contender to replace General David Petraeus as CIA director. The Justice Department declined to take action, but the incident shows that the intelligence community won’t necessarily be in control of investigations or prosecutions for violations of the expanded act.
In 2012, Congress introduced a provision in the intelligence authorization act, the same bill carrying this IIPA expansion, that would have, among other things, limited when rank-and-file members of the intelligence community could talk to the media. However, Senator Ron Wyden, D-Oregon, put a hold on the bill out of concern the proposal would impact press freedom, and the intelligence community realized the bill could have unintended consequences for its work.
We would urge Congress to do the same again, in not insignificant part to give intelligence community lawyers the chance to take another look.