Thursday, December 3, 2009

The Intelligence Identities Protection Act

In 1982, the Intelligence Identities Protection Act was enacted into law as an
amendment to the National Security Act of 1947. This Act was a response to concerns
of members of the House and Senate Intelligence Committees and others in Congress
“about the systematic effort by a small group of Americans, including some former
intelligence agency employees, to disclose the names of covert intelligence agents.”2 The
Senate Judiciary Committee’s report also discussed the efforts of Philip Agee, Lewis
Wolf, and others to identify and disclose U.S. intelligence officers as part of “a systematic
effort to destroy the ability of [U.S.] intelligence agencies to operate clandestinely,” and
their apparent repercussions.3 Such disclosures preceded and may have contributed to
circumstances resulting in the death or attempted assassination of some CIA officers,
expulsion of others from a foreign country following charges of spying, and impairment
of relations with foreign intelligence sources. Two of Agee’s books revealed over 1,000
names of alleged CIA officers. Wolf was co-editor of the “Covert Action Information
Bulletin,” a publication which contained a section entitled “Naming Names.” Wolf
claimed to have revealed the names of over 2,000 CIA officers. He also provided
addresses, phone numbers, license tag numbers, and colors of the automobiles of some
alleged intelligence agents.4 Such calculated disclosures set the stage for the
consideration and passage of the Intelligence Identities Protection Act.

The criminal provisions of the Act are contained in 50 U.S.C. § 421:
§ 421. Protection of identities of certain United States undercover intelligence
officers, agents, informants, and sources.

(a) Disclosure of information by persons having or having had access to classified
information that identifies covert agent
Whoever, having or having had authorized access to classified information that
identifies a covert agent, intentionally discloses any information identifying such
covert agent to any individual not authorized to receive classified information,
knowing that the information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert agent’s
intelligence relationship to the United States, shall be fined under Title 18 or
imprisoned not more than ten years, or both.

(b) Disclosure of information by persons who learn identify of covert agents as result
of having access to classified information
Whoever, as a result of having authorized access to classified information, learns
the identity of a covert agent and intentionally discloses any information identifying
such covert agent to any individual not authorized to receive classified information,
knowing that the information disclosed so identifies such covert agent and that the
United States is taking affirmative measures to conceal such covert agent’s
intelligence relationship to the United States, shall be fined under Title 18 or
imprisoned not more than five years , or both.

(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.

(d) Imposition of consecutive sentences
A term of imprisonment imposed under this section shall be consecutive to any
other sentence of imprisonment.

Each of these offenses is a felony. Under 18 U.S.C. § 3571, individuals convicted
of a felony may be fined the greater of either the amount set forth in the offense statute
or an amount not more than $250,000, while the maximum fine for an organization
convicted of a felony would be the greater of the amount set forth in the offense statute
or an amount of not more than $500,000. This section also provides for an alternative
fine based on pecuniary gain or loss. If anyone has derived pecuniary gain from the
offense or if the offense results in pecuniary loss to any person, the defendant may be
fined not more than the greater of twice the gross gain or twice the gross loss, unless the
imposition of a fine under this subsection would unduly complicate or prolong the
sentencing process.

The offenses set forth in 50 U.S.C. §§ 421 (a), (b), and (c) share some elements in
common: (1) intentional disclosure5 of the identity of a covert agent6 (2) to someone not
authorized to receive classified information, (3) knowing that the information disclosed
identifies that agent, and (4) knowing further that the United States is taking affirmative
measures to conceal the agent’s intelligence relationship with the United States.

Subsections 421(a) and (b) contemplate offenses where the perpetrator has or has had
authorized access to classified information, while subsection 421(c) has no similar
requirement. Under 50 U.S.C. § 421(a), an offender must have or have had access to
classified information which identifies a covert agent. Under 50 U.S.C. § 421(b), the
perpetrator must have learned the identity of a covert agent as a result of having
authorized access to classified information. In contrast to these provisions, subsection
421(c) does not require that the perpetrator have or have had authorized access to
classified information. Rather, it provides that the perpetrator must disclose the identity
of the covert agent (1) in the course of a pattern of activities intended to identify and
expose covert agents, and (2) must make the disclosure with reason to believe that his or
her activities would impair or impede U.S. foreign intelligence activities. Subsection
426(10) defines a “pattern of activities” as involving “a series of acts with a common
purpose or objective.”

Much of the focus of attention during the consideration of the measure was upon
subsection 421(c), and its First Amendment implications.7 The Senate Judiciary and the
Conference Committee addressed these concerns at length. Both concluded that the
language of the measure would pass constitutional muster.8 The Conference Committee
characterized the goal of the provision as follows:
The record indicates that the harm this bill seeks to prevent is most likely to
result from disclosure of covert agents’ identities in such a course designed, first, to
make an effort at identifying covert agents and, second, to expose such agents
publicly. The gratuitous listing of agents’ names in certain publications goes far
beyond information thatmight contribute to informed public debate on foreign policy
or foreign intelligence activities. That effort to identifyU.S. intelligence officers and
agents in countries throughout the world and to expose their identities repeatedly ...
serves no legitimate purpose. It does not alert to abuses; it does not further civil
liberties; it does not enlighten public debate; and it does not contribute one iota to the
goal of an educated and informed electorate. Instead, it reflects a total disregard for
the consequences that may jeopardize the lives and safety of individuals and damage
the ability of the United States to safeguard the national defense and conduct an
effective foreign policy....
The standard adopted in section 601(c) applies criminal penalties only in very
limited circumstances to deter those who make it their business to ferret out and
publish the identities of agents. At the same time, it does not affect the First
Amendment rights of those who disclose the identities of agents as an integral part of
another enterprise such as news media reporting of intelligence failures or abuses,
academic studies of U.S. government policies and programs, or a private
organization’s enforcement of its internal rules.9

The Conference Committee distinguished between the main purpose of a person
engaged in “the business of ‘naming names,’” whose intent is to identify and expose
covert agents, and side effects of one’s conduct that one “anticipates but allows to occur.”
“Those who republish previous disclosures and critics of U.S. intelligence would all stand
beyond the reach of the law if they did not engage in a pattern of activities intended to
identify and expose covert agents.”10 Despite these assurances, some commentators have
questioned the constitutional sufficiency of subsection 421(c) on First Amendment
grounds, finding it over-broad, and questioning the absence of a specific intent requirement
instead of the “reason to believe” standard.11 The courts have yet to consider the issue.

Under 50 U.S.C. § 422, it is a defense to a prosecution under 50 U.S.C. § 421that,
prior to the commission of the offense, the United States publicly acknowledged or
revealed the intelligence relationship to the United States of the covert agent involved.
In addition, this provision precludes prosecution of anyone other than the person who
made the disclosure of the identity of a covert agent for a section 421 offense on the
grounds of misprision of felony, aiding and abetting, or conspiracy, unless the elements
of subsection 421(c) are satisfied. Nor is it an offense against section 421 for a person to
transmit information directly to either the House or Senate intelligence committees. An
agent cannot be prosecuted for disclosing just his own identification as a covert agent.

Section 423 requires the President, after receiving information from the Director of
Intelligence, to report to the House and Senate intelligence committees annually on
measures to protect covert agents, and other relevant information. Such reports are
exempt from any publication or disclosure requirement.

Section 424 authorizes extraterritorial jurisdiction where the offender is a U.S.
citizen or a permanent resident alien.

Under section 425, the Act may not be construed to permit withholding of
information from Congress or a committee of the House or Senate. Finally, section 426
includes the definitions of terms used in this subchapter.

There do not appear to be any published cases involving prosecutions under thisAct.
Depending upon the circumstances of a given case, other criminal statutes may also be
implicated.12

Endnotes

1 Act of July 26, 1947, c. 343, Title VI, §§ 601-606, as added by P.L. 97-200, § 2(a), 96 Stat. 122
(June 23, 1982). The definitions section, 50 U.S.C. § 426, and fine provisions, 50 U.S.C. §§
421(a), (b), and (c), were amended in 1999 by P.L. 106-120, Title III, §§ 304(a) and (b), 113
Stat. 1611 (Dec. 3, 1999), while the defenses and exceptions provision in 50 U.S.C. § 422 and
the reporting requirements in 50 U.S.C. § 423 were amended in 2002 by P.L. 107-306, Title III,
§§ 353(b)(1)(B), 353(b)(9), and Title VIII, § 811(b)(1)(E), 116 Stat. 2402, 2422 (Nov. 27, 2002).

2 S. Rep. 97-201, at 1, reprinted in 1982 U.S.C.C.A.N. 145. In this report, the Senate Judiciary
Committee reviewed the legislative history of S. 391 and the companion bill, H.R. 4, and their
predecessors beginning with proposals in the 94th and 95th Congresses. The Congress passed H.R.
4, in lieu of the Senate bill, after amending the House bill to encompass much of the language of
the Senate bill.

3 S. Rep. 97-201,at 1-7, reprinted in 1982 U.S.C.C.A.N. at 145-51. S. Rep. 97-201, 7-10,
reprinted in 1982 U.S.C.C.A.N. at 151-54. See also, H.R. 4, The Intelligence Identities
Protection Act: Hearings before the Subcomm. on Legislation of the House Permanent Select
Comm. on Intelligence,, 97th Cong., 1st Sess. (1981); Intelligence Identities Protection Act of 1981
—S. 391: Hearing before the Subcomm. on Security and Terrorism of the Senate Comm. on the
Judiciary, 97th Cong., 1st Sess. (1981).

4 S. Rep. 97-201, at 7-10, reprinted in 1982 U.S.C.C.A.N. at 151-54.

5 50 U.S.C. § 426 (3) defines “disclose” to mean “to communicate, provide, impart, transmit,
transfer, convey, publish, or otherwise make available.”

6 50 U.S.C. § 426(4) defines “covert agent” to mean:
(A) a present or retired officer or employee of an intelligence agency or a present or
retired member of the armed forces assigned to duty with an intelligence agency—
(i) whose identity as such an officer, employee, or member is classified
information, and
(ii) who is serving outside the United States or has within the last five years
served outside the United States; or
(B) a United States citizen whose intelligence relationship to the United States is
classified information, and—
(i) who resides and acts outside the United States as an agent of, or informant
or source of operational assistance to, and intelligence agency, or
(ii) who is at the time of the disclosure acting as an agent of, or informant to, the
foreign counterintelligence or foreign counterterrorism components of the
Federal Bureau of Investigation; or
(C) an individual, other than a United States citizen,whose past or present intelligence
relationship to the United States is classified information and who is a present or
former agent of, or a present or former informant or source of operational assistance
to, an intelligence agency.

7 U.S. CONST. Amend I. H. Conf. Rep. 97-580, at 6-8; reprinted in 1982 U.S.C.C.A.N., at 170-
72.

8 S. Rep. 97-201, at 14-18; reprinted in 1982 U.S.C.C.A.N., at 158-62; H. Conf. Rep. 97-580,
at 7-10; reprinted in 1982 U.S.C.C.A.N., at 171-75.

9 H. Conf. Rep. 97-580, at 7-8; reprinted in 1982 U.S.C.C.A.N., at 171-72.

10 H. Conf. Rep. 97-580, at 9-10; reprinted in 1982 U.S.C.C.A.N., at 173-74.

11 “Note: The Constitutionality of the Intelligence Identities Protection Act,” 83 Colum. L. Rev.
727 (1983); “Note: The Intelligence Identities Protection Act of 1982: An Assessment of the
Constitutionality of Section 601(c),” 49 Brooklyn L. Rev. 479 (1983).

12 See, e.g., 18 U.S.C. § 111 (assaulting, resisting or impeding federal officers or employees
while engaged in or on account of the performance of official duties); 18 U.S.C. § 371
(conspiracy to commit a federal offense); 18 U.S.C. § 641 (theft or knowing conversion to one’s
own use or the use of another of government property or thing of value); 18 U.S.C. § 793
(gathering, transmitting, or losing information relating to the national defense); 18 U.S.C. § 794
(gathering or delivering defense information to aid a foreign government; among other things,
this section provides for a possible death penalty upon conviction upon a finding that the offense
resulted in the identification by a foreign power of an individual acting as an agent of the United
States and consequently resulted in the death of that individual); 18 U.S.C. § 1114 (killing or
attempting to kill an officer or employee of the United States or an agency thereof while the
officer or employee is engaged in or on account of performance of official duties). For a recent
discussion of the application of 18U.S.C. § 641 to leaks of confidential government information,
see “Stealing Information: Application of a Criminal Anti-Theft Statute to Leaks of Confidential
Government Information,” 55 Fla. L. Rev. 1043 (2003).

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