The Intelligence Identities Protection Act, P.L. 97-200, became law on June 23, 1982, as an amendment to the National Security Act of 1947. The act was an immediate response to a series of disclosures in the post- Watergate era, placing U.S. covert operatives and others working with them in personal danger. The most famous cases involve disclosures by former CIA operative Philip Agee, leading to the assassination of CIA operative in Greece, and by the editor of a publication, the Covert Action Bulletin Board, at a news conference in Kingston, Jamaica, in 1980, leading to an attack on the U.S. Embassy there. The act thus reflects Congress’s judgment that some new deterrent measures were necessary.
It criminalizes the disclosure of covert agents of the United States, establishing three distinct offenses with increasingly severe penalties, reaching up to ten years’ imprisonment, $50,000 in fines, or both. In decreasing order of severity, it distinguishes among the following cases: intentional disclosure by a person who ordinarily has access to classified information concerning the identity of a covert agent; intentional disclosure by a person who has access to classified information and learns of the identity of a covert agent; and, finally, a pattern of activities intended to identify and expose covert agents, with reason to believe that those activities would impair or impede the foreign intelligence activities of the United States. In each case, the government must prove that the defendant knows not only that the information identifies a covert agent, but also that the United States is taking affirmative measures to conceal that agent’s relationship to the United States. The defendant can avoid criminal responsibility if he can show that the United States had publicly acknowledged or revealed its intelligence relationship with the identified covert agent.
As the legislative history reveals, with regard to wholly private conduct, the Congress considered the First Amendment interest in publishing actual names of covert agents to be de minimis. The legislative history also reveals that Congress intended that prosecution in such cases would require a showing of a ‘‘pattern of activities,’’ such as efforts to obtain classified information; a comprehensive counterintelligence effort involving espionage techniques; or systematic collection, collation, and analysis of information from documentary sources. The Congress believed that this requirement would allow the courts to protect expressive, journalistic, and scholarly activities protected by the First Amendment.
In 2003, the act drew public attention in relation to the revelation of the name of a CIA employee, Valerie Plame, whose husband had submitted a report on the possibility of uranium ore transfers from Niger to Iraq at variance with public assertions by the Bush administration. The matter is under investigation, drawing the act into public attention, but this renewed attention bears little relation to the types of disclosures that originally prompted its enactment.
ANTONIO F. PEREZ
References and Further Reading