Expanding the Covert Agent Secrecy Law Threatens to Chill Reporting

Covert intelligence operatives on overseas postings face unique dangers: arrest, torture and possible execution. These dangers were embodied in the name of James Bond’s nemesis, a fictional Soviet counterintelligence organization called SMERSH, meaning “Death to Spies” in Russian. But, SMERSH was based on a real-life World War II-era counterintelligence unit in the Red Army that rooted out spies and killed them.

That kind of danger is what Congress specifically had in mind when it passed the Intelligence Identities Protection Act (IIPA) of 1982.

The IIPA, enacted as a response to several high-profile “outings” of CIA officers, is one of the few federal laws that expressly criminalizes the disclosure of truthful information about government activities by non-government employees. After six years of debate and compromise, the law was narrowly crafted to apply only to disclosures of officers and agents whose overseas service would put them in personal danger if their identities were revealed. This limited scope may be why the law has been rarely used.

But an expansion of the law, which was pushed by the CIA and is fast-tracking through Congress as part of this year’s intelligence authorization bills, would remove the overseas requirement entirely, meaning that intelligence agencies could criminalize the disclosure of the identities of clandestine officers and agents in perpetuity, including after retirement or even after death.

To understand why this is ill-considered, it’s important to understand how “cover” works in the intelligence world. There are two primary forms of cover for intelligence officers or employees — the case officers who “run” the actual spies, known as “agents.” Intelligence officers under “non-official cover,” known as NOCs, are the most vulnerable and often pose under sophisticated cover stories with no connection to the U.S. government. Their identities are closely guarded by the government because, if they get caught, they cannot invoke diplomatic immunity and could be subject to prosecution, imprisonment, or even execution under the laws of the country in which they are posted.

The majority of overseas officers serve under “official” cover, posing either as diplomats or military attachés. These officers, unlike NOCs, have diplomatic immunity and may be able to avoid legal trouble if their identity as an intelligence officer is disclosed. That said, they may face similar physical dangers when posted overseas.

When Congress initially debated the IIPA, it specifically had in mind these officers and employees with high-risk assignments abroad. It also extended the IIPA’s protection to U.S. citizen agents and informants who are active overseas on behalf of U.S. intelligence agencies because disclosure of their identities would put them and their families at similar risks of physical harm. Non-U.S. citizen agents or informants are protected regardless of where they are.

Congress determined that the overseas requirement was necessary to get at only the narrow set of cases where disclosure would jeopardize the safety of intelligence officers, employees, agents, and informants, without stifling important public debate or inhibiting “journalistic pursuit of a story on intelligence, or the disclosure of illegality or impropriety in government.” The law was focused on NOCs and official cover officers who were either serving overseas or who had served overseas in the last five years.

Last month, when the Senate Select Committee on Intelligence considered the same proposal by the CIA that was adopted by the House on July 17, Sen. Ron Wyden (D-Ore.) expressed his skepticism toward the suggested change and stated that he is “not yet convinced this expansion is necessary and . . . [is] concerned that it will be employed to avoid accountability.”

Indeed, the proposed expansion would allow the CIA to indefinitely extend the cloak of secrecy possibly to any unacknowledged officer or employee, even if they have been safely on U.S. soil for years and who would not be in physical danger if outed. It would even apply to long-retired or deceased intelligence officers, so long as their identities as such remain classified.

Removing the overseas nexus would also allow the government to criminalize the disclosure of the identity of a U.S. citizen who is spying for the CIA or other intelligence agencies on American soil. When Congress began debating the IIPA in 1976, it did so against the backdrop of just that — intelligence agencies’ illegal use of informants to infiltrate and subvert civil rights and anti-war groups in the U.S. — and it included the overseas residency requirement for fear the law would chill aggressive reporting on such abuses.

Wyden also noted his concern about the CIA’s explicit reference to its Rendition, Detention, and Interrogation (“RDI”) investigation in its written justification for the expansion of the IIPA as a point of concern, which is related to how the IIPA is written and how, without the overseas requirement, it can be applied more aggressively to chill newsworthy and legitimate journalistic pursuits.

The current law is triggered by the disclosure of an intelligence officer’s classified “identity as such,” but actually criminalizes the intentional disclosure of “any information identifying” a covert agent whose identity is secret. It’s relatively easy to see how this would apply to non-official or official cover officers.

However, the CIA has classified the identity of senior officials who are not serving overseas, particularly those who were involved in the detention and interrogation and targeted killing programs, and has cited the IIPA in criticizing news organizations for using their names even though they hold positions of significant responsibility in the agency and their identities as CIA officers are well known.

Without the overseas requirement, there is a concern that the IIPA could be used to threaten legal action for reporting on controversial activities of such officers whose identity is common knowledge but whose activities might be classified. The CIA has not been shy in wielding the law as a threat in similar cases in the past — two independent journalists who figured out the names of key individuals in the CIA’s efforts against al-Qaeda agreed to censor the name of one of these officers after the CIA repeatedly invoked the IIPA. The proposed expansion would just heighten that concern.

For NOCs and official cover officers overseas, it’s usually straightforward to determine whether the “SMERSH”-type threat applies if their identity is revealed. Under the expanded IIPA, however, things would be much murkier, and the threat of prosecution could impair reporting in the public interest where the threat of physical harm to an intelligence officer is minimal.

Image: Charles Ommanney/Getty

 

About the Author(s)

Linda Moon

Linda Moon is the Stanton Foundation National Security Fellow at the Reporters Committee for Freedom of the Press.