SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 6
January 25, 2012

Secrecy News Blog: http://www.fas.org/blog/secrecy/

NEW LEAK CASE CITES 1982 LAW ON INTELLIGENCE IDENTITIES

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.

DOMESTIC USE OF DRONES IS WELL UNDERWAY

The use of unmanned aerial systems (UAS) within the United States is certain to increase in the years to come, as a new Army policy has recently made clear. ("Army Foresees Expanded Use of Drones in U.S. Airspace," Secrecy News, January 19.)

But in fact the use of unmanned aircraft or drones within U.S. airspace has already advanced to a degree that is not widely recognized. As of 2010, the Federal Aviation Administration had already issued hundreds of "certificates of authorization" (COAs) for the domestic use of drones.

"Right now, today as we sit here, we have 251 certificates of authorization for unmanned aircraft, 140 of them are DOD related," said Hank Krakowski of the FAA at an informative Senate hearing in September 2010. "We have not rejected or denied any DOD COAs in 2010, and we keep moving forward."

On the other hand, Mr. Krakowski cautioned, "While UASs offer a promising new technology, the limited safety and operational data available to date does not yet support expedited or full integration into the NAS [National Airspace System]. Because current available data is insufficient to allow unfettered integration of UASs into the NAS--where the public travels every day-- the FAA must continue to move forward deliberately and cautiously, in accordance with our safety mandate."

"Unmanned aircraft systems [were] originally and primarily designed for military purposes," he noted. "Although the technology incorporated into UASs has advanced, their safety record warrants caution. As we attempt to integrate these aircraft into the NAS, we will continue to look at any risks that UASs pose to the traveling public as well as the risk to persons or property on the ground."

See "The Integration of Unmanned Aircraft Systems (UASs) Into the National Airspace System (NAS): Fulfilling Imminent Operational and Training Requirements," Senate Committee on Commerce, Science and Technology, September 13, 2010 (published September 2011):

In the 2012 National Defense Authorization Act, Congress included language requiring a report on "the integration of unmanned aerial systems into the national airspace system."

The legality of the use of drones in CIA targeted killing programs is among the topics that is explored in the brand new issue of the Journal of National Security Law and Policy on the subject of covert war. It can be read online here:

PRESIDENTIAL SIGNING STATEMENTS, AND MORE FROM CRS

President Obama has used "signing statements" to take exception to provisions of law enacted by Congress with significantly less frequency than did President George W. Bush, and he has also abandoned reference to the "unitary executive" concept that was favored by the Bush Administration.

In most other respects, however, the Obama Administration's use of signing statements is consistent and continuous with recent past practice, according to a newly updated report from the Congressional Research Service. The report reviewed the basis for signing statements, their legal implications, and the controversy that has surrounded them. See "Presidential Signing Statements: Constitutional and Institutional Implications," January 4, 2012:

Some other new or newly updated CRS reports that have not been made readily available to the public include the following.

"Legal Issues Associated with the Proposed Keystone XL Pipeline," January 23, 2012:

"'Who is a Veteran?' -- Basic Eligibility for Veterans' Benefits," January 23, 2012:

"Federal Aid to Roads and Highways Since the 18th Century: A Legislative History," January 6, 2012:

"Navy Force Structure and Shipbuilding Plans: Background and Issues for Congress," January 6, 2012:

"Iran Sanctions," January 6, 2012:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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