Blowing its cover: how the Intelligence Identities Protection Act has masqueraded as an effective law and why it must be amended.

• Author: Szilagyi, Andrew M.

TABLE OF CONTENTS INTRODUCTION I. BACKGROUND TO THE IIPA A. Historical Context B. The Legislative Response C. An Overview of the Purpose and Scope of the IIPA II. THE IIPA's LIMITED APPLICATION A. Availability of the Espionage Act B. Inherent Limitations C. Lack of Political Initiative III. THE CRITICAL NEED FOR AN AMENDMENT A. Policy Justifications B. Constructing an Amendment 1. Expanding the Class of Protected Persons 2. Easing the Narrowness of Its Offenses a. Replacing the "Knowledge" Element b. Eliminating the "Pattern of Activities" Element C. Addressing the Other Factors CONCLUSION INTRODUCTION

Individuals engaged in clandestine intelligence collection are constantly placed in peril. The Central Intelligence Agency (CIA) refers to such covert officers as case officers. (1) The safety of case officers and the integrity of their work are dependent upon secrecy, especially with regard to their identities. (2) Concealment of case officers' identities not only allows them to operate covertly, but their confidence in the preservation of this information also provides them with the only sense of security they have in an otherwise dangerous, isolated, and uncertain life of public service.

In order to appreciate the importance of secrecy, the intelligence collection process must be fully understood. Intelligence agencies gather information by several methods, including the use of open, technological, and human intelligence sources. (3) Case officers typically engage in human intelligence (HUMINT) collection, which is also referred to as espionage or spying. (4) The HUMINT method involves clandestine surveillance and case officers' recruitment of "assets," (5) including the use of foreign nationals to spy. (6) Because case officers must operate under a subterfuge, which provides them with plausible explanations for their presence within a foreign state, (7) secrecy is critical to their safety and the value of their work.

If a case officer's identity is compromised, then the result can have drastic effects on that officer's individual welfare. (8) A discovered case officer may be subjected to great personal and physical risk, particularly if that officer has a nonofficial cover. (9) Not only may the case officer be subjugated to adverse treatment, but those connected to that officer, including family and friends, may also be endangered. (10) Moreover, exposing a case officer's identity can negatively affect that officer's livelihood. Exposed case officers often lose their ability to operate clandestinely abroad, therefore denying that individual the opportunity to continue a career as a case officer. (11)

The unauthorized disclosure of a case officer's identity can also have significant national security implications, as it impedes the intelligence process and frustrates foreign diplomacy. These implications are illustrated by four possible consequences resulting from an unauthorized disclosure. First, the government must sacrifice both its investment in an exposed case officer and the experience, knowledge, and ability that the officer possessed. (12) Second, similar to personal associations, an uncovered case officer's professional connections may be imperiled, which include coworkers and recruited assets. (13) Third, the effects of exposure may demoralize current case officers and reduce the future applicant pool by discouraging potential recruits from applying. (14) Finally, there is the possibility of significant political embarrassment to the government that dispatches an uncovered case officer. (15) Because of the personal and national security implications identity exposure can have, case officers' identities remain secret.

Even with these cumulative threats arising from unauthorized disclosures, the U.S. intelligence apparatus remains the most transparent intelligence system in the world. (16) Throughout the history of the United States, however, there has been incessant controversy over the level of secrecy in the intelligence community. (17) Responsibility for safeguarding secrecy within the U.S. intelligence community is largely placed upon internal safeguards rather than codified law. (18) While the debate over secrecy continues, particularly regarding the prevention of unauthorized disclosures of classified information, there is a narrow class of information that Congress has affirmatively sought to protect--the identities of case officers. Although some U.S. presidents were importunate about the need to keep case officers' identities secret for years, (19) it was not until 1982 that Congress recognized the importance of such a measure, when it passed the Intelligence Identities Protection Act (IIPA). (20) The IIPA was specifically designed to outlaw the unauthorized disclosure of case officers' identities.

Despite its noble purpose and the need to protect case officers' identities, since its enactment, the IIPA has been rarely utilized and largely ineffective. (21) Its limited application is attributable to the uncovering of three factors that have plagued the IIPA throughout its over twenty-five year existence: (1) the availability of another, but equally insufficient, espionage-related statute; (2) the IIPA's inherent limitations; and (3) a lack of political initiative to enforce the IIPA. (22) The Valerie Plame Wilson affair is a glaring example of the IIPA's limited application. (23) Additionally, the Plame affair serves as a useful case study for illustrating two of the factors inhibiting the IIPA's application--namely, the law's inherent limitations and the lack of political will to enforce the law. (24) Upon analyzing the Plame affair and other instances in which the IIPA could have been applied, it is evident that, in order to effectively serve its purpose and avoid becoming completely defunct, the IIPA must be amended. This Note details the need for an immediate and comprehensive amendment to the IIPA, which will address the IIPA's three debilitating factors by expanding the class of protected persons and easing the narrowness of its offenses. Part I provides a brief background to the IIPA, including the historical events that motivated its enactment and an overview of its purpose and scope. Part II discusses the limited application of the IIPA, especially in the context of its intended purpose and scope, and the three factors inhibiting its enforcement. Part III provides policy justifications for amending the IIPA and suggests proposals to be included in an amendment--particularly, expanding the class of protected persons and easing the narrowness of its offenses. In the end, this Note concludes that the IIPA, if properly amended, can become a viable and valuable safety mechanism in preventing the unauthorized disclosure of case officers' identities. Such an amendment will add substance to a law that has been disguised as effective.

1. BACKGROUND TO THE IIPA

   1. Historical Context

      During the late 1970s and early 1980s, the systematic exposure of case officers' identities rattled the U.S. intelligence community. Numerous media exposures of clandestine operations prompted criticisms of the CIA for its involvement in what some believed to be questionable activities. (25) Soon, dissidents dedicated to the eradication of the CIA surfaced within the United States and abroad. (26) The movement became so pervasive that publications emerged, determined to undermine CIA operations. A former CIA case officer even authored and edited several of these publications. (27) Eventually, the intelligence community's worst fears regarding the unveiling of case officers' identities became reality. (28)

      In 1975, three gunmen assassinated the CIA station chief for Greece, Richard S. Welch, outside of his Athens home. (29) Welch's murder came eighteen months following his exposure as a CIA case officer in CounterSpy magazine. (30) Although CounterSpy editor Philip Agee denied that his actions resulted in Welch's murder, (31) the White House and the intelligence community contended that Agee's publication was indirectly responsible. (32)

      In 1980, Louis Wolf, the editor of the CovertAction Information Bulletin, held a press conference to disclose the identities of fifteen purported CIA case officers working in the U.S. embassy in Kingston, Jamaica. (33) Wolf revealed the case officers' biographical information, home addresses, telephone numbers, and automobile descriptions, including license plate numbers. (34) He claimed that one of the named case officers, N. Richard Kinsman, was the CIA station chief for Jamaica. (35) Fewer than forty-eight hours following this press conference, Kinsman's home came under a barrage of machine gun fire and grenade attack. (36) Three days later, another unsuccessful assassination attempt was mounted against the home of one of the other identified case officers. (37) Because of these incidents, the U.S. government was forced to remove all of the named case officers and their families from Jamaica. (38)

      In 1981, the newspaper Nuevo Diario, a pro-Sandinista publication, identified thirteen CIA case officers stationed in the U.S. embassy in Managua, Nicaragua. (39) Some of these case officers received death threats and others were attacked in their homes. (40) The U.S. government officials in Managua insisted that there was a nexus between Agee's visit to Nicaragua and Nuevo Diario's printing of the names. (41) Along with these unsuccessful assassination attempts, the same year also brought the murders of two Americans, Michael P. Hammer and Mark David Pearlman. Hammer and Pearlman were murdered in San Salvador after Agee accused their employer, the American Institute for Free Labor and Development (AIFLD), of being a CIA front organization for intelligence operations in E1 Salvador. (42)

      In 1982, Cuban intelligence officials, along with the editors of the CovertAction Information Bulletin, visited Mozambique. (43) Coincidentally, following this visit, the Mozambique...