The Intelligence Identities Protection Act must go.

A wartime lexicon.
July 26 2005 4:40 PM

A Nutty Little Law

The Intelligence Identities Protection Act must go.

At the root of the Karl Rove/Matt Cooper/Judy Miller/Plame-Wilson imbroglio is a weird piece of legislation known as the Intelligence Identities Protection Act. Passed in 1982 after a huge scare about the murder of Richard Welch, the CIA station chief in Athens, it was designed by its sponsors to criminalize any disclosure about the personnel or identities of the Central Intelligence Agency. Welch's killing had been variously blamed on the printing of his name by the CIA defector Philip Agee (who had not in fact named Welch at all in his best-seller Inside the Company) and on an article in the radical sheet Covert Action Information Bulletin, then edited by Lou Wolf, Bill Schaap, and Ellen Ray. In fact, it seems that Welch was easily identified by a Greek nihilist group because he insisted on occupying the same house that was known to be a CIA residence during the time of the agency-supported military dictatorship. But this in a sense was beside the point. Opponents and critics of the bill charged that it violated the First Amendment and threatened to institute a British-style "Official Secrets Act," where nobody except the KGB would know who was in charge of American intelligence.

As the New York Times so sapiently put it, in an editorial on March 4, 1982:

Christopher Hitchens Christopher Hitchens

Christopher Hitchens (1949-2011) was a columnist for Vanity Fair and the author, most recently, of Arguably, a collection of essays.

The closer the Senate gets to voting on the "Intelligence Identities Protection Act," the clearer it becomes that this bill dangerously exceeds its announced purpose. It was prompted by former agents who break their oaths and expose American secret agents in risky intelligence work. But Congressional anger soon spread to individuals who never worked for the Government but engage in similar exposures using publicly available information. And that, in turn, has raised concern about the possible use of the act against news organizations.

If there was any doubt that the act extends that far, it has now been put to rest. Senator John Chafee, a chief sponsor, has clarified the bill's threat to conventional journalism—and public discussion generally.

Asked whether a prosecutor could use the bill against reporters and news organizations for exposing crimes and abuses by agents and informants, the Senator had this reply: "I'm not sure that the New York Times or the Washington Post has the right to expose names of agents any more than Mr. Wolf or Mr. Agee," two of the bill's main targets. "They'll just have to be careful about exposing the names of agents."

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Ridiculing this catchall attitude, the Times went on to say that: "In no case can the Senate responsibly follow the House's reckless example and make it a crime to identify an agent without even requiring proof of criminal intent."

Almost three weeks later, on March 22, 1982, the New York Times editorialist was back on the subject. "What happens?" the editorial demanded to know, "when Congress thus ignores the Constitution?" This question was answered with a flourish:

Courageous members will continue to fight the issue in House-Senate conference. Resourceful journalists will maintain their vigilance against official secrecy. Government can forbear and use its illegitimate power sparingly. All should hope the courts will wipe the law from the books.

In general, the act was endorsed by a triumphalist Reaganite right and opposed by the left. (I also looked up what the Nation had said on the subject and found a series of well-reasoned editorials, articles, and letters opposing the original bill.) In the Senate, Arlen Specter and Dan Quayle joined Joseph Biden, Bill Bradley, and Patrick Leahy in criticizing the legislation for being at once too specific and too vague (though Biden is the only one of those who ultimately voted against).

So, for the past 23 years we have had to live with an unconstitutional law that gives special immunity and protection to, of all agencies of government, the CIA. The right in 1982 certainly did not anticipate a time when senior Republicans would regard the CIA with open suspicion. And partly as a consequence, a law that scars the First Amendment has become the favorite legislation of the anti-war left.

Now observe the operation of this law in practice. A fairly senior CIA female bureaucrat, not involved in risky activity in the field, proposes her own husband for a mission to Niger, on the very CIA-sounding grounds that he enjoys good relations with the highly venal government there, and in particular with its Ministry of Mines. This government, according to unrefuted intelligence-gathering from British and other European intelligence agencies, is covertly discussing sanctions-breaking sales of its uranium to a number of outlaw regimes, including that of Saddam Hussein. The husband, who has since falsely denied being recommended by his wife, revisits his "good contacts" in Niger for a brief trip and issues them a clean bill. The CIA in general is institutionally committed against the policy of regime change in Iraq. It has also catastrophically failed the country in respect of defense against suicidal attack. ("I wonder," Tenet told former Sen. David Boren on the very first news of 9/11, "if it has anything to do with this guy taking pilot training." Wow, what a good guess, if a touch late. The CIA had failed entirely to act after the FBI detained Zacarias Moussaoui in Minnesota in August.)

Could it be that there is an element of politicization in all this? That there is more to Mr. Wilson's perfunctory "no problem" report from Niger than first appears? I would describe this as a fit, if not indeed urgent, subject for public debate. But the CIA has a reserve strength. It can and does leak against the Defense Department. But if anyone leaks back at it, there is a nutty little law, passed back in 1982, that can criminalize the leaker. Karl Rove is of course obliged to observe this law and every other one. And it appears that he did, in that he did not, and did not intend to, expose Valerie Plame in any way.

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