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SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2012, Issue No. 6
January 25, 2012
Secrecy News Blog:
www.fas.org/blog/secrecy/** NEW LEAK CASE RELIES ON 1982 LAW ON INTELLIGENCE IDENTITIES
** DOMESTIC USE OF DRONES IS WELL UNDERWAY
** PRESIDENTIAL SIGNING STATEMENTS, AND MORE FROM CRS
NEW LEAK CASE RELIES ON 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.
www.fas.org/sgp/news/2012/01/kiriakou.htmlThe 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.
www.fas.org/sgp/jud/kiriakou/complaint.pdfBut 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:
www.fas.org/sgp/crs/intel/RS21636.pdfMr. 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):
www.fas.org/irp/congress/2010_hr/uas.htmlIn 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:
www.jnslp.com/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. 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:
www.fas.org/sgp/crs/natsec/RL33667.pdfSome 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:
www.fas.org/sgp/crs/misc/R42124.pdf"'Who is a Veteran?' -- Basic Eligibility for Veterans' Benefits," January
23, 2012:
www.fas.org/sgp/crs/misc/R42324.pdf"Federal Aid to Roads and Highways Since the 18th Century: A Legislative
History," January 6, 2012:
www.fas.org/sgp/crs/misc/R42140.pdf"Navy Force Structure and Shipbuilding Plans: Background and Issues for
Congress," January 6, 2012:
www.fas.org/sgp/crs/weapons/RL32665.pdf"Iran Sanctions," January 6, 2012:
www.fas.org/sgp/crs/mideast/RS20871.pdf_______________________________________________
Secrecy News is written by Steven Aftergood and published by the
Federation of American Scientists.
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www.fas.org/member/donate_today.html_______________________
Steven Aftergood
Project on Government Secrecy
Federation of American Scientists
web:
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twitter: @saftergood