“The legislation ultimately will harm, not help, our national security interests (…) If left to stand, it will curtail legitimate journalistic scrutiny of a particularly important and sensitive area of government, creating the possibility that wrongdoing or wrong-headedness could flourish in that area, unchecked by public awareness.” Sen. Joseph R. Biden (D) of Delaware — Member of the US Senate’s Select Committee on Intelligence (April 6, 1982)

A former Director of the CIA Counterterrorism Center was appointed to head the CIA’s Iran Covert Operations. While reporting the story, the NYT ‘revealed’ the true identity of a man previously know as “CIA Roger”. One could easily believe that such ‘outing’ of a CIA officer violates the “Intelligence Identities Protection Act”. One could be wrong. Follow us on Twitter: @INTEL_TODAY

The NYT story

“The C.I.A. declined to comment on Mr. D’Andrea’s role, saying it does not discuss the identities or work of clandestine officials. The officials spoke only on the condition of anonymity because Mr. D’Andrea remains undercover, as do many senior officials based at the agency’s headquarters in Langley, Va. Mr. Eatinger did not use his name. The New York Times is naming Mr. D’Andrea because his identity was previously published in news reports, and he is leading an important new administration initiative against Iran.” [NYT]

Accusation of “outing” a CIA clandestine official

Bre Payton — a staff writer at The Federalist — called for a criminal investigation to determine who illegally leaked the name of the CIA’s top spy overseeing U.S. efforts in Iran.

The Times‘s flimsy rationale doesn’t make sense. Just because the paper said he was in charge of handling drone strikes in a few other countries in a two-year-old article doesn’t justify outing him as the CIA’s top spy in a country that is now considered to be the world’s leading state sponsor of terrorism. As The Israel Project’s Omri Ceren pointed out on Twitter, the fact that the CIA officials who spoke to the Times did so under the condition of anonymity because D’Andrea is still undercover means that the newspaper article is indeed outing him. And his safety is now likely in jeopardy thanks to the Times. In 2003, after the name of CIA employee Valerie Plame was revealed in an article by journalist Robert Novak, congressional Democrats demanded criminal investigations and eventual prison time for the individual responsible for leaking Plame’s name. No elected Democrats have yet called for a criminal investigation to determine who illegally leaked the name of the CIA’s top spy overseeing U.S. efforts in Iran.

History

The Intelligence Identities Protection Act of 1982 is a United States federal law that makes it a federal crime for those with access to classified information, or those who systematically seek to identify and expose covert agents and have reason to believe that it will harm the foreign intelligence activities of the U.S., to intentionally reveal the identity of an agent whom one knows to be in or recently in certain covert roles with a U.S. intelligence agency, unless the United States has publicly acknowledged or revealed the relationship. [Wikipedia]

Dubious origin

The law was written, in part, as a response to several incidents where Central Intelligence Agency (CIA) agents or officers’ identities were revealed. Under then existing law, such disclosures were legal when they did not involve the release of classified information.

In 1975, CIA Athens station chief Richard Welch was assassinated by the Greek urban guerrilla group November 17 after his identity was revealed in several listings by a magazine called CounterSpy, edited by Timothy Butz. A local paper checked with CounterSpy to confirm his identity.

As INTEL TODAY has explained, this linkage between the publication of Welch’s name by the CounterSpy magazine and his assassination is a fiction which is unfortunately repeated to this day, even by the CIA Director.

Criticism

The law passed the House by a vote of 315–32, with all opposing votes coming from Democrats. The law passed the Senate 81–4, with the opponents being Democratic Senators Joseph Biden, Gary Hart, and Daniel Patrick Moynihan, and Republican Senator Charles Mathias. [Wikipedia]

Biden had written an op-ed column in the Christian Science Monitor published on April 6, 1982 that criticized the proposed law as harmful to national security.

“In the last analysis, a free and inquiring press is the most reliable check the citizens of our nation have against wrongdoing and bad judgment in government, since government, like any individual, is often reluctant to call attention to the errors of its own ways. It is therefore a mistake for the Congress to pursue legislation which hinders the press from performing this vital function, as it has in this case.”

Who is a “Covert Agent”?

For the purposes of this ACT: the term ‘covert agent’ means:

(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the armed forces assigned to duty with an intelligence agency—

(i) whose identity as such an officer, employee, or member is classified information, and

(ii) who is serving outside the United States or has within the last five years served outside the United States; or (B) a United States citizen whose intelligence relationship to the United States is classified information, and—

(i) who resides and acts outside the United States as an agent of, or informant or source of operational assistance to, an intelligence agency, or

(ii) who is at the time of the disclosure acting as an agent of, or informant to, the foreign counterintelligence or foreign counterterrorism components of the Federal Bureau of

Investigation; or (C) an individual, other than a United States citizen, whose past or present intelligence relationship to the United States is classified information and who is a present or former agent of, or a present or former informant or source of operational assistance to, an intelligence agency.

Conclusion

The 1982 ACT is very clear on who is a ‘covert agent’. And D’Andrea does NOT fit the profile. He has been a bureaucrat since at least 2006! The Act require an active agent or an agent active in the last 5 years. [serving outside the United States or has within the last five years served outside the United States]

Just to be sure, I wrote to Steven Aftergood who runs the excellent SECRECY NEWS Blog. His answer was clear cut. Aftergood comes to the same conclusion although trough a different argument.

“The Intelligence Identities Protection Act almost certainly does not apply in this case, because it applies to those who expose covert agents based on their own (authorized) access to classified information, and/or to those who are engaged in a “pattern of activities” designed to expose covert agents. Neither seems to fit this NY Times story.”

Steven Aftergood also suggested the following reading: “Intelligence Identities Protection Act” written by Jennifer K. Elsea — Legislative Attorney — published on April 10, 2013.

[NOTE: Valerie Plame was a covert agent at the time of the leak when she was outed as a CIA operative in a 2003 newspaper column by Robert Novak. On October 23 2012, former CIA officer John Kiriakou pleaded guilty to violating the Intelligence Identities Protection Act. While explaining to a reporter that waterboarding was used to interrogate Al Qaeda prisoners, Kiriakou disclosed the identity of a fellow CIA officer. The reporter did not publish the name of the operative.]

About CIA Counter Terrorism Center

The CIA Counterterrorist Center was established in February 1986, under the CIA’s Directorate of Operations, with Duane Clarridge as its first director.

The heads of the CTC since 1986 have been the following:

Duane R. “Dewey” Clarridge: 1986-1987 Frederick A. Turco: 1987-1991 Richard L. Holm (unconfirmed): 1991-1994 Winston P. Wiley: 1994-1997 John G. O’Connell: 1997-1999 Cofer J. Black: 1999-2002 José A. Rodriguez, Jr.: May 2002 – November 2004 Robert L. Grenier: November 2004 – February 2006 “CIA Roger” (Mike D’ Andrea): February 2006 – March 2015 “CIA Chris”: March 2015 – ?

About Steven Aftergood

Steven Aftergood directs the FAS Project on Government Secrecy. The Project works to reduce the scope of national security secrecy and to promote public access to government information. He writes Secrecy News, which reports on new developments in secrecy policy and provides direct access to significant official records that are otherwise unavailable or hard to find. In 1997, Mr. Aftergood was the plaintiff in a Freedom of Information Act lawsuit against the Central Intelligence Agency which led to the declassification and publication of the total intelligence budget for the first time in fifty years ($26.6 billion in FY 1997). In 2006, he won a FOIA lawsuit against the National Reconnaissance Office for release of unclassified budget records. Mr. Aftergood is an electrical engineer by training (B.Sc., UCLA, 1977). He joined the FAS staff in 1989. From 1992-1998, he served on the Aeronautics and Space Engineering Board of the National Research Council. His work on challenging government secrecy has been recognized with the Pioneer Award from the Electronic Frontier Foundation (2010), the James Madison Award from the American Library Association (2006), the Public Access to Government Information Award from the American Association of Law Libraries (2006), and the Hugh M. Hefner First Amendment Award from the Playboy Foundation (2004).

REFERENCES

The New York Times Just Outed The CIA’s Top Iran Spy — The Federalist

A spy law that harms national security — CSM

The Intelligence Identities Protection Act

Intelligence Identities Protection Act — Jennifer K. Elsea

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CIA “Roger”: Mike D”Andrea and the “Intelligence Identities Protection Act”