Steven T. Usdin is the author of Bureau of Spies: The Secret Connections between Espionage and Journalism in Washington.

If Julian Assange leaves the Ecuadorian Embassy in London, he’ll likely face criminal charges in the United States. We know this thanks to an inadvertent disclosure in a federal court filing—the result of a cut-and-paste blunder by prosecutors.

That the Justice Department is preparing charges against the WikiLeaks founder isn’t exactly unexpected—he did, after all, publish thousands of classified government documents, and allegedly has close ties to Russian intelligence (which Assange has repeatedly denied). But what is genuinely surprising is the degree to which the case against Assange mirrors a long-forgotten episode four decades ago—and what that portends for the inevitable First Amendment clash it will cause.


It may not be possible—and the Trump administration may not be interested in trying—to pinpoint specific types of disclosures as criminal without eroding the free speech protections that American journalism relies on to hold government accountable. Depending on the charges against Assange, the case could require the government to distinguish between the lawful reporting of information in the public interest and the illegal theft and dissemination of government secrets, between the legitimate practice of journalism and criminal activities that advance the goals of democracy’s enemies.

This isn’t the first time the U.S. has faced these kinds of questions. Four decades ago, CIA defector Philip Agee and his comrades went about leaking government secrets in books and in a magazine called CovertAction Information Bulletin—with remarkable similarities to the case of Assange and WikiLeaks.

Like Assange, Agee claimed First Amendment protections while disseminating classified information. He and his associates made no effort to hide their dedication to destroying American intelligence agencies’ ability to spy on or disrupt adversaries. Agee was seen by many Americans as a threat to national security, yet there was widespread fear that any attempt to stop him—and especially his associates who had never held government jobs—from publishing secrets would erode the independence of the press. He was accused of having close ties to foreign intelligence services. And just as Assange and WikiLeaks have conspicuously failed to target the abuses of Russia’s intelligence services, Agee and CovertAction ignored atrocities and human rights violations committed by communist governments.

Agee’s book, Inside the Company: CIA Diary, published in 1975, revealed details of CIA covert operations in Latin America, including the identities of 250 of its undercover officers and the names of individuals they had recruited as informants. While Agee lived in self-imposed exile starting in 1978, he inspired and helped a small group of like-minded activists to publish CovertAction from an office in downtown Washington’s National Press Building.

An article in the inaugural issue of CovertAction called the CIA the “Gestapo and SS of our time” and asserted that “exposure of its secret operations—and secret operatives—remains the most effective way to reduce the suffering they cause.” The magazine proposed a “novel form of international cooperation” in which opponents of the CIA would scour lists of Americans working as diplomats or on aid projects, identify likely CIA operatives based on telltale signs described by Agee, and send the information to CovertAction. The magazine promised to check the research and publish all the information it could confirm. It made clear its goals: destruction of the CIA and, ultimately, the installation of a pro-Soviet, communist government in Washington. From the start, it urged readers to collaborate in the struggle against the CIA, “together with the struggle for socialism in the United States itself.”

In the pages of CovertAction and several books co-written by its staff members, the covers of more than 2,000 undercover CIA officers were blown, and numerous agency operations around the world were exposed. The disclosures dealt a “body blow” to the agency, according to an article published in 1975 in Studies in Intelligence, a magazine published by the CIA for intelligence professionals.

CovertAction claimed that it had no connections with foreign intelligence agencies and that its ability to “name names” was based entirely on exploitation of open sources. State Department directories could, if carefully perused, reveal patterns or inconsistencies showing that someone who claimed to be a low-level diplomat was, in fact, a CIA officer. Some of the names revealed by Agee and his collaborators were obtained in this way, but CovertAction didn’t restrict its activities to combing through dusty directories at the National Archives.

Information that leaked from the KGB after the dissolution of the Soviet Union, including notes smuggled out by KGB archivist Vasili Mitrokhin and the memoirs of former KGB General Oleg Kalugin, indicate that Agee operated in concert with—and, in many cases, at the direction of—both the KGB and Cuban intelligence. The KGB took credit for CovertAction, claiming in an internal memo Mitrokhin saw that the magazine was founded “on the initiative of the KGB.”

The KGB created a task force dedicated to supplying CovertAction with material that would harm the CIA. For example, in 1979, according to Mitrokhin’s notes, two KGB officers “met Agee in Cuba and gave him a list of CIA officers working on the African continent.” Some of this information was featured in CovertAction, including the identities of 16 CIA station or base chiefs on the continent. In addition to providing names of agency officers, Soviet intelligence gave the magazine a stream of classified documents that exposed CIA activities around the world.

Agee argued, dishonestly, that any allegation he was serving the KGB was a smear. At the time, there was no definitive evidence to refute Agee—although his frequent visits to Fidel Castro’s Cuba provided circumstantial evidence that he was at least tolerated by communist intelligence services.

In the wake of the Vietnam War and the Watergate scandal, Agee and his collaborators became heroes to some Americans who had come to believe that government institutions, especially its intelligence services, were irredeemably evil. While this was a minority view, there was no obvious way to prevent CovertAction from naming names of undercover CIA officers: There is no Official Secrets Act in the United States, and the American free press has a rich tradition of using leaks of classified information to shine a light on nefarious government activities.

Though there was near universal disdain for Agee in Congress and on the editorial pages of American newspapers, when a bill was introduced in 1975 with the explicit goal of stifling Agee by criminalizing disclosures of the names of American covert operatives, the legislation floundered.

Similar unease abounded over the possibility of targeting the individuals on the editorial staff of CovertAction, who maintained that they were publishing educated guesses or secrets leaked by government employees. The publication claimed that it would be impossible to criminalize its disclosures without giving the government the ability to throw journalists in jail for revealing secrets like those contained in the Pentagon Papers.

Nevertheless, the movement to crack down on CovertAction was revitalized in 1980 after the home of the CIA station chief in Kingston, Jamaica, was raked by bullets. His identity and home address had been revealed by CovertAction two days before.

In January 1981, the Intelligence Identities Protection Act was introduced in the U.S. House, with the aim of making it a federal crime to engage in “a pattern of activities intended to identify and expose covert agents … with reason to believe that such activities would impair or impede the foreign intelligence activities of the United States.”

The New York Times, which had no sympathy for Agee or CovertAction, branded the retired CIA officer a “villain for all seasons” and said the outlet’s staff “don’t even pretend to distinguish between useful and questionable spy projects.” Nonetheless, the Times warned in an editorial that the pending legislation “strikes at every reporter and scholar who would publish facts that Government prefers to keep concealed.” The Times and other newspapers engaged in a lively debate about the definition of journalism, whether CovertAction was entitled to First Amendment protections, and fears that any attempt to restrict publication of secrets would lead to unacceptable limits on legitimate news.

“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,” Democratic Senator Joe Biden wrote in a Christian Science Monitor piece opposing the proposal. “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.”

Ultimately, a Democratic House and Republican Senate passed the Intelligence Identities Protection Act, which President Ronald Reagan signed into law at a June 1982 ceremony at CIA headquarters.

The New York Times editorialized that any legislation that attempted to prevent private citizens from publishing names of CIA operatives was “fraught with danger for all journalists,” and it called on the courts to “wipe the law from the books.”

Thirty-six years later, the Intelligence Identities Protection Act is still the law. To date, two people have been convicted of violating it: John Kiriakou, a CIA officer who was convicted in 2013 of emailing the name of a CIA officer to a journalist, and Sharon Scranage, a CIA clerk who provided intelligence to a Ghanaian intelligence officer. The law was also invoked in the Valerie Plame case, when New York Times reporter Judith Miller was jailed as a result of an investigation of possible violations of the Intelligence Identities Protection Act. Miller refused to testify about sources the government believed had revealed the identity of Plame, a covert CIA officer whose husband, Ambassador Joseph Wilson, was a vocal opponent of the Bush administration’s war in Iraq.

Conservative politicians jumped to Miller’s defense. Mike Pence, who at the time represented Indiana in the U.S. House, co-sponsored a media shield bill to protect reporters like Miller from prosecution under the Intelligence Identities Protection Act. “Now is the time for Congress to reassert the First Amendment, freedom of the press, vigorously by enacting a federal media shield,” Pence said on the floor of the House in 2006. “Nothing less than the public's right to know is at stake.” The bill died quietly, and it is difficult to imagine now-Vice President Pence endorsing similar legislation today.

There are important differences between Assange and Agee. Unlike Agee, Assange never worked for an intelligence agency and has not signed secrecy pledges. Agee said he was motivated by a midlife conversion to Marxism, while Assange hasn’t attributed his actions to an ideology.

Despite these differences, the similarities in the First Amendment and national security issues are striking. This is especially true of the CovertAction staff, which didn’t include former government officials who could be called to account for disclosing secrets they’d pledged to protect.

The blooper that tipped off the public to the Justice Department’s case against Assange didn’t indicate what crime he would be charged with. But unless the charges are wholly unconnected with the WikiLeaks disclosures, it is certain that prosecution of Assange would reprise the debates that raged over Agee and CovertAction that led to enactment of the Intelligence Identities Protection Act. The fear that the government will misuse its authority to crack down on dissent is even more widespread now.

And this time, with a president who routinely labels journalists “enemies of the people,” the argument over whether punishing those who publish national security leaks violates the First Amendment guarantee of a free press will likely have an even uglier, more stridently partisan tone.