This week former CIA case officer John Kiriakou was charged with two counts of violating the Espionage Act, one count of making false statements (Kiriakou is accused of having lied to the CIA's pre- publication review border about portions of his books being “fictionalized”), and one count of violating the Intelligence Identities Protection Act.
Passed in 1982, the Intelligence Identities Protection Act was designed to deter and punish people like Philip Agee, a CIA officer turned rogue, who published a book on the agency (Inside the Company: CIA Diary) and a newsletter titled “CovertAction Information Bulletin,” in which he outed CIA case officers stationed abroad. So far, there has only been one prosecution under the Intelligence Identities Protection Act, that of Sharon Scranage who was charged under the act in 1985 because she passed information to her Ghanaian boyfriend who turned out to be a Ghanaian intelligence operative.
Lying to the federal government is frequently punished and the Obama's use of the Espionage Act to suppress whistle blowers is almost routine. However, neither fact reduces the irony of the Obama-Biden administration's use of the Intelligence Identities Protection Act to prosecute a CIA case officer's whistle blowing to the media.
The irony of Kiriakou's situation arises from the fact that as Senator Biden, Joe Biden opposed the Intelligence Identities Protection Act on the grounds that it would deter legitimate media investigations into national security issues. As shown by Biden's April 6, 1982 op-ed in the Christian Science Monitor. Titled "A Spy Law That Harms National Security," Biden worried that the language as it stood then and as it passed would he called supporting the Act a "mistake" that would hinder the press from performing this vital function”
"the mere threat of such prosecution would be enough to dissuade many news organizations from pursuing stories of this kind, out of fear of the legal entanglements and cost which might result even if a reporter is finally acquitted”
and this would
"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.”
All of which Biden argued, posed a real risk to American national security.
While opposition to the Intelligence Identities Protection Act was sparse (only 32 voted against in the house, while Biden was one of only 4 senators to oppose in the senate. He was joined by Daniel Patrick Moynihan, Gary Hart, and one Republican Charles Mathias), it did exist. After the bill passed the Senate, Moynihan warned that:
It seems Biden and Moynihan are being proved right."It now appears that we will soon have a law which, while making it easier to convict scoundrels, will chill the exercise of First Amendment rights." (1)
(1) "Bill to Penalize Uncovering of Agents Passed by Senate," New York Times, 6/11/1982. pg a20