Who is a 'covert agent'? CIA bid to expand the category raises alarm for civil liberties groups

Jenna McLaughlin
National Security and Investigations Reporter
Photo illustration: Yahoo News; photos: Getty Images, AP, Getty Images

WASHINGTON­ — In 1975, Richard Welch, the CIA station chief in Athens, was murdered in front of his home as he returned with his wife from a Christmas party.

Intelligence officials said Welch’s identity had been compromised by stories in Greek and American news outlets. A Communist terror group known as 17N was blamed for the assassination.

Welch’s death and other incidents, including an attack on the home of an undercover officer in Jamaica in 1980, prompted the passage of the Intelligence Identities Protection Act, which makes it a crime to reveal the identities of undercover officers serving the CIA abroad. President Ronald Reagan signed it into law in 1982.

Now, decades later, the CIA is seeking to widen those protections.

A provision included in current legislation making its way through both the House and Senate would expand the definition of a “covert agent” to potentially include officers or contractors working within the United States. It would also extend the identity protection indefinitely. Under current law it expires five years after the agent leaves their position.

The agency’s letter to the Senate Intelligence Committee justifying the request, which was obtained by the New York Times, read in part: “Particularly with the lengths organizations such as WikiLeaks are willing to go to obtain and release sensitive national security information, as well as incidents related to past Agency programs, such as the RDI [retention, detention and interrogation] investigation, the original congressional reasoning mentioned above for a narrow definition of ‘covert agent’ no longer remains valid.”

Proponents of the change argue the added protections are necessary in a digital age, when publications like WikiLeaks can access and publish reams of data on CIA personnel, past and present. Officers are prohibited from directly gathering foreign intelligence within the U.S., but they serve in sensitive jobs doing analysis, cyber operations and recruitment of American businesspeople and other professionals to help gather intelligence — and they might go undercover abroad in the future.

However, activists are concerned the provision, which is written extremely broadly, could allow CIA officers or contractors to escape legal scrutiny indefinitely as well as prevent journalists from writing about agency activities and personnel. Nonprofit transparency groups Open the Government and the Project on Government Oversight have led an effort to raise awareness in Congress on the potential change, including publishing a letter on Monday evening, signed by 29 organizations, asking Congress not to pass the revisions.

When the Intelligence Identities Protection Act was first proposed in the early 1980s, opponents raised similar objections on First Amendment grounds.

Then-Sen. Joe Biden wrote an op-ed in the Christian Science Monitor arguing that the law, while “sound and necessary” in principle, could lead to the prosecution of journalists who sought to expose corruption in the intelligence community. “Because of this, the legislation ultimately will harm, not help, our national security interests,” he wrote. A representative for Biden, now a candidate for president, did not respond to a request for comment on the proposed revisions to the law.

After lengthy legislative battles on the Hill, including the addition of provisions designed to protect journalists, Reagan signed the bill on June 23, 1982.

“You are the tripwire across which the forces of repression and tyranny must stumble in their quest for global domination,” Reagan told an audience of CIA officers at Langley that day. “This carefully drawn act recognizes that the revelation of the names of secret agents adds nothing to legitimate public debate over intelligence policy.”

Since then, the law has been used to prosecute offenders only twice.

First, in 1985, CIA operations support assistant Sharon Scranage was arrested for sharing the names of CIA operations officers with her lover in Ghana, who was cooperating with Ghanaian intelligence services.

Then, in 2012, former CIA officer John Kiriakou pleaded guilty to revealing the name of a CIA contractor to a freelance reporter in an email, though the reporter did not publish the name. The person was later revealed to have been working for Mitchell Jessen and Associates, psychologists contracted to develop the agency’s so-called “enhanced interrogation techniques” now commonly described as torture. His identity was not secret, the CIA said, but his employment with the CIA was.

Former CIA officer John Kiriakou leaves a courthouse in Alexandria, Va., in 2012 after pleading guilty to leaking the names of covert operatives to journalists. (Photo: Cliff Owen/AP)

Kiriakou, though he has expressed regret for revealing the name, has argued CIA’s standards for applying the law have been inconsistent. Richard Armitage, the former deputy secretary of state, and Scooter Libby, adviser to Vice President Dick Cheney, were not prosecuted under the act after former CIA officer Valerie Plame’s cover was blown based on a tip they helped provide to the Washington Post in 2003, and former CIA Director David Petraeus, who shared classified information including names with his former lover and biographer Paula Broadwell, ultimately only pleaded guilty to one count of unauthorized removal and retention of classified information.

However, prosecutors can also utilize the much harsher Espionage Act for offenders they believe have illegally disclosed defense-related classified information. The Intelligence Identities Protection Act may serve as an intermediate option; depending on the circumstances, an offense carries a maximum penalty of 15 years in prison or a fine of $250,000. Kiriakou and Scranage each served close to two years in prison.

A possible expansion of the definition of “covert agent” has been proposed in pending legislation in both the Senate and the House. The provision, which was included in the Senate’s version of the Intelligence Authorization Act for 2018, 2019 and 2020, passed the Senate Intelligence Committee unanimously and is now included in the broader defense funding bill before the entire Senate.

The CIA’s intention in asking for the expanded protections was to offer the agency more power to prosecute actors like WikiLeaks who have exposed the names and operations of CIA officers at home and abroad, according to one congressional staffer. The threat posed by WikiLeaks and similar organizations and its relation to the Intelligence Identities Protection Act was explored in a 2013 report for Congress.

Steven Aftergood, the director of the Project on Government Secrecy at the Federation of American Scientists, was the first to highlight the new provision in his newsletter. He told Yahoo News there might be a good reason for the change, but those reasons are not clear.

“In principle, I think there is room to consider tailored steps to increase protections for ‘covert agents’ in light of the many developments — the Internet, social media, wholesale leaks, cyber operations, etc.,” he wrote in an email to Yahoo News. “But CIA has not articulated a clear public argument in favor of the latest amendment,” he continued.

When the provision was introduced within the Senate Intelligence Committee, Ron Wyden, D-Ore., expressed concern that the language, which bestows secrecy upon a wide range of people working for the CIA, “applies indefinitely” including for “individuals who have been in the United States for decades and have become senior management or retired.”

Wyden, in a statement on the bill, said he was “not yet convinced” that the additional protections are necessary, and said there was a potential it could be “employed to avoid accountability.”

Wyden disclosed that in the CIA’s letter to the Senate Intelligence Committee justifying the change, the agency referenced “incidents” tied to the “rendition, detention and interrogation” program as an example of something the expansion might help prevent.

Sen. Ron Wyden, D-Ore. (Photo: Nicholas Kamm/AFP/Getty Images)

“CIA officers place themselves in harm’s way in order to carry out CIA’s mission regardless of where they are based,” wrote Timothy Barrett, a CIA press secretary in an email to Yahoo News. “Protecting officers’ identities from foreign adversaries is critical.”

Civil liberties activists as well as people familiar with ongoing military commission investigations into the torture program argue the agency may be trying to prevent CIA officers or contractors from being interviewed, named and held accountable for their actions, even years after leaving positions overseas. The CIA for its part has consistently argued it held specific officers accountable for the excesses of the torture program, and that its behavior was legal and authorized by the CIA and the White House.

“There’s ongoing efforts to prevent CIA evidence from entering courts,” said Katherine Hawkins, an investigator for the Project on Government Oversight during a phone interview. “I do think it would be used as justification for why CIA officers can’t be prosecuted. I think that would have a bad effect on accountability.”

However, the government has already prevented investigators’ access to people who worked for the CIA on torture. In 2017, the government told the military commissions working on 9/11 terrorism cases that defendants “should make no independent attempt to locate or contact any current or former CIA employee or contractor, regardless of that individual’s cover status.” A judge upheld that guidance. The proposed change would likely reinforce that stand, though it’s unclear if it would lessen or change investigators’ level of access.

First Amendment advocates believe the proposed change could have a chilling effect on journalists investigating the CIA.

“This language is almost unbelievably broad, drastically expanding felony criminal penalties for the disclosure of [many categories] of information about the intelligence agencies, even if those disclosures might be in the best interest of the government and the country,” wrote Emily Manna, a policy analyst for Open the Government in an email to Yahoo News. “There would likely be a significant chilling effect on journalists and government whistleblowers.”

It’s worth noting that the original law stipulated that criminal sanctions would only apply for people without security clearances if there was “a pattern of activity” to expose agents with the intent to “harm U.S. intelligence operations,” according to the 2013 Congressional Research Service report. Those protections still stand even if the language defining “covert agent” is amended.

Despite concerns, skeptics of the provision told Yahoo News they would be open to more carefully crafted language, targeted at protecting at-risk officers from new threats.

“There needs to be a system to protect the true identities of domestic, covered intelligence officers. That’s not controversial,” wrote Irvin McCullough, a national security analyst for whistleblower protection nonprofit Government Accountability Project, in an email to Yahoo News.

“What is controversial is the process behind this section of the bill. Instead of addressing civil societies and the public’s concerns, which I see as reconcilable with the provision’s intent, the American people are being boxed into accepting language that could have threatening, unintended consequences affecting accountability and transparency,” he continued.

“We should examine and address this provision’s effects before we change the law.”

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