The Long, Tangeled, and Amazing History of IIPA

by Sara,

I've posted pieces of this over the life of Plamegate, but as we are getting to the end of this trial (I hope the first) just thought I would provide a historical review of the law in all its twists and turns.  The Story begins in late 1975.

Gerald Ford is President, George HW Bush is on home leave from China, Cheney is Ford's Chief of Staff, and Rummy is at DOD.  At the time, Bill Colby is DCI, and in recent months he has appeared before the Church Committee and "given up" the family jewels, those being all the records on the efforts to off Castro (powder in a diving suit -- exploding Cigar), And Congress is busy drafting laws about oversight on Intelligence, as well as the Freedom of Information Laws.  These guys see the house of secrets beginning to crash in on them. 

In December, Ford decided Colby should leave CIA, and he proposes George HW Bush to head the agency.  He is still not confirmed by the Senate.  In late December Richard Welch, CIA Chief of Station in Athens Greece, under light cover, was assassinated outside his villa in Athens.  As a way of being dramatic about the problems everyone had with testimony to the Church and Pike Committees, a very formal funeral was quickly arranged with Cheney and Rummy, GHWBush and Colby meeting the plane at Andrews with Welch's remains, everyone who was anyone packed into the small chapel at Arlington, and they gave him their best.  You know, if you get Kissinger to serve as pall bearer, you get the best. 

Following the burial, GHWBush developed the theory that Welch was identified and killed because Phillip Agee had spilled the beans on who he was.  In fact there had been a British leftish tabloid that identified him, though it was not publicly sourced to Agee.  So in his confirmation hearings, and in the then 11 months he headed the agency, GHWBush made passing an Intelligence Identities Protection Act one of his top priorities.  In one respect the bill was written as a tailored "get Agee" effort, in another respect it was designed as a "put the fear of God into them" effort to stop people like Sy Hersh whose late 1974 article had caused the Church-Pike hearings in the first place.  Bush got the CIA Job, served 11 months, but when Carter won the election he was told that Carter would appoint his own DCI.  Thus between the end of 76 and 1981 there was no action on the bill -- it was introduced in two congresses, but never got out of committee.  The problem was First Amendment matters.

OK -- so in 1981 GHWBush becomes Reagan's VP, and the pressure on Congress to pass the IIPA begins again.  This is where Victoria Toensing comes in -- she is in DOJ and gets the job of working with the committees to get it to the floor and get a vote.  The specific Journalist Protection language is inserted at this point, and finally Congress passes, and Reagan signs.  In many respects it is much narrower than the 1917 Espionage Law which provides no exceptions, and in this sense it could be seen as something of a gutting of that law.

I believe there has been one indictment under this law, which ended in a negotiated plea agreement -- thus there is virtually nothing to go on in case law as to how it could be applied. 

So, let's skip the rest of the Reagan Administration and get us right up to November 1989 and the fall of the Berlin Wall.  At this point the CIA boys jump on planes with suitcases full of money, and spread out in E. Germany to make nice deals with the Stasi boys.  They are after Stasi files related to Stasi International Operations, Stasi ops against American interests in Europe, Names of people in W European Governments who worked with Stasi over the years and of course names of Americans who might have worked with Stasi.  They found a mass of stuff, and it takes months to organize it, digitalize it, and begin to use it against old issues and cold cases.  The BND -- the W. German version of CIA gets testy with the Americans because they won't share properly -- and some of the files and people the CIA acquires are one of a kind things.  Of somewhat less interest to BND and more interest to the US, they also get, in 1989 and soon afterwards, the same sort of material from Poland, Romania, Bulgaria, Czechoslovakia, Hungary, and later the Baltics and then the old USSR itself.  In otherwords the intelligence turkey gets stuffed tight, and the eating takes time. 

BND keeps up the pressure on CIA to share the take, and eventually in the middle of the Clinton Administration, DVD's with Stasi documents and reports get released to them.  But in the meantime, the German Magazine, Der Speigel works on the Athens murder of Welch, because unlike CIA, they believe the murder is the responsibility of the 17 November group, which is related in various ways to the Red Army Faction of the early 80's in Germany.   Eventually they knock down the story -- and it is clear CIA made the wrong assumption.  The information in the British Magazine always cited as being from Phillip Agee was not from him, it was a Stasi operation all along.  Stasi had ID's Welch as CIA when he served in Peru, in fact he had tried to recruit a Stasi Officer unsuccessfully, and when he got sent to Athens they played that information to 17 November by passing it off to the British Publication, and then calling the Greek gang's attention to the material.  The Stasi wrote everything down, so when Der Speigel got it, they even got the drafts of the material on Welch.  And yes, Der Speigel published the material about 1994.  Sadly, and this is true of virtually all of the investigative work about Secret Police matters in E. Germany and the rest of the E. Block during the Cold War, it has never really been published in the US.   At any rate this is a case of writing a law about protecting covert officers that in the end is based on a false premise -- Agee did not turn over Welch's name to the British Publication.  Americans -- unless they are into reading German Weeklies have no idea.   

So now to the last step of this historical tale of a law.  When George W Bush was selected in 2000, Barbara Bush published a book, in a sense a hymn of praise to her anointed son.  In it, she re-tells the story of that awful man, Phillip Agee who caused the murder of CIA Station Chief Richard Welch, and how deeply this impacted her family.  Her son would not let something like this happen again.  In fact, her Husband was responsible for getting a law passed against it. 

Anyhow, at this point Agee is an older man, living in Cuba -- but he hired a lawyer, sued Barbara Bush, and acquired an out-of-court settlement, sealed of course, but some has leaked a little around the edges.  Babs admits she was factually wrong, agreed to change in any future edition, and apparently paid some damages.  Amount of damages is sealed -- but she can no longer make this claim about Agee. 

Given that at least three members of the Bush Family and Cheney were in on the beginnings of the IIPA, and that some legal scholars looking at IIPA against the 1917 Espionage Act (very broad) see IIPA as not really an intelligence officer protection statute, but rather as an exception for Journalists under certain conditions, I sometimes ask the question as to whether the manner of leaking Valerie Plame Wilson to the world might have been a very carefully tailored effort to follow the exceptions in that act?  In fact, if the Jury comes back Guilty on this, one of the things that ought to be thrown to Leahy and Conyers is whether they want to take a new look (not a quick look) at both these laws.  Generally, perhaps we should repeal IIPA, and revise the 1917 Espionage Act so as to provide some protections, though never if a Journalist is being used to cover up an illegality.  (and Journalist -- should that include Bloggers?)   

Comments

[Mr.Murder]

The IIPA was set up to establish ignorance as a defense.

That's why it so weak and flies at established law.

Especially regarding the realm of covert/intelligence work where it's your busienss to know anything you make statements on.

[jwp]

fascinating

[kim]

Very interesting Sara, as always. For different reasons, basically a massive distrust, I'd thought that Toensing might have been consulted by the OVP about Plame before the leak (perhaps through a third party like Matalin). I wouldn't mind having Fitz ask her about that.

[maunga]

It is good to see the facts set out so clearly, Sara. I assumed it had long been public knowledge in the US that Welch's death was a Stasi operation.

Your story would have had more power, though, Sara, if you had not misspelt Der SpIEgel throughout your piece.

[katie jensen]

It's very interesting indeed, the power and influence of the Bush dynasty vs the popularity and influence (attraction vs promotion) of the Kennedy dynasty. Throw in all the tradgedy and it's one of those things that makes you go "hmmm....".

[DeWitt Grey]

Sara:

Interesting issue you raise about the IIPA being seen as something of a "gutting" of the Espionage Act 1917. The Espionage Act was robust enough to prosecute Samuel Loring Morison in 1985 for delivering classified information to Jane's Defence Weekly. I still think the Espionage Act can be used to prosecute government employees who leak classified information that injures U.S. national security to unauthorized persons, particularly if the leaker has adequate reason to believe the information will be published (e.g., giving the information to a member of the press).

The provision of the Espionage Act aimed at unauthorized persons in possession of classified information is more troublesome, but not relevant to the betrayal of Valerie Plame Wilson and the Brewster-Jennings counterproliferation operation. I have no idea how Fitzgerald views the Espionage Act, but then on the other hand Dick Armitage has furnished a useful smokescreen that obscures just how Novakula obtained the information that Valerie Plame was working for CIA CPD -- the ultimate source for that was a government employee making an unauthorized disclosure of classified information to someone not entitled to receive it. Even with all of the disclosures made to date, there's still a lot more here that has yet to be disclosed.

[yodermon]

Wow, more IIPA talk. Strange.

Allow me to quote one of my favorite prosecutors, Patrick Fitzgerald. He made the following comment during the press conference he gave after obtaining an indictment against one I. Lewis Scooter Libby.

"..if national defense information which is involved because her affiliation with the CIA, whether or not she was covert, was classified, if that was intentionally transmitted, that would violate the statute known as Section 793, which is the Espionage Act."

If the Espionage Act is good enough for Fitz, then the IIPA can kiss my grits.

[joe falcone]

Being one of the enormously smart people who knows what IIPA means (like all enormously smart people), I just want to hold my knowledge over all the dumb people who don't know what IIPA means, and thank Sara for the opportunity to revel with her in our enormous smartness.

(The neat thing about claiming membership in this exclusive club is that I don't have to prove it -- I can just preten-- er, umm -- assert that I know what it means. I'm also a pretty benevolent member, and I'd like to suggest that someone write out the meaning of the acronym for those of us-- umm,er -- for those of our fellow readers who don't know what it means.)

[hesikastor]

Okay, Joe, I'm smart, too, and I know what it means, too. So what does it mean? The States are usually good at explaining histories halfway through, and weird acronyms, and ancient history of earlier than 5 yrs - the usual attention span. Maybe too good, sometimes. The Brits are awful at it. They studiously avoid clueing anyone in on anything, and so if you didn't get the first installment, you're lost.

I don't know much of anything, but Sara has made this very clear--even to a brain from which stuff like this bounces.

Thanks Sara. P.S. What does it mean? I can't even guess if it's 2 'I's or a Roman 2.

[mainsailset]

Intelligence Identities Protection Act (1982)

[hesikastor]

mainsailset - thanks. I got the "Intelligence" but that was all. I've written it down!

[hesikastor]

Me again: gotta say--spelt like that, it's pronounced Der Spy-gle!

[Gore Won]

What a wonderful article without the Vicki spin!

[Sara]

Ack, I should have wandered to the back room for a copy of Der Spiegel to check spelling. I arranged with a B&N back in 1989 to get and hold a copy for me each week for a time, and they are full of post-its and marked up with translation notes. The US Media did a reasonable job on the Wall itself, but was overly superficial on the politics, the Stasi stories, the realities of E German conditions. Publishers have little interest in memoires, political history, E-W Cultural differences, thus if it is published at all in the US, it is left to the small or Academic Presses. And yes, this accounts for the reality that the Right still claims Phillip Agee gave up Welch, as demonstrated by the fact that Barbara Bush used the story in her 2001 book, and got sued by Agee over the matter, and lost. And there really is a market for materials like this in the US -- if you count up all the American Students who participated in exchanges from the 50's through the 90's, and then add to that some of the Millions of Americans who served in various military commands in Germany over those years. But it is just a nitch market, and is treated as such. Today for most people anything about the Cold War is ancient history. But there are places to explore the new and accessable scholarship. Check out the Cold War History Project at the Woodrow Wilson Institute site. It's part of an international effort to share critical archives and publish on line in many cases, excellent papers and collections.

And there is always a new book to recommend: John Prados just published "Safe for Democracy: The Secret Wars of the CIA," Ivan Dee, 2006. Prados has perhaps 15 books out on National Security matters, is an Independent Scholar, and connected with the National Security Archives at GW University in DC. Prados is my source on the funeral for Welch and the change-over from Colby to GHWBush at CIA in 1975-76. I am just dipping into his latest, and am impressed. I think his 2004 book, "Hoodwinked: The documents that reveal how Bush sold us the War" is highly useful for both his early take on Plameology, but expanding it across his long time interests in Intelligence History.

[mainsailset]

Sara, after being tortured with sound bite news from a quick, but tortuous visit to the MSM just now, where there is this strange delight with inane minutia, it is always a relief to read one of your posts and those that share the keys to this blog, to see that there really are people left on this planet that READ and that live my favorite quip: Curiosity killed the cat, but satisfaction brought him back! (now if I could just find more books in large print!)

[joe falcone]

Now that I got past my frustration at not knowing what the hell IIPA was, I read this post, and it's very interesting.

I still don't understand why people don't routinely include the meanings of all uncommon acronyms. It's a rude habit. I know, I'm being rude myself for saying it. But it is.

[BirdGirlll]

Sara,

Full disclosure. There was a time (up until last year) when I saw the long posts with few paragraphs and no "byline," and I'd just skip over it (scroll, scroll, scroll ...) And, if I'd give the post a try, more often than not I'd find myself thinking "boy, this poster could use an editor."

What an unmitigated I fool I was.

I've learned so much! from your posts. Now, I WAIT for the next one from Sara (because you can't call them up from the Contributors list in the right frame ... hint, hint). This site is a treasure and you are in excellent (even brilliant) company here at TNH, Sara, and deservedly so.

Keep up the good work.

BG

[Sara]

Mainsailset -- while out at B&N last week I asked the computer guy to check the pub date on George Tenet's forthcoming grand work, and apparently the pub date has been set back, but they had not changed the dates on the audio version and the large print version which were supposedly already out. So -- you can pre-order Tenet in large print once a date is selected.

Joe Falcone -- I know what you mean when posts don't identify clearly acronyms, but people reading this site, particularly EW's posts would have seen it many many times. I just assumed everyone would know that IIPA was Intelligence Identities Protection Act.

I didn't underscore it, but what do readers think about the possibility that Cheney (as Ford's Chief of Staff in 75
-76) may have actually been in on the effort to craft the first draft of that act, which would then have been handed off to GHWBush to flog to Congress? They clearly wanted to cool the Church and Pike committees, and discourage Sy Hersh -- and the IIPA was something of a wrench in the gears. Cheney's closeness to the act's creation in the Ford WH, might well have informed him when considering how he was going to get Joe Wilson to shut up. Just askin'.

The 1917 Espionage Act has been used in recent years to extract exceptionally complete debriefings from our own Spies gone wrong, for example in the case of Aldrich Ames and Robert Hanssen. Under some circumstances it can carry the death penalty, and in both these cases they traded life without parole and a full debriefing in order to avoid death.

The reason I think it needs to be updated now is because of the several decades of overclassification of information, in many reasons not precisely for security purposes, and the wide availability of the same information as open source material. Example, before the Iraq invasion some quite elderly men I know, Physics PHD's who had worked in Government labs over the years -- Los Alamos, Oak Ridge, Livermore -- places like that, worked over the aluminum tubes message from Bush and got it as flim flam. They actually said it would be a good question on a second year College Physics exam -- essentially in physics terms, what's wrong with this picture? That's about as open source as you can get. Yet all the science analysis behind Bush's argument was held secret, and one can imagine someone making that argument being considered for indictment under the Espionage Act. What I think needs sorting out is a much cleaner and targeted act that also gets at the vast and useless overclassification. That's why I'd add to Leahy and Conyers lengthy "to do" list, this one more thing -- import protection of agents and intelligence officers out of IIPA into the general espionage act, and then repeal IIPA. Put real limits on classification of key materials, but declassify at an early date everything else. Conyers is already at work on this -- reversing GWBush's Executive order of 2001 on Presidential Papers, and going back to the 1978 law. By law we should now have two years of Clinton's papers, all of GHWBush's and all of Reagans. But Bush turned off the spicot.

[DeWitt Grey]

The Government naturally overclassifies its information, in no small part to deter politically embarrassing disclosures in the press. Your suggestion that Congress redraft the law to narrow the circumstances under which unauthorized disclosure is criminalized would make it much less likely that the Espionage Act could be used oppressively or vindictively.

Your suggestion does raise an issue that has been lurking in the background of the betrayal of Valerie Plame Wilson. How can the Government prove injury to the national security under section 793(d) of the Espionage Act in a public trial without potentially further injuring national security? I don't pretend to understand the intricacies of the Classified Information Procedures Act but I suspect this issue goes beyond CIPA because it concerns information the prosecution would like to put into evidence. That Fitzgerald has so far avoided this dilemma has brought forth howls of outrage from the VRWC, which had been apparently reckoning that the dilemma would kill the investigation if the stonewalling didn't.

[hesikastor]

Dunno if y'all visit Fitz's desk, but below is his take on his approach. A brilliant fable/parable, and makes it very clear. I quote:

The post from Firedoglake below reminds me of a story I often tell young prosecutors. ;)

“Two U.S. Attorneys, one a very special prosecutor and the other a young and eager legal eagle, are standing on top of Capitol Hill and looking down at a herd of evildoers on Pennsylvania Avenue stretching as far as the eye can see -- all the way to the White House.
Randall says, 'Hey Fitz, what do you say we race down there and convict one of those evildoers?' And Fitz says, 'No, Randy, let's walk down there — and convict them all.'”

I say we wait-another-minnit!

[mainsailset]

Sara, thanks for the heads up, I hadn't checked on Tenant for a few weeks. When my folks died I made a beeline into mom's library (which consisted of an attic, a hallway and the living room where she had a sign, "They got Alexander's library but they're not getting mine!" I remember hauling out books until I thought my back would break and then building bookshelves to the ceiling - most of the books are out of print versions (and I do so love the inkiness of old print on the thicker papers) Many have handwritten notes on the back of shopping lists marking memorable places for me to find.

hesikastor's Fitz story above of walking rather than running - sure hits the nail on the head and may I add a point from Jonas Saulk, that sometimes the journey is an equally important element.

[whitewidow]

Sara, you have a library of history in your mind. You never cease to amaze me. Most interesting. I remember thinking that the intelligence from eastern bloc would be such a treasure trove, and then wondering what ever became of all that information.

In light of Sy Hersh's article, I think you have nailed it. Cheney was counting on reporters not spilling on sources from the get-go, and knew full well what the limits of the IIPA were.

If Congress does not act, after having been basically invited to by Mr. Fitzgerald, the cover-up will have succeeded, to a large extent.

[prostratedragon]

This is a very interesting post, Sara. Aside from the general importance of history, it's a must to keep it in mind when dealing with the current crop.

Whether Cheney was there at the creation of IIPA or not, once I heard about the exacting details of the law last year I became convinced that someone was using it as a guide to setting up the implementation and cover-up of at least that part of the leak that we know about, with all the hot-potato among WHIG members and different hints and nudges to various journamalists. If you think about it, their whole MO, not just in the leak affair, is to manipulate laws in this fashion, in some way over-stressed version of using every loophole and staying just barely in technical compliance—when they're not inventing legal theory out of whole trumpery, that is. Whenever I try to explain to myself why they seem so much more inimical than anything I've ever seen or read of in our government, this weaselliness is one of the main things I keep coming back to. (Not the only thing, I'm afraid8( )

[Bible history timeline]

I have always conceived of the God of the Bible as an engineer before he is a king. Unlike any other king, he is the maker of his realm, and as a perfect being, he must clearly put perfect thought into perfect design and then into perfect form. I admit that I believe in the creation story, if just not quite the timeline that is literally associated with it by young Earth creationists. For certain reasons, reasons I won't go into, I can conceive of how it is possible.