Intelligence Law School - Course 1: Lesson 4.6.2 Federal Intelligence Crimes and Criminal Procedure


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LESSON 4: STATUTORY LAW


4.6 Penal Statutes (U.S. Code Title 18: Crimes and Criminal Procedure)


4.6.2 Federal Intelligence Crimes and Criminal Procedure


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4.6.2 Federal Intelligence Crimes and Criminal Procedure

4.6.2.1 Intelligence Crimes Generally

There are a lot of penal statutes relevant to intelligence law.

 

Ø  The Espionage Act: For example, the Espionage Act of 1917[1] and related statutes.[2]

o   It’s codified in Title 18 as Chapter 37.[3]

Ø   

Ø  The Posse Comitatus Act: The Posse Comitatus Act is another statute relevant to many domestic DoD Intelligence operations.

o   It makes it a felony to use military resources and personnel for civilian law enforcement in the United States.[4] 

o   Congress has crafted a loophole for providing certain types of assistance to civilian law enforcement, including sharing equipment and information under some circumstances.[5]

o    

Ø  The Wiretap Act: The Wiretap Act, which, like FISA, has criminal provisions making warrantless wiretapping a felony.

o   Specifically, Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (known simply as “Title III”), and a later statute called the Electronic Communications Privacy Act of 1986 (“the ECPA”), made it a felony for any person to conduct warrantless wiretapping or engage in various other forms of electronic eavesdropping.[6]

o   They also made it a separate felony to disclose anything obtained from proscribed eavesdropping activities.

o   In 1986, the ECPA changed the original Title III statute also made it a felony to hack stored communications.[7]

o    

Ø  Police Wiretaps: Title III also contains the procedures for conducting wiretaps in criminal investigations.

o   I’ll come back to it in a second after I finish running through relevant criminal statutes.

 

4.6.2.2 Intelligence Crimes Codified in Other Titles of the U.S. Code

Most penal statutes are found in Title 18 of the U.S. Code, but there are many penal provisions scattered in almost all Titles of the Code.

The Anti-Agee Act, for example, is codified in Title 50.

Ø  50 U.S.C. § 421: The Intelligence Identities Protection Act (The Anti-Agee Act): The Anti-Agee Act is really called the Intelligence Identities Protection Act, and it’s codified in Title 50, Chapter 15 as an amendment to the National Security Act of 1947.

o   It criminalizes knowingly revealing the identity of a covert agent. The story of this statute starts with a disgruntled ex-CIA officer.

o   Philip Agee was an ex-CIA operations officer who went nuts after he left the agency and started a campaign to destroy his former employer—or at least disrupt its activities.[8]

o   He went around teaching foreign audiences about the CIA’s tradecraft, and he published the names of over 1000 CIA employees around the world.

o   Because of the unprecedented nature of Agee’s breakdown, there was no criminal law that specifically outlawed what he was doing.

o   The entire Intelligence Community was furious and quite frustrated by the inability to get this guy.[9]

o   Their frustration over the legal loophole motivated Congress to act.[10]

o   They remedied the gap with a new penal statute called the Intelligence Identities Protection Act of 1980—or the “Anti-Agee Act.”[11]

o   It criminalizes knowingly revealing the identity of a covert agent.[12]

§  This statute is what got Vice President Cheney’s Chief of Staff, Scooter Libby, in trouble in the Valerie Plame affair, although he was ultimately convicted of other things.

 

Footnotes

[1] The Espionage Act of 1917, 40 Stat. 422, 18 U.S.C. §§ 793– 798; see also generally Jennifer K. Elsea, Congressional Research Serv., Criminal Prohibitions on the Publication of Classified Defense Information (2010), available at https://intelligencelaw.com/files/pdf/law_library/crs/R41404_12-6-2010.pdf (“National defense information in general is protected by the Espionage Act, 18 U.S.C. §§ 793– 798, while other types of relevant information are covered elsewhere. Some provisions apply only to government employees or others who have authorized access to sensitive government information, [Citing E.g., 18 U.S.C. §§ 952 (prohibiting disclosure of diplomatic codes and correspondence), 1924 (unauthorized removal and retention of classified documents or material); 50 U.S.C. § 783 (unauthorized disclosure of classified information to an agent of a foreign government, unauthorized receipt by foreign government official)] but the following provisions apply to all persons. 18 U.S.C. § 793 prohibits the gathering, transmitting, or receipt of defense information with the intent or reason to believe the information will be used against the United States or to the benefit of a foreign nation. Violators are subject to a fine or up to 10 years imprisonment, or both, as are those who conspire to violate the statute. Persons who possess defense information that they have reason to know could be used to harm the national security, whether the access is authorized or unauthorized, and who disclose that information to any person not entitled to receive it, or who fail to surrender the information to an officer of the United States, are subject to the same penalty. Although it is not necessary that the information be classified by a government agency, the courts seem to give deference to the executive determination of what constitutes “defense information.” Information that is made available by the government to the public is not covered under the prohibition, however, because public availability of such information negates the bad-faith intent requirement. On the other hand, classified documents remain within the ambit of the statute even if information contained therein is made public by an unauthorized leak.”) (most internal footnotes omitted).

[2] E.g. 18 U.S.C. § 798 (“Disclosure of classified information (a) Whoever knowingly and willfully communicates, furnishes, transmits, or otherwise makes available to an unauthorized person, or publishes, or uses in any manner prejudicial to the safety or interest of the United States or for the benefit of any foreign government to the detriment of the United States any classified information—-(1) concerning the nature, preparation, or use of any code, cipher, or cryptographic system of the United States or any foreign government; or (2) concerning the design, construction, use, maintenance, or repair of any device, apparatus, or appliance used or prepared or planned for use by the United States or any foreign government for cryptographic or communication intelligence purposes; or (3) concerning the communication intelligence activities of the United States or any foreign government; or (4) obtained by the processes of communication intelligence from the communications of any foreign government, knowing the same to have been obtained by such processes—-Shall be fined … or imprisoned not more than ten years, or both.”).

[3] 18 U.S.C. Chapter 37: Espionage and Censorship, 18 U.S.C. §§ 791-799.

[4] 18 U.S.C. § 1385 (“Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”); see also generally Jennifer Elsea, Congressional Research Serv., The Posse Comitatus Act and Related Matters: A Sketch (2005), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20590_6-6-2005.pdf (“The Posse Comitatus Act states that: Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both. 18 U.S.C. § 1385. It reflects an American tradition that bridles at military involvement in civilian affairs. Congress, however, has approved a number of instances where extraordinary circumstances warrant a departure from the general rule, particularly in cases where the armed forces provide civilian assistance without becoming directly involved in civilian law enforcement.”).

[5] See Jennifer Elsea, Congressional Research Serv., The Posse Comitatus Act and Related Matters: A Sketch (2005), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS20590_6-6-2005.pdf (“The Posse Comitatus Act does not apply where Congress has expressly authorized use of the military to execute the law. Congress has done so in three ways, by giving a branch of the armed forces civilian law enforcement authority, by establishing general rules for certain types of assistance, and by addressing individual cases and circumstances with more narrowly crafted legislation. Thus it has vested the Coast Guard, a branch of the armed forces, with broad law enforcement responsibilities. Second, over the years it has passed a fairly extensive array of particularized statutes, like those permitting the President to call out the armed forces in times of insurrection and domestic violence, 10 U.S.C. §§ 331-335. Finally, it has enacted general legislation authorizing the armed forces to share information and equipment with civilian law enforcement agencies, 10 U.S.C. §§ 371-382.”).

[6] See Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf (“Unless otherwise provided, Title III/ECPA outlaws wiretapping and electronic eavesdropping; possession of wiretapping or electronic eavesdropping equipment; use or disclosure of information obtained through illegal wiretapping or electronic eavesdropping; and disclosure of information secured through court-ordered wiretapping or electronic eavesdropping, in order to obstruct justice, 18 U.S.C. 2511. Elsewhere, federal law proscribes: unlawful access to stored communications, 18 U.S.C. 2701; unlawful use of a pen register or a trap and trace device, 18 U.S.C. 3121; and abuse of eavesdropping and search authority or unlawful disclosures under the Foreign Intelligence Surveillance Act, 50 U.S.C. 1809, 1827.”).

[7] See Gina Marie Stevens & Charles Doyle, Congressional Research Serv., Privacy: An Overview of Federal Statutes Governing Wiretapping and Electronic Eavesdropping, 98-326 (2009), available at https://intelligencelaw.com/files/pdf/law_library/crs/98-326_12-3-2009.pdf (“At the heart of Title III/ECPA lies the prohibition against illegal wiretapping and electronic eavesdropping, 18 U.S.C. 2511(1), that bans: any person from intentionally intercepting, or endeavoring to intercept, wire, oral or electronic communications by using an electronic, mechanical or other device unless the conduct is specifically authorized or expressly not covered, e.g. one of the parties to the conversation has consent to the interception the interception occurs in compliance with a statutorily authorized, (and ordinarily judicially supervised) law enforcement or foreign intelligence gathering interception, the interception occurs as part of providing or regulating communication services, certain radio broadcasts, and in some places, spousal wiretappers.”).

[8] See generally Haig v. Agee, 453 U.S. 280 (1981); see also generally Jennifer K. Elsea, Congressional Research Serv., Protection of National Security Information (2006), available at https://intelligencelaw.com/files/pdf/law_library/crs/RL33502_12-26-2006.pdf (“Philip Agee was a former CIA agent who engaged in a “campaign to fight the United States CIA,” which included publishing names of CIA operatives around the world. In order to put a stop to this activity, the Department of State revoked his passport. Agee challenged that action as an impermissible burden on his freedom to travel and an effort to penalize his exercise of free speech to criticize the government. The Supreme Court disagreed, finding the passport regulations constitutional because they may be applied “only in cases involving likelihood of ‘serious damage’ to national security or foreign policy.””) (internal footnotes omitted).

[9] The Secretary of State came up with a brainstorm and used a provision of the Passport Act to revoke Agee’s passport, effectively locking him down in one country. The hope was to prevent him from taking his course material on the road to the Soviet Union and hopefully force him to return home to the United States—the only place he could gain entry without a passport. Agee didn’t want to come home—as you might imagine—instead, he challenged the revocation of his passport on First Amendment and other grounds. The Supreme Court wasn’t in the mood to help this guy out in any way, so they upheld the Secretary of State’s revocation. See Haig v. Agee, 453 U.S. 280, 305-06 (1981).

[10] See Elizabeth B. Bazan, Congressional Research Serv., Intelligence Identities Protection Act (2003), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS21636_10-3-2003.pdf (“In 1982, the Intelligence Identities Protection Act was enacted into law as an amendment to the National Security Act of 1947. This Act was a response to concerns of members of the House and Senate Intelligence Committees and others in Congress “about the systematic effort by a small group of Americans, including some former intelligence agency employees, to disclose the names of covert intelligence agents.” The Senate Judiciary Committee’s report also discussed the efforts of Philip Agee, Lewis Wolf, and others to identify and disclose U.S. intelligence officers as part of “a systematic effort to destroy the ability of [U.S.] intelligence agencies to operate clandestinely,” and their apparent repercussions. Such disclosures preceded and may have contributed to circumstances resulting in the death or attempted assassination of some CIA officers, expulsion of others from a foreign country following charges of spying, and impairment of relations with foreign intelligence sources. Two of Agee’s books revealed over 1,000 names of alleged CIA officers. Wolf was co-editor of the “Covert Action Information Bulletin,” a publication which contained a section entitled “Naming Names.” Wolf claimed to have revealed the names of over 2,000 CIA officers. He also provided addresses, phone numbers, license tag numbers, and colors of the automobiles of some alleged intelligence agents. Such calculated disclosures set the stage for the consideration and passage of the Intelligence Identities Protection Act.”) (internal footnotes omitted).

[11] Act of July 26, 1947, c. 343, Title VI, §§ 601-606, as added by P.L. 97-200, § 2(a), 96 Stat. 122 (June 23, 1982).

[12] See Elizabeth B. Bazan, Congressional Research Serv., Intelligence Identities Protection Act (2003), available at https://intelligencelaw.com/files/pdf/law_library/crs/RS21636_10-3-2003.pdf (“In 1982, Congress passed the Intelligence Identities Protection Act, P.L.97-200. The Act, as amended, is codified at 50 U.S.C. §§ 421-426. Under 50 U.S.C. § 421 criminal penalties are provided, in certain circumstances, for intentional, unauthorized disclosure of information identifying a covert agent, where those making such a disclosure know that the information disclosed identifies the covert agent as such and that the United States is taking affirmative measures to conceal the covert agent’s foreign intelligence relationship to the United States. Other sections of the Act provide exceptions and defenses to prosecution, make provision for extraterritorial application of the offenses in section 421, include reporting requirements to Congress, and set forth definitions of the terms used in the Act. There do not appear to be any published cases involving prosecutions under this Act.”).

 


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