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In addition to the FBI, which has the primary CI responsibility in the United States, and the CIA, the Defense Investigative Service and the counterintelligence units of virtually all intelligence agencies or offices share some CI responsibility. The diffusion of the CI effort reflects the organization of the community and also highlights why coordination on CI cases has been problematic. To remedy this, Congress, in 2002, passed the Counterintelligence Enhancement Act, which called for the creation of the National Counterintelligence Executive (NCIX). The NCIX is the head of U.S. counterintelligence and is responsible for developing counterintelligence plans and policies. This includes an annual strategic CI plan, a national CI strategy, and the oversight and coordination of CI damage assessments. The NCIX directs the Office of the National Counterintelligence Executive, which had been under the office of the DCI. The intelligence law of 2004 puts the NCIX under the new DNI. NCIX has no control, however, over the agencies or offices that conduct counterintelligence. Therefore, there is something of a disconnect between the office creating a fairly broad and general strategy and those offices responsible for actually conducting counterintelligence.

LEAKS

Leaks are a constant security concern. They may not be seen as being as dangerous as an espionage penetration but they can have obvious counterintelligence concerns, because leaks often entail the unauthorized release of classified information. It is a generally held view that the leak problem is much worse now that it has ever been, but this perception was prevalent through much of the latter twentieth century. (President Franklin Roosevelt, decrying leaks during his tenure, wondered why the British had so many fewer leaks, even though Britain had freedom of speech and tea parties.)

Once a leak occurs, the agency whose information has been compromised can ask the Justice Department to open a criminal probe. However, there are two immediate impediments. The first is that in most cases, too many people have had access to the information to be able to pin down the source of the leak. The second is the legal basis for prosecuting a leak. There is no single statute covering leaking. The Intelligence Identities Protection Act (1982) makes it a crime for someone who has access to classified information to reveal the identity of a covert agent. It is also a crime to engage in a “pattern of activities” intended to reveal the identity of a covert agent or agents. This law was passed in reaction to the 1975 assassination of Richard Welch, the CIA chief of station in Athens. The “pattern of activities” clause was aimed at individuals such as former CIA officer Philip Agee, who made a practice of revealing the identity of CIA case officers overseas after he quit the CIA. This act was also initially at issue in the 2003 revelation that Valerie Plame was a CIA officer, which was part of the larger Iraq weapons of mass destruction (WMD) controversy. However, Lewis Libby, then chief of staff to Vice President Cheney, who became the focus of the leak investigation, was convicted in 2007 of obstruction of justice, perjury, and making false statements to federal investigators, and not of the leak itself.

The Espionage Act (1917) has also been used in leak prosecutions. Enacted months prior to the United States’s entry into World War 1, this act covers traditional espionage but is also deemed broad enough to cover leaks, even of information that is not classified but is related to the national defense. During World War I, the act was used to jail antiwar protesters, such as U.S. socialist leader Eugene V. Debs. The Espionage Act was used to convict Samuel L. Morison, a Navy intelligence officer who provided classified imagery to a British publication with whom he had a business relationship. Morison was convicted in 1985 of espionage and theft of government property.

Use of the Espionage Act became controversial in 2006 when it was used