Politics & Policy

Why Isn’t She in Cuffs?

The Justice Department needs to be aggressive in the case of the CIA leaker.

There are countless questions that arise out of the CIA’s dismissal of a prominent intelligence officer, Mary O. McCarthy (no relation), for leaking classified information to the media. But one in particular springs to mind right now: Why isn’t she in handcuffs?

The CIA’s announcement of the dismissal did not refer to McCarthy by name. But its description of the officer’s conduct was unambiguous. According to the New York Times,

A C.I.A. officer has been fired for unauthorized contact with the media and for the unauthorized disclosure of classified information,” said a C.I.A. spokesman, Paul Gimigliano. “This is a violation of the secrecy agreement that is the condition of employment with C.I.A. The officer has acknowledged the contact and the disclosures.

The Times further reports, according to unnamed officials, that McCarthy “was given a polygraph examination, confronted about answers given to the polygraph examiner and confessed.”

The case against McCarthy, moreover, is said to involve not just a single illegal disclosure of the Nation’s secrets, but several. One prominent instance is reported to involve alerting the press that the CIA had arrangements with overseas intelligence services for the detention of high-level al Qaeda detainees captured in the war on terror–from whom the culling of intelligence is critical to the safety of Americans.

The so-called “black site” prisons were later publicized by Dana Priest of the Washington Post, jeopardizing not only the detainee intelligence stream but, just as importantly, America’s relationship with the cooperating governments–on whom we rely because of our global dearth of intelligence assets, and who are now incentivized to cut-off information exchanges because they believe (with some obvious justification) that our intelligence community is not trustworthy.

As a result of all this, McCarthy was fired, stripped of her security clearance, and escorted from the CIA’s premises last Thursday. Yet, she has not been arrested.

More alarmingly, according to government officials who spoke to the Washington Post, she may not even be the subject of a criminal investigation. Indeed, unnamed Justice Department lawyers reportedly told the Times that McCarthy’s “termination could mean she would be spared criminal prosecution.”

This is hard to fathom. Federal law, specifically, Section 793(d) of Title 18, United States Code, clearly makes it an offense, punishable by up to ten years’ imprisonment, for anyone who lawfully has access to national defense information–including information which “the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation”–to willfully communicate that information to any person not entitled to have it.

McCarthy had access to classified information about our wartime national defense activities by virtue of her official position at the CIA. The compromise of that information appears to have been devastating to U.S. intelligence efforts–in wartime, no less. CIA Director Porter Goss testified before the Senate Intelligence Committee in February that the “damage” from leaks “has been very severe to our capabilities to carry out our mission.” The unauthorized disclosures were also, patently, a boon to several foreign nations, which have used it to put immense pressure–under the guise of international law–on countries that heretofore have been willing to run the risk of helping the United States battle terrorists.

In other words, this seems like a straightforward case. The Times suggests that “the C.I.A.’s reliance on the polygraph in Ms. McCarthy’s case could make it more difficult for the government to prosecute her.” That seems farfetched. Yes, lie-detector-test results–i.e., the actual findings about whether or not a person was truthful during a polygraph examination–are inadmissible in federal court. But so what? That has nothing to do with the underlying evidence of conduct. Nor should it render problematic any admissions the person makes–including any confession, such as the one McCarthy is reported to have given.

The only way a polygraph could complicate a prosecution would be if McCarthy was given immunity of some kind in exchange for submitting to it. That, however, is highly unlikely. In her sensitive job, McCarthy could no doubt be polygraphed as a condition of her employment–the government should not have needed to trade away any rights to get her to take the test.

Evidence aside, it is essential for policy reasons that this case be prosecuted aggressively. The intelligence community’s leaking of information to the media since 9/11 has been breathtaking. The Bush Justice Department’s response has not been inspiring.

Sandy Berger, the former national-security adviser who filched classified information from the national archives and then lied about it to investigators was, appallingly, given the sweetheart deal of the century: a guilty plea to a mere misdemeanor, no jail time, and even the prospect of getting his security clearance back after three years. In stark contrast, non-government persons, like the two AIPAC lobbyists scheduled to start trial shortly, face the possibility of years of imprisonment for passing information they were given by a former Defense Department official to a friendly government. (To be fair, the Defense Department official was prosecuted, although that is a long story for another day.) The public needs to know that there are not two standards of justice, and, worse, the kind of double-standard in which government coddles its own high officials while slamming ordinary citizens.

We can argue forever–and we probably will–about whether media people should be prosecuted for publishing secrets they are well aware will harm the nation and the war effort. Public officials, to the contrary, should not be a close call–they are in violation of both the law and a solemn oath.

An additional, compelling policy consideration is also at issue here. Mary McCarthy’s position–the post from which she is likely to have learned the most sensitive information at the heart of the leak controversy–was inside the CIA’s inspector general’s office. This is the unit that investigates internal misconduct. This is the unit to which government employees are encouraged to report government abuse or illegality so it can be investigated, potentially reported to Congress, and prosecuted if appropriate.

That is, it is the legal alternative to leaking national secrets to the media.

It is, therefore, the process that has to be protected if our intelligence community is to have credibility with the public and with the foreign intelligence services on which we are so dependent. If it becomes just another Washington sieve–a place where people who comply with their oaths and exercise professional discretion may nevertheless expect to find the information they confide trumpeted on Page One of the Washington Post–we are guaranteed to have much more leaking. And much less security.

Cleaning government’s own house in such weighty matters is one of the principal reasons why we have federal law enforcement.

Andrew C. McCarthy, a former federal prosecutor, is a senior fellow at the Foundation for the Defense of Democracies.

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