The Mary McCarthy Case: The Accusation against the Alleged CIA Leaker Underlines the Question of How to Protect Both Security and Democracy

By EDWARD LAZARUS

Thursday, Apr. 27, 2006

It is highly unusual for the CIA to fire one of its senior officers. But these are not usual times.

This week, the Agency fired Mary McCarthy -- who stands accused of spilling secrets to journalists about secret American-run terrorist detention centers in Europe. (She wholly denies the accusations, clearly stating that she did not leak classified materials.) And the incident is hardly isolated; to the contrary, such incidents are typical of a political dynamic that is now in place.

On one hand, this Administration -- one of the most secretive in history - is desperately seeking to clamp down on embarrassing leaks from internal dissenters. But on the other, those very dissenters are increasingly willing to feed a press corps hungry to document the blunders and deceits of a faltering regime. The sound of vultures circling can clearly be heard.

For Administration critics, it is hard not to be gleeful. We've lived through five-plus years of secret energy task forces, secret detentions in secret prisons, secret torture memos, secret NSA wiretapping programs -- and secret legal opinions about the supposed legality of all this secret stuff, and of keeping it secret. Along the way, lots of nonpartisan civil servants have found themselves intimidated into silence when they sought to question Administration edicts on issues across the board, from counter-terrorism, to tax policy, to global warming.

Thanks to Scooter Libby and some good investigative reporting on other topics, we now know that the Administration's top dogs have made a habit of skewing public information - not just about WMD, but about all kinds of more mundane issues. The Administration has a proven penchant to distort facts - even going so far as to pay reporters - in its bid for favorable press coverage and commentary. Consistent with - though also a breathtaking extension of -- this ugly tendency, is President Bush's decision to deflect criticism of his case for invading Iraq by ordering the selective (and deceptive) leaking of instantaneously declassified intelligence estimates.

But the pleasure of exposing wrongdoing, tagging the "hypocrite" label on the "Leaker-in-Chief," and watching Bush's poll numbers plummet must now yield to a more serious business: The business of trying to figure out how to balance a government's legitimate need to protect its secrets, against the right of the public to be informed and to have a government in which healthy internal disagreement is nurtured, not wiped out.

No Easy Answers: A Delicate Balance In the Pursuit of Two Crucial Goals

There are no easy answers to this problem. Much as we may be better off for knowing that America has been running a gulag of secret prisons in Europe, it is terribly dangerous for an intelligence officer to leak classified information. Whatever the public benefit of disclosure, such leaks may pose incalculable dangers to operational personnel and they also sow distrust between the United States and its partners abroad. A leaker (and, again, McCarthy denies disclosing any classified materials) has no business making this risk-benefit calculus.

At the same time, however, no government is truly airtight - and we wouldn't want it to be. History teaches the merit of Justice Brandeis' famous line: Sunlight is the best disinfectant. Investigative reporting, and the leaks that feed it, are essential to keeping government accountable.

After all, the power of government to do wrong is immense enough, without the immunity that comes from operating without risk of effective public scrutiny. In a democracy, with great power, ought to come scrupulous accountability.

Most of the time, the balance between governmental secrecy and the public's need to know seems to be struck in a reasonable way. On occasion, Administrations get embarrassed by unauthorized leaks, sometimes of classified materials. But aggressive searches to root out leakers are rare, and using grand jury subpoenas to force journalists to disclose sources is even rarer.

Generally, public servants observe their duties of confidentiality; when they don't, it's because their conscience absolutely forces them to make public a development the secrecy of which jeopardizes the very workings of our democracy.

Warrantless wiretapping and the secret network of prisons may well count as good examples here; the Pentagon Papers, in the Vietnam Era is the paradigmatic example.

In contrast, leaking the fact that Valerie Plame was a CIA agent was extremely marginal to the apparent purpose of the leakers: to discredit her husband's claims, which still appear to be entirely true. Whose conscience would have compelled them to reveal that? (Had the disclosure been, say, that she had been secretly kidnapped by terrorists to force her husband to write his Times Op Ed, that would have been directly relevant.)

And, generally, Administrations - which, after all, commonly use their own leaks to spin the news their way - recognize that the political and other costs of internal investigations outweigh the benefits of cracking down on occasional problematic disclosures. Especially if the leaker acts out of conscience and the matter is truly critical, Administrations know that the blowback they will endure for going after the leaker, will be worse than the cost of letting the leaker be. True martyrs tend to be politically popular.

Disrupting the Balance: Aggressive Pursuit of Leakers May Destroy Accountability

This ordinary accommodation of both security and liberty, however, is increasingly breaking down. Inside the government, unauthorized leaks seem to be proliferating -- as an increasing number of long-time public servants decide to risk firing or even jail to bring Administration actions to light. And in response, the Administration appears poised to take ever more aggressive deterrent measure to protect itself from such disclosures.

It's hard to know exactly what is driving this troubling dynamic. Some would portray the Mary McCarthys inside government as nothing more than disgruntled partisan Democrats coming out of the woodwork. But while our divisive politics may play some role, the main causes surely lie elsewhere.

The unauthorized leaks take place within a complex ecosystem by which career public servants air dissent, information filters through to the public, and public officials are held accountable. And this ecosystem is now badly out of whack.

Worsening the Dynamic: Single-Party Dominance and Stoppered Channels of Dissent

Through all the years of divided government - that is, when one party held the White House, and another party controlled at least one house of Congress - meaningful Congressional oversight provided a vital method for prying information out of a potentially over-secretive Executive Branch, and for airing dissenting points of view on all major policy issues. But not now.

Now, the current Republican-controlled Congress has thoroughly abdicated this oversight role. It generally refuses to probe Administration policies, and it stonewalls those few investigations that have been forced upon it by public clamor. (We're still waiting for the report on how and why the Administration misled the public on Iraq's non-existent WMD, for example.)

In addition, by many accounts, the Administration has constricted the normal channels by which public servants may air dissenting views internally. It has been reported, for example, that the CIA has a long tradition of encouraging internal debate and dissent as a way of ultimately improving intelligence analysis, but that Porter Goss, the relatively new Director, has limited this practice in favor of a more dictatorial style.

This squelching of dissent has a legal component as well. In Garcetti v. Ceballos, which will be decided before July, the Supreme Court appears likely to rule that public employees have no First Amendment right to be free from job retaliation when they present dissenting views to superiors on matters within the scope of their employment. While the government has specific whistleblower laws protecting certain employees, they are limited, and if the Court rejects a First Amendment right to dissent in Garcetti, they will be all we have left.

Recent Leaks Should Be Deemed Acts of Conscience, Not Partisanship

Worsening an already-bad situation, the failure of Congressional oversight and the imposition of monolithic thinking within government bureaucracies is coming at a time when the consequences of our political decisions seem especially momentous. In the Middle East, the toll of thousands of American dead has brought us only civil strife in Iraq and an increasingly radicalized nuclear Iran -- while diminishing our international credibility, and our chances of amassing a united response to the threat Iranian leaders now pose. And at home, we face (yet ignore) hard choices on energy and the environment where the stakes are nothing less than the inhabitability of large swaths of planet Earth.

Against this backdrop, it is folly to say that the current spate of leaks are merely acts of partisan politics. They are far better characterized as acts of desperation - and of conscience -- by frustrated public servants, and symptoms of a political system fraying at the edges. One doesn't have to be a partisan to argue against secret prisons, law-violating torture such as occurred at Abu Ghraib (revealed by a loyal soldier), secret monitoring of Americans' phone calls, or Presidentially-authorized revenge on the spouse of someone who dares to publicly dissent. Imagine a Democratic President authorizing, or allowing, all these things to happen; surely many partisan Republicans would make an outcry - as well they should.

This is not to say that government officials should be allowed to leak with impunity. Of course, they should not. It is only to say that, generally speaking, aggressive criminal investigations of truly conscience-inspired leakers, and the reporters who only do their jobs by listening to them, will exacerbate a systemic imbalance in favor of secrecy and against dissent - one that is already disserving this country.

If investigations there must be, then they need to be coupled with the re-opening of other channels for the dissemination of information and the airing of dissent. Without these, the government's legitimate need to keep secrets becomes a wholly undemocratic, unchecked power to control what we know and what we think. No Administration can be trusted with that.


Edward Lazarus, a FindLaw columnist, writes about, practices, and teaches law in Los Angeles. A former federal prosecutor, he is the author of two books -- most recently, Closed Chambers: The Rise, Fall, and Future of the Modern Supreme Court.

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